Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Toney v. Burgess

Court of Appeals of Arkansas, Division I

January 31, 2018

TABATHA BURGESS TONEY APPELLANT
v.
JERRY BURGESS APPELLEE

         APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63DR-16-7-1] HONORABLE BOBBY D. McCALLISTER, JUDGE

          Ballard & Ballard, P.A., by: Andrew D. Ballard, for appellant.

          Ellis Law Firm, P.A., by: George D. Ellis, for appellee.

          RAYMOND R. ABRAMSON, Judge

         AFFIRMED

         Appellant Tabatha Burgess, now known as Tabatha Toney (Toney), appeals the circuit court's reformation of a decree reflecting a mutual mistake. Toney argues that (1) the circuit court admitted evidence in violation of the parol-evidence rule, (2) the circuit court was without jurisdiction to modify the decree pursuant to Arkansas Rule of Civil Procedure 60, and (3) the circuit court's reformation of the decree was clearly erroneous because there was no evidence to support a finding of mutual mistake. We disagree and affirm.

         I. Factual and Procedural History

          Toney filed a complaint for absolute divorce from appellee Jerry Burgess on January 5, 2016. The parties negotiated a property-settlement agreement and signed the agreement on July 11, 2016. The circuit court signed the Decree for Divorce incorporating but not merging the Property Settlement Agreement (Agreement) on July 29, 2016. In its order, the circuit court reserved general jurisdiction over the case to ascertain and enforce all rights and obligations of the parties under the decree. The Agreement provided that "Wife agrees to pay the 2014 personal property tax debt." On September 8, 2016, Burgess filed a "Motion to Correct Scrivener's Error, " and the circuit court held a hearing on the motion on November 22, 2016.

         At the hearing, Burgess testified that the Agreement should have read "Wife agrees to pay the 2014 income tax debt" instead of "Wife agrees to pay the 2014 personal property tax debt." The 2014 personal property taxes were $225.36, and the 2014 income taxes were $12, 500. Burgess testified that he did not discover the error in the Agreement until Toney mentioned to him on the phone that she did not have to pay the income taxes according to the paperwork and laughed at him. Toney testified that she did not laugh at Burgess and that she believed the settlement properly reflected the agreement of the parties that she would pay the personal property taxes. Burgess's attorney, George Ellis, stated to the circuit court that it was an overlooked error on his part and that the agreement was supposed to read "income tax debt" rather than "personal property tax debt." The circuit court stated that, based on everything it had seen and heard, the parties intended to settle the income tax debt. The circuit court found a mutual mistake and reformed the decree to reflect this correction. The circuit court signed its order modifying the decree on November 29, 2016.

         II. Rule 60

         First, Toney alleges that the circuit court lacked jurisdiction to modify the decree because it violates the ninety-day restriction in Arkansas Rule of Civil Procedure 60(a) and was not entered to correct a clerical error described in Rule 60(b).

         A circuit court may modify an order or decree within ninety days of entry to correct errors or mistakes in the decree. Ark. R. Civ. P. 60(b). A circuit court's findings under Rule 60 are reviewed under an abuse-of-discretion standard. Linn v. Miller, 99 Ark.App. 407, 261 S.W.3d 471 (2007). The circuit court may modify the decree after ninety days of its entry to correct clerical errors. Ark. R. Civ. P. 60(b). When parties to a divorce action enter into an independent agreement to settle property rights, the agreement may not be subsequently modified once approved by the court and incorporated into the decree. Jones v. Jones, 26 Ark.App. 1, 759 S.W.2d 42 (1988). However, a general reservation of jurisdiction will allow a circuit court to modify a decree after ninety days with respect to issues that the circuit court considered in the original action. Carver v. Carver, 93 Ark.App. 129, 217 S.W.3d 185 (2005).

         Although this was not a clerical error contemplated by Rule 60(b), the circuit court had jurisdiction to modify the decree more than ninety days after its entry. The circuit court reserved jurisdiction over the decree and therefore did not violate Rule 60 by exercising jurisdiction. As we stated in Jones, the circuit court may modify the decree with respect to issues that it considered. Since the court specifically considered the issue of payment of income tax debt, the court retained jurisdiction to modify that issue. The record also shows that the circuit court determined everything the parties said and did reflected that they intended to include the "2014 income tax debt." Therefore, the circuit court did not abuse its discretion in finding that it retained jurisdiction over the issue through the general reservation in the decree.

         Toney relies on Linn to support her argument that the circuit court did not have jurisdiction to modify its decree under Rule 60. In Linn, we held that the circuit court abused its discretion when it modified a decree after ninety days had passed because the modification of the decree concerned issues that were not considered by the circuit court in the original action. The decree provided for property settlement, and the circuit court subsequently modified its decree to provide for a subsequent sale of property and contribution by the other party to extinguish the mortgage on the property. We ruled that, since these issues were not considered by ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.