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
Law Firm, P.A., by: George D. Ellis, for appellee.
RAYMOND R. ABRAMSON, Judge
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.
Factual and Procedural History
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,
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.
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
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).
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.
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 ...