                                  Cite as 2015 Ark. App. 311

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                       No. CV-14-368


TAMMY WILCOXON                                     Opinion Delivered   May 13, 2015
                               APPELLANT
                                                   APPEAL FROM THE ASHLEY
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. DR-2011-98-2]

WILLIAM TONY THOMAS                                HONORABLE KENNETH
                                  APPELLEE         JOHNSON, JUDGE

                                                   REVERSED AND REMANDED TO
                                                   REINSTATE ORIGINAL DECREE;
                                                   CROSS-APPEAL DISMISSED AS
                                                   MOOT; MOTION TO DISMISS
                                                   DENIED

                                BART F. VIRDEN, Judge


       Tammy Wilcoxon appeals from an order modifying a divorce decree. The issue we

must first decide is whether the circuit court erred in amending its original order in light of

Arkansas Rule of Civil Procedure 60(a) (2010). We hold that under Rule 60(a) the circuit

court abused its discretion, and we reverse its ruling.

                                 I. Facts and Procedural History

       On October 1, 2012, the circuit court tried the divorce case of the parties. Following

the trial, the circuit court conducted a phone conference with the attorneys for the parties

concerning various issues relating to the decree. Believing all the parties were in agreement,

the circuit court entered the divorce decree on October 18, 2012, in which it determined that

Wilcoxon was not entitled to additional alimony payments because she failed to meet a
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condition precedent included in the antenuptial agreement. The order also set child-support

payments and visitation. The decree was not signed by Wilcoxon and was inadvertently faxed

to the wrong number.

       On December 14, 2012, Wilcoxon filed a motion to set aside the divorce decree. In

her motion she claimed that her attorneys had no reason to believe that an order had been

provided to the court or that a signed decree could have been filed. Wilcoxon asserted that

on November 20, 2012, thirty-two days after the decree had been filed, she received the first

notice from Thomas’s attorneys that an order had been entered. She asserted that Rule 60(a)

“provides that in order ‘to correct errors or mistakes or to prevent the miscarriage of justice,

the court may modify or vacate a judgment, order or decree on motion of the court or any

party, with prior notice to all parties within ninety days of its having been filed with the

clerk’” and that “allowing this order to be controlling over the parties will . . . be a

miscarriage of justice.”

       On January 2, 2013, Wilcoxon filed a motion for extension of time to file her appeal.

In her motion she asserted that she contacted the clerk of the court in person and by phone

several times over the course of October and November, and she was told in error that an

order had not been entered. Thomas contradicts this assertion in his response brief. Thomas

argues that in the first week of November, he and his ex-wife discussed the issue of whether

health insurance premiums would be included in child-support payments. He asserted that

when Wilcoxon said she did not have a copy of the decree, he told her to contact her

attorney.


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       In his brief in opposition to the motion to set aside the decree, Thomas also claims that

he sent both a letter and an email on November 15 (the notice of appeal was due November

18) explaining that an order had been entered:

       While Ms. Gattis would like to give the impression that she was not retained until after
       the appeal time expired (November 18), that is not true. She contacted Defendant’s
       lawyer by letter dated November 13. The undersigned immediately wrote her back
       by email and mail dated November 15, 2012, prior to the expiration of the time for
       appeal. In the email correspondence, Ms. Gattis was told that an order had been
       entered. A copy of the order was mailed to her.

       On January 7, 2013, the circuit court held a hearing on Wilcoxon’s motion to set aside

the divorce decree. On January 18, 2013, ninety-two days after the original order, the circuit

court denied Wilcoxon’s motion to extend time for filing and her motion to set aside the

decree of divorce, and it entered an amended decree of divorce. In the order, the circuit court

cited Rule 60 generally, not identifying precisely which subsection it was relying upon:

               Pursuant to Rule 60 of the Arkansas Rules of Civil Procedure, the Court on
       its own motion, hereby amends the original decree entered of record on October 18,
       2012, to correct a mistake. The Court intended to include an order which provided
       that the parties would equally share in the cost of health insurance premiums for major
       medical, dental and vision presently covering the minor child which the Plaintiff has
       through her employer and that the parties shall equally share in the cost of all
       uncovered medical expenses for the minor child. This Order will be retroactive back
       to the date of October 18, 2012.

       Thomas argues that Arkansas Rule of Civil Procedure 60 did not confer to the court

the authority to modify the decree of divorce.1 We agree.




       1
        In his response brief Thomas cross-appeals, asking that the court remand the case
to allow him to request attorney’s fees.

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                                     II. Standard of Review

       It is within the discretion of the circuit court to determine whether it has jurisdiction

under Rule 60 to set aside a judgment, and the question on appeal becomes whether there

has been an abuse of that discretion. Watson v. Connors, 372 Ark. 56, 57, 270 S.W.3d 826, 828

(2008). In an appellate court’s review of a circuit court’s order to determine whether there

has been an abuse of discretion, the appellate court will not substitute its own decision for that

of the circuit court but will merely review the case to see whether the decision was within

the latitude of decisions which a judge or court could make in a case. Scales v. Vaden, 2010

Ark. App. 418, 376 S.W.3d 471.

                           III. Arkansas Rule of Civil Procedure 60(a)

       Arkansas Rule of Civil Procedure 60(a) concerns the circuit court’s ability to modify

an order due to mistake:

       (a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage
       of justice, the court may modify or vacate a judgment, order or decree on motion of
       the court or any party, with prior notice to all parties, within ninety days of its having
       been filed with the clerk.

       As we set forth above, the circuit court entered a new order on January 18, 2013, in

which it stated, “Pursuant to Rule 60 of the Arkansas Rules of Civil Procedure, the Court

on its own motion, hereby amends the original decree entered of record on October 18,

2012, to correct a mistake.” Subsection (a) governs the correction of mistakes within ninety

days. As the amended order was entered past the ninety-day time limit, subsection (a) cannot

apply here. However, the circuit court also states in its order that the amendment deals with

the disposition of issues that it intended to include in the original order, which indicates that

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it might have intended to amend the order pursuant to subsection (b) of Rule 60.

                           IV. Arkansas Rule of Civil Procedure 60(b)

       Subsection (b) permits the court to correct clerical errors at any time. In Linn v. Linn,

99 Ark. App. 407, 261 S.W.3d 471 (2007), this court held that Rule 60(b) did not allow the

circuit court to correct an error very similar to the one in the present case because the error

was not clerical in nature. In Linn, the appellee did not realize that the divorce decree entered

by the circuit court awarded a strip of land to her ex-husband that prevented her from

accessing the road from her land. She voiced no objection when the order was entered but

then later discovered the error. After some disagreement about the enforcement of the decree,

the circuit court ordered mediation. The parties reached an agreement, and the memorandum

of understanding was adopted into an amended divorce decree on April 21, 2005. Problems

arose again, and after another hearing the circuit court entered a final order dated August 25,

2006, that declared the division of land was in error due to a mistake in the survey, and the

strip of land in dispute now belonged to the appellee. Our court held that,

       [t]he only possible basis for the circuit court’s jurisdiction under Rule 60 is contained
       in subsection b, which permits the trial court, at any time, to “correct clerical mistakes
       in judgments, decrees, orders, or other parts of the record and errors therein arising
       form oversight or omission.” The trial court seemed to rely on this subsection, based
       on its reference in the amended order to “errors” in the divorce decree and the survey.


Id. at 411-12, 261 S.W.3d at 474-75. Our court in Linn goes on to distinguish the mistake

in that case from clerical errors:

              However, the amended order did not correct any “errors” of the type
       contemplated by Rule 60(b). The 2005 decree contained no clerical mistake, such as
       an inaccurate mathematical calculation or misidentification of a party by the court. Nor

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       was there an oversight or omission in the 2005 decree, in the sense that the trial court
       inadvertently failed to set out a matter it originally intended to include. Further, the
       amended order did not merely clarify or interpret the 2005 decree. Rather, the court
       went beyond these parameters and supplemented the prior decree by deciding issues
       that were not previously before it, and which the parties had never agreed upon . . .
       Essentially, the court tried to reform or re-write the parties’ independent property-
       settlement agreement and mediation agreements, which were incorporated in the prior
       decree to include these new features.

Id. (emphasis added). Similarly, in the present case the circuit court cites “mistake” as the

ground for amending the order. The circuit court describes the mistake as an omission of the

disposition of matters it meant to include in the original order. This is not accurate. Instead,

the circuit court entered an order it mistakenly believed all parties agreed upon but

nonetheless was the order that it fully intended to enter. After the error was brought to light,

the circuit court amended its order. The error was not an inadvertent omission on the circuit

court’s part. The circuit court’s mistaken belief that the parties agreed defines the error here,

and that error is not clerical in nature. In the circuit court’s letter to the attorneys for the

parties, dated October 3, 2013, it explains how the original order came to be entered:

              At the request of counsel, the Court conducted a phone conference shortly after
       the October 1, 2012 hearing concerning the above stated issue [antenuptial
       agreement]. Unfortunately this phone conference was not reported and only involved
       the Court and two attorneys then representing the parties. As a result of that
       conference, the Court, believing the parties were in total agreement, signed a Decree
       of Divorce on October 15, 2012 which was entered of record on October 18, 2012.

       The circuit court goes on to explain that when it realized the parties disagreed and

there was some confusion as to when Wilcoxon was made aware of the order, it entered an

amended order:

       When Plaintiff retained new counsel and issues were raised concerning sufficient actual
       notice to Plaintiff and the opportunity of Plaintiff to review the Decree, this Court

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       entered an Amended Decree of Divorce incorporating the terms of the original
       Decree.

By the circuit court’s own characterization, the error was not clerical and did not fall under

Rule 60(b). Wilcoxon correctly identified the error as falling under Rule 60(a), mistake, in

her motion to set aside the order; therefore, the circuit court had no jurisdiction to enter an

amended order after the ninety-day time limit. Thomas’s cross-appeal is rendered moot. In

light of our opinion herein, Thomas’s motion to dismiss appeal is denied.

       Reversed and remanded to reinstate original decree; cross-appeal dismissed as moot;

motion to dismiss denied.

       GRUBER and WHITEAKER, JJ., agree.

       Owings Law Firm, by: Tammy B. Gattis, for appellant.

       Laurie A. Bridewell; and
       Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee.




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