{ "id": 6142430, "name": "Leon ABBOTT v. Ann ABBOTT", "name_abbreviation": "Abbott v. Abbott", "decision_date": "2002-11-13", "docket_number": "CA 02-196", "first_page": "413", "last_page": "422", "citations": [ { "type": "official", "cite": "79 Ark. App. 413" }, { "type": "parallel", "cite": "90 S.W.3d 10" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "70 Ark. App. 403", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142650 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/70/0403-01" ] }, { "cite": "73 Ark. App. 303", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141664 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/73/0303-01" ] }, { "cite": "347 Ark. 74", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683184 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/347/0074-01" ] }, { "cite": "68 Ark. App. 281", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140361 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/68/0281-01" ] }, { "cite": "70 Ark. App. 43", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136994 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/70/0043-01" ] }, { "cite": "73 Ark. App. 325", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142065 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/73/0325-01" ] }, { "cite": "75 Ark. App. 217", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140199 ], "weight": 5, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/75/0217-01" ] } ], "analysis": { "cardinality": 771, "char_count": 16898, "ocr_confidence": 0.732, "pagerank": { "raw": 2.31373750338026e-07, "percentile": 0.7887498460334946 }, "sha256": "3c7621408b06c30cfd0bb5b638db8c46125f923e7f7eec957ce5afc7c3871811", "simhash": "1:c9a4e0a72a410f4f", "word_count": 2842 }, "last_updated": "2023-07-14T22:52:26.957939+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Stroud, C.J., and Roaf, J., agree." ], "parties": [ "Leon ABBOTT v. Ann ABBOTT" ], "opinions": [ { "text": "Josephine Linker Hart, Judge.\nThis is an appeal from an order awarding judgment for $17,511 to appellee Ann Abbott ten months after she and appellant Leon Abbott were divorced. Appellant argues that this judgment was an impermissible modification of the divorce decree. Appellee contends that it was merely an interpretation and enforcement of that decree. We agree with appellee.\nThe parties were married in June 1975 and separated in September 1997. Their son was born in 1983. Appellee was awarded a divorce from appellant on October 11, 2000, in the Benton County Chancery Court. In the divorce decree, the judge stated that the parties had agreed to the division of the marital property; that appellee was to receive the 1996 Plymouth Breeze; and that appellant would be responsible for the outstanding debt on the car. The decree provided: \u201c[Appellant] shall pay to [appellee], or provide proof of payment to [appellee], the full amount of the outstanding indebtedness against her 1996 Plymouth Breeze through APG [Aberdeen Proving Ground] in Aberdeen, Maryland, and [appellant] shall sign the bill of sale attached hereto, relinquishing all claim to said vehicle. ...\u201d With regard to child support, the decree stated: \u201c[Appellee] hereby accepts full payment of the balance of indebtedness on her Plymouth Breeze by [appellant] as full satisfaction of all child support, past and future, for the support of said minor child.\u201d The decree also stated that appellee would receive \u201c[o]ne-half of [appellant\u2019s] retirement accumulated from the date of marriage on June 28, 1975 through the date of separation on September 16, 1997.\u201d The decree set forth appellant\u2019s obligation with regard to the division of his \u201cretirement\u201d as follows:' \u201c[Appellant] shall provide proof of the existence of his retirement and the current status of that retirement, along with the name of the plan so that a qualified domestic relations order [QDR.O] can be provided to the plan holder for the disbursement to [appellee] for her portion of the funds.\u201d The decree concluded with the following provision: \u201cThat this Court shall retain jurisdiction of this cause for such further orders as may be necessary and proper concerning the enforcement of this decree.\u201d\nAppellant signed the bill of sale attached to the divorce decree, giving all of his \u201crights, title and interest\u201d in'the Plymouth to appellee. He did not, however; pay off the entire debt on the car but simply continued to make the monthly payments.\nWith regard to his \u201cretirement,\u201d appellant provided appellee\u2019s attorney with a copy of the pension agreement between his employer, Bethlehem Steel Corporation, and the United Steelworkers of America. He did not, however, provide appellee with any information as to his vested amount in the pension plan, nor did he inform appellee that he also had a 401 (k) plan and a stock ownership plan with Bethlehem Steel that was managed by Fidelity Institutional Retirement Services Company in Boston, Massachusetts. Bethlehem Steel forwarded to Fidelity a QDRO sent by appellee\u2019s attorney, and Bethlehem Steel mailed a letter to appel-lee\u2019s attorney on January 12, 2001, stating that it had done so.\nOn January 31, 2001, appellant\u2019s attorney sent the following letter to Fidelity:\nPlease be advised that a letter dated January 12, 2001, was sent to counsel in this matter from Bethlehem Steel Corporation reflecting that correspondence from attorney Lisa Gaddy [appel-lee\u2019s attorney] dated November 8 and November 16, 2000, in a proposed domestic relations order concerning Leon W. Abbott, Jr., (Social Security NO. [ XXX-XX-XXXX ]) was sent to you for action concerning the 401K Plan of Leon W. Abbott, Jr. We are somewhat concerned about this matter, in that apparently nobody checked the QDRO which does not have any application to Mr. Abbott\u2019s 401K Plan being handled by Fidelity. We want to head this matter off before any deductions are made or any tax liabilities arise for Mr. Abbott.\nThe sole application of the QDRO was to Mr. Abbott\u2019s Bethlehem Steel Corporation Retirement. It had nothing to do with his 401K Plan. If there is any action that is being taken or anticipated with respect to the 401K, please review the QDRO and contact our office if necessary. I would ask that no action be taken on the 40IK Plan until we receive some correspondence back from you.\nOn February 23, 2001, Fidelity sent a notice to appellee\u2019s attorney that the file could not be completed because appellee\u2019s date of birth had not been provided. That same day, Fidelity also sent a letter to both parties\u2019 attorneys acknowledging receipt of two QDROs dated November 7, 2000, and November 16, 2000, from appellee\u2019s attorney. Fidelity stated that it would review the November 16, 2000, order to determine if it was qualified pursuant to the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code. Fidelity stated that a disbursement restriction had been placed on the account while the matter was in legal review and added:\nPlease note that we are also in receipt of a letter from Attorney Pawlik [appellant\u2019s attorney] dated January 31, 2001 in which he states the Domestic Relations Order was intended to be on the Bethlehem Pension Plan, not the defined contribution Plan. Again, we request that we be notified immediately if the parties do not wish to have the November 16, 2000 order reviewed for the 401 (k) Retirement Savings Plan for Certain Represented Employees of Bethlehem Steel Corporation and Subsidiary Companies.\nIf we do not hear otherwise, we will review the Order dated November 16, 2000 and advise you in writing in approximately sixty business days regarding the status of said Order.\nOn April 17, 2001, appellee filed a motion for contempt against appellant, stating that he had failed to provide her with the amount in his retirement plan or tell her what types of retirement plans were available to him as an employee of Bethlehem Steel. She stated that her attorney had learned that appellant had access to a savings plan, a 401(K) retirement savings plan, and a stock ownership plan at Bethlehem Steel. She also said that appellant had failed to provide her with proof that he had paid the full amount of the outstanding debt on the Plymouth. Appellee requested that appellant be jailed until he complied with the previous orders of the court. In his answer, appellant stated that he had provided appellee with a copy of the Bethlehem Steel retirement plan and that he was not required to provide her with information about any other plan. He also said that he had been making monthly payments on the Plymouth.\nA hearing was held on the motion for contempt on July 31, 2001, and both parties appeared with their attorneys. Appellee\u2019s attorney stated that Fidelity had rejected the QDROs because she could not identify a specific retirement plan. Appellee testified that it was her understanding that the divorce decree had required appellant to provide her with proof of all of his retirement benefits but that, with the exception of the Bethlehem Steel retirement plan booklet, he had failed to do so. She stated that she had received no information as to the amount of money in any retirement plan. She also said that she understood that the divorce decree had required appellant to satisfy the debt on the Plymouth and that, although he had given her the bill of sale, he had failed to provide her with proof that the debt had been paid.\nAt the conclusion of appellee\u2019s testimony, the judge stated to appellant\u2019s attorney:\nLook I just want to tell you this, if you and your client don\u2019t provide all of the information that she needs to make application for, and receive these benefits, then he\u2019s going to stay in the jail until \u2014 whatever. Now, you do it. And I\u2019m gonna go out to my office right now and you all do this before I come back. Now don\u2019t give me a bunch of run around or shake your head. You all know what the spirit of the Order was, now offer it up.\nAt the conclusion of the recess, appellant testified that he had produced the necessary information. He admitted that he had a 401 (k) retirement savings plan that had contained $34,263.23 on September 30, 1997; that he had a stock ownership plan with Bethlehem Steel that was valued at $362.10 as of July 1997; and that his vested amount in the Bethlehem Steel pension plan was $397 in September 1997. Appellant explained that, at the time of the divorce, he had understood that only the Bethlehem Steel pension plan was included within the term \u201cretirement\u201d in the decree. Appellant also admitted that Aberdeen Proving Ground still held a lien on the Plymouth. He explained that he was making periodic payments on the Plymouth in lieu of child support and that he did not believe that the divorce decree required him to immediately pay the outstanding balance.\nAt the conclusion of the hearing, the judge did not find appellant to be in contempt. He stated that he interpreted the decree\u2019s provision regarding appellant\u2019s \u201cretirement\u201d as including the 401 (k) plan, the stock-sharing plan, and the pension plan. Adding the amounts in those plans, he found that appellee was entitled to $17,511 and stated:\nAnd the best I could tell, because I think that all of those items were \u2014 it was the intent of the Decree to include those items in the Decree \u2014 and to be divided. It doesn\u2019t make any sense for it to be otherwise.\nAnd I . . . don\u2019t understand how you can think, sir, that. . . you can give her a Bill of Sale without having paid for the car, and still leave a lien that attaches to the vehicle over there in Maryland. . . .\nAnyhow, [appellee] will have judgment for Seventeen Thousand Five Hundred Eleven Dollars ($17,511) at ten (10) percent. And ... I\u2019ll give you . . . sixty (60) or ninety (90) days to clean up the car problem.\nAppellant\u2019s attorney then raised the following questions regarding the QDRO:\nMr. Pawlik: Well, Your Honor, as the Court is probably aware of with regard to the anything that is a 401 (k), policy for the withdrawal of funds from that policy, require at least a ten (10) percent penalty.\nThe Court: Not with a QDRO.\nMr. Pawlik: I\u2019m sorry.\nThe Court: Not when you have a QDRO.\nMr. Pawlik: I mean, as long as they\u2019re \u2014 I mean, my only concern is that there will be a ten (10) percent penalty, or assume the tax liability.\nThe Court: No, not under a QDRO. That\u2019s why the QDRO is there. It\u2019s one of those IRS deals. That\u2019s why the Court gets involved.\nOn August 29, 2001, the judge entered an order granting appellee a judgment in the amount of $17,511 and giving appellant sixty to ninety days to \u201cclean up the title\u201d to the Plymouth. It is from this order that appellant has appealed.\nArguments\nAppellant makes the following arguments on appeal: (1) the judge improperly modified the divorce decree more than ninety days after its entry in violation of Arkansas Rule of Civil Procedure 60; (2) the trial court lost jurisdiction to modify the decree because the omission of appellant\u2019s 401 (k) and employee stock ownership plans was not a clerical error; (3) the entry of judgment for $17,511 against appellant violates the Internal Revenue Code; (4) the judge lacked the authority to modify the parties\u2019 agreement regarding the disposition of their property; (5) the judge erred in ordering appellant to provide clear title to the Plymouth; (6) the August 29, 2001, order directing appellant to clean up the title to the Plymouth within sixty to ninety days is too vague and ambiguous to be enforced. Our disposition of appellant\u2019s first point makes it unnecessary to address his second, third, and fourth points.\nStandard of Review\nDecisions rendered by courts of equity are reviewed de novo on appeal, and are not reversed unless we find that the trial judge\u2019s decision is clearly erroneous. Narup v. Narup, 75 Ark. App. 217, 57 S.W.3d 224 (2001).\nThe Trial Court\u2019s Jurisdiction\nAppellant argues that the judge modified the divorce decree by awarding judgment for $17,511 to appellee and that the trial court had lost jurisdiction to do so. It is true that, according to Ark. R. Civ. P. 60, with the exception of clerical errors and certain exceptions not applicable here, the trial court did not have jurisdiction to modify the decree. However, it is apparent to us that the judge\u2019s decision was not a modification of the decree but was, instead, an interpretation, clarification, and enforcement of the divorce decree.\n\u2022 After ninety days, without the showing of one of the exceptions listed in Rule 60, a court has no power to modify or set aside an order. Sims v. First State Bank of Plainview, 73 Ark. App. 325, 43 S.W.3d 175 (2001). A trial court, however, has inherent power to enter an order for the purpose of correcting a judgment to ensure that the judgment is truthful and that it accurately reflects the court\u2019s original ruling. Narup v. Narup, supra. The power is not absolute, and the court is limited to correcting the order to reflect the action the court actually took as demonstrated by the record rather than the action the court should have taken. Id. This being so, a trial court has the power to correct a decree to accurately reflect its original ruling or to interpret its prior decision. Id. When the divorce decree is ambiguous, the trial court has jurisdiction to make changes that clarify what the court originally intended. Holt v. Holt, 70 Ark. App. 43, 14 S.W.3d 887 (2000).\nAs a general rule, judgments are construed like any other instrument; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. Fox v. Fox, 68 Ark. App. 281, 7 S.W.3d 339 (1999). Here, the divorce decree\u2019s reference to \u201cretirement\u201d was shown to be latently ambiguous. Appellant\u2019s employer actually had three types of plans, and appellee testified that she had believed the decree awarded her a one-half interest in all of them. The judge agreed, and we find that his construction of the decree is not clearly erroneous. Thus, his award of $17,511 to appellee was well within the court\u2019s jurisdiction to interpret, clarify, and enforce the original divorce decree.\nHowever, it is also evident, from the judge\u2019s statements quoted above, that he construed the decree as requiring the judgment to appellee to be satisfied through the entry of a QDR.O. When appellant\u2019s attorney voiced his concerns about the tax liability for the distribution, the judge replied that appellant would not bear the tax liability because a QDR.O would be entered. However, the judgment to appellee for $17,511 does not provide that a QDR.O be entered, and this must be corrected. Therefore, we affirm the award of judgment to appellee and remand with directions to the judge to require that a QDR.O be executed awarding appellee that amount.\nThe Plymouth\nAppellant also contends that the trial judge misinterpreted the divorce decree as requiring him to immediately pay the full amount of the debt on the Plymouth. We disagree. Although the decree does not state a specific time for the satisfaction of the debt, its requirement that appellant sign a bill of sale, and appel-lee\u2019s testimony that she believed she was entitled to immediate satisfaction of the debt, convince us that the judge\u2019s construction of the decree is not clearly erroneous.\nAppellant also argues that the order directing appellant to clean up the title to the Plymouth within sixty to ninety days is too vague to be enforced. Because appellant has cited no authority for this argument, and because the trial judge clearly expressed the inconsistency of a bill of sale with an outstanding lien, we need not address it. See Stilley v. James, 347 Ark. 74, 60 S.W.3d 410 (2001).\nAffirmed as modified and remanded.\nStroud, C.J., and Roaf, J., agree.\nRule 60 provides that a court may modify a judgment after ninety days when the court seeks to correct a clerical error, or if the party demonstrates that the circumstances warranting a modification fall within seven enumerated grounds. These grounds include: (1) granting a new trial because evidence was discovered after ninety days; (2) granting a new trial in proceedings against a defendant who was constructively summoned and failed to appear; (3) misprisions of the clerk; (4) misrepresentation or fraud; (5) erroneous proceedings against a minor or person deemed incompetent; (6) the death of one of the parties; (7) errors in a judgment shown by an infant within twelve months after reaching eighteen years. Slusher v. Slusher, 73 Ark. App. 303, 43 S.W.3d 189 (2001).\nA latent ambiguity arises when collateral facts exist that make a term\u2019s meaning uncertain. Oliver v. Oliver, 70 Ark. App. 403, 19 S.W.3d 630 (2000).", "type": "majority", "author": "Josephine Linker Hart, Judge." } ], "attorneys": [ "Paul D. Reynolds, for appellant.", "Lisa Lundeen-Gaddy, for appellee." ], "corrections": "", "head_matter": "Leon ABBOTT v. Ann ABBOTT\nCA 02-196\n90 S.W.3d 10\nCourt of Appeals of Arkansas Division III\nOpinion delivered November 13, 2002\nPaul D. Reynolds, for appellant.\nLisa Lundeen-Gaddy, for appellee." }, "file_name": "0413-01", "first_page_order": 439, "last_page_order": 448 }