499 S.W.3d 221
Ark. Ct. App.2016Background
- Harry and Rebekah Cummings divorced after ~20 years; the trial court divided property, ordered sale of the marital home, awarded Rebekah rehabilitative alimony, and assigned her 50% of Harry’s military retirement in the decree process.
- The home sold at auction; proceeds left a modest surplus and the court adjusted alimony downward to account for an offset Harry claimed from Rebekah’s share.
- Harry later retired and was placed on full military disability, which eliminated his retirement pay but produced disability benefits; Rebekah moved to modify alimony to account for the changed benefit stream and alleged Harry withheld military-benefit information.
- The trial court ordered production of retirement information; after noncompliance and unpaid alimony, the court entered orders modifying alimony upward, issued a judgment for unpaid alimony, and held Harry in contempt for failure to pay and for discovery violations.
- Harry filed appeals and a Rule 60 motion to vacate; the Court of Appeals found the appellate record untimely as to the September 2014 judgment (so it lacked jurisdiction to review that order) but could review the denial of Harry’s Rule 60 motion filed within the proper time frame.
Issues
| Issue | Plaintiff's Argument (Harry) | Defendant's Argument (Rebekah) | Held |
|---|---|---|---|
| Jurisdiction / Timely filing of record | Record was sufficient to appeal the September 2014 order | Appellate record was not timely filed as to the first notice of appeal | Court lacked jurisdiction to review the Sept. 2014 order because the record was filed >90 days after the first notice of appeal; could review only the timely second appeal |
| Motion to vacate under Ark. R. Civ. P. 60 (fraud) | Orders should be vacated because prior submissions contained erroneous information amounting to fraud on the court | No clear, cogent, convincing proof of fraud; Rule 60 relief unavailable after 90 days absent fraud proven with strong evidence | Trial court did not abuse discretion; Harry failed to prove fraud by required standard, so Rule 60 relief was properly denied |
| Contempt finding | Contempt for failure to pay alimony was improper | Contempt rested on two independent grounds: failure to pay alimony and failure to comply with discovery | Affirmed — because one uncontested ground (discovery noncompliance) supports contempt, appellate challenge to only the alimony ground fails |
| Alimony increase based on disability benefits | Court erred by using disability benefits to increase alimony (arguing retirement/divisible benefits changed) | Court may consider disability income when awarding alimony; overall factors (income disparity, marriage length) support award | Affirmed — trial court did not abuse discretion; disability income is a permissible basis to determine alimony and facts supported increase |
Key Cases Cited
- Hickson v. Ark. Dep’t of Human Servs., 357 Ark. 577 (2004) (timely filing of the record on appeal is jurisdictional)
- Grand Valley Ridge, LLC v. Metropolitan Nat’l Bank, 2012 Ark. 121 (discretion to set aside judgment under Rule 60)
- Delgado v. Delgado, 2012 Ark. App. 100 (abuse-of-discretion standard for Rule 60 determinations)
- Pearrow v. Feagin, 300 Ark. 274 (when a decision rests on alternative grounds and appellant challenges only one, court must affirm)
- Taylor v. Taylor, 369 Ark. 31 (standard of review for alimony is abuse of discretion)
- Wadley v. Wadley, 2012 Ark. App. 208 (lists primary factors for alimony determinations)
- Murphy v. Murphy, 302 Ark. 157 (disability income is not divisible but may be considered in awarding alimony)