Morehead, however, did not follow through on complying with our Rules about supplementary discovery responses. Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005) is on point and controlling. In that divorce case, the husband omitted some Exxon stock from his list of assets in his discovery responses and in his testimony.
Addition to Reporter's Notes, 1999 Amendment. Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005) is on point and controlling. In that divorce case, the husband omitted some Exxon stock from his list of assets in his discovery responses and in his testimony.
the Court's decree as to custody of the parties' minor child, I considered the undisputed, uncontroverted facts that the defendant signed a waiver on November 9th, 2005, which the plaintiff submitted to him, and that on that date he also signed the parties' divorce decree; on November 19th, 2005, the plaintiff sent an e-mail to what became her current employer, Defendant's 3; this Court entered its decree, approved by the parties, on December 1st, 2005; and on December 2nd, 2005, the plaintiff had telephone contact with her current employer, which resulted in an interview with that employer on December 9th, 2005; given that the plaintiff and defendant both acknowledge that the defendant signed the waiver, admitted as Defendant's Exhibit 1, based on their conversations and the proposed arrangement regarding custody and visitation. As to the law applied in this case, I reviewed the decision of the Arkansas Supreme Court in the case of Dickson v. [Fletcher]. Counsel, that citation is 206 S.W.3d 229. In that opinion the court said that 'This court has held that constructive fraud for the breach of a legal or equitable duty to another warrants setting aside or modifying a judgment.
In accordance with the canons of statutory interpretation, unless a statute expressly states otherwise, it is presumed that the legislature intends for it to apply prospectively or on the date of its enactment. Dickenson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005). However, our supreme court has determined that procedural and remedial legislation is appropriately applied retroactively because these changes do not disturb vested rights or create new obligations.
The purpose of Rule 5(b)(3) is not to require that a party must serve summonses with motions to modify a final decree when the court has reserved continuing jurisdiction. Dickson v. Fletcher, 361 Ark. 244, 249, 206 S.W.3d 229, 232 (2005). Instead, Rule 5 directs that “such motions are required to be served in the same manner or method required for a summons and complaint [.]” Dickson, 361 Ark. at 249, 206 S.W.3d at 232 (Emphasis added.)
Moreover, and critical to the court's decision, the court found that Keiko's reliance on this opinion was neither reasonable nor justifiable. Keiko claims that her case is factually and legally similar to Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005), because Jeffrey induced her to settle their property rights by telling her something that was not true just as Mr. Dickson induced his wife to settle without having all the relevant facts. Keiko's reliance on Dickson is misplaced.
He alleges fraud on the court by Diana's assertion that there was not a substantial reason to believe Jeffrey was not the father of T.H. In support of his argument, Jeffrey cites to Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005), where this court affirmed the use of Rule 60(c)(4) to modify a divorce decree when the former spouse had failed to disclose securities as marital assets. Diana counters that in Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007), this court rejected the application of Rule 60(c)(4) to the issue of paternity established under a divorce decree because of the policy considerations in delegitimizing a child.
In the case at hand, Jeffrey's motion to set aside the divorce decree is a claim for relief that is still pending in the circuit court. See Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005) (holding that, although a motion to set aside a divorce decree is a new or additional claim for relief under Rule 5(a), service of an accompanying summons was not required where the circuit court had reserved continuing jurisdiction). Because a claim for relief remains outstanding and there is no Rule 54(b) certification from the circuit judge, this court is without jurisdiction to hear this appeal due to lack of a final, appealable order.
Specifically, Martin claims that, pursuant to Arkansas Civil Procedure Rule 60, he is entitled to relief. Rule 60(c)(4) provides that a judgment may be set aside any time after ninety days "[f]or misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party." Martin points out that in Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005), this court extended the operation of Rule 60(c)(4) to include constructive fraud where a husband failed to disclose his ownership of securities in his discovery responses and the divorce decree entered in 1994 did not address division of the nondisclosed securities as marital property. Martin argues that, like the appellant in Dickson, he should have an opportunity to modify his divorce decree because his ex-spouse committed fraud.
In Adam's brief, he argues that the modification should be affirmed, and he cites Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005), where the supreme court affirmed the modification of the parties' divorce decree under Rule 60(c)(4) because the husband had committed fraud. However, the Dickson case further illustrates why the present case should be reversed.