Opinion
CA09-128
Opinion Delivered September 16, 2009
Appeal from the Scott County Circuit Court, [No. DR-2006-08], Honorable David H. Mccormick, Judge, Affirmed.
Joan Howard appeals from the circuit court's denial of her motion to reopen the parties' divorce case to divide additional property in the form of appellee Sidney Howard's Veterans' Administration (V.A.) disability back pay. At the time the parties divorced, appellant had worked for Tyson for approximately twenty years, and she was the primary provider during the marriage. Appellee had health problems, and he received both social security and V.A. benefits. This appeal involves appellant's request to reopen the divorce case in order to divide appellee's back pay, which he had applied for before the divorce but received after the divorce decree was entered. We affirm.
Appellant and appellee lived together from 1992 until their separation in January 2006. They married in September 1999. Appellee filed for divorce on January 10, 2006. The parties' divorce decree was entered on November 19, 2007. The circuit court divided the parties' property and debt; it denied appellee's request for spousal support.
On December 18, 2007, appellant filed a "Motion to Reopen Divorce, Divide Additional Marital Property, and For Other Relief." The motion alleged that appellee had received an award of Social Security back pay, which was divisible as marital property pursuant to Ark. Code Ann. section 9-12-315 (Repl. 2008) and not subject to the exception found in section 9-12-315(B)(6). She contended that, while the divorce decree purported to include a division of all marital assets, the award of back pay that appellee had received after its entry was marital property. Appellant sought to reopen the divorce case pursuant to Rule 60(a), which allows a court to modify or vacate a decree within ninety days of its filing with the clerk to correct errors or to prevent the miscarriage of justice. Appellant also requested that appellee be ordered to pay all sums he was ordered to pay upon the marital debts from the back pay award.
Appellant's motion refers only to "Social Security back pay"; the proffered evidence indicates that appellee received V.A. disability back pay. Appellee points out in his brief that 42 U.S.C. § 407(a) excludes any benefits derived from the Social Security Administration from any state definition of marital property. Federal law likely prevents the division of appellee's V.A. disability benefits. See Mansell v. Mansell, 490 U.S. 581 (1989) (holding that military retirement pay waived in order to receive veterans' disability benefits was not community property divisible upon divorce). However, we note that federal preemption does not resolve the issues before us because the trial court, if it had found the back pay award to be newly discovered evidence, could have reopened the case to divide marital property and decide issues of spousal support.
On June 9, 2008, the circuit court held a hearing on appellant's motion. The trial court denied the motion to reopen the case, reasoning: (1) his failure to rule on the motion within thirty days meant that it was deemed denied; (2) because the benefits had been applied for before the divorce was granted, there were no grounds to reopen the case. Appellant proffered the testimony of appellee, who testified that he received notification in October 2007 that he had been awarded disability back pay from the V.A. in the amount of $62,000. The benefits were based on his service in Vietnam in 1967; his disability was diagnosed as post-traumatic stress syndrome. Appellee testified that he was uncertain whether his application for retroactive V.A. benefits "ever came up or not in [his] prior testimony, but it was sure on the paperwork." He further testified that appellant and "everybody" knew that he had applied for the back pay.
On appeal, appellant argues that the case should be reopened under Rule 60(c)(1) because appellee's receipt of the back pay could not have been discovered in time to file a motion under Rule 59(b). Rule 60 of the Arkansas Rules of Civil Procedure provides:
(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(1) By granting a new trial where the grounds therefor were discovered after the expiration of ninety (90) days after the filing of the judgment, or, where the ground is newly discovered evidence which the moving party could not have discovered in time to file a motion under Rule 59(b), upon a motion for new trial filed with the clerk of the court not later than one year after discovery of the grounds or one year after the judgment was filed with the clerk of the court, whichever is the earlier; provided, notice of said motion has been served within the time limitations for filing the motion.
It is settled law that a new trial based on newly discovered evidence is not a favored remedy, and whether to grant a motion for new trial on such grounds is within the sound discretion of the trial judge. Sims v. First State Bank of Plainview, 73 Ark. App. 325, 331, 43 S.W.3d 175, 179-80 (2001) (citing Lee v. Lee, 330 Ark. 310, 954 S.W.2d 231 (1997)). In a hearing on a motion for new trial based on newly discovered evidence, the burden is on the movant to establish that he could not with reasonable diligence have discovered and produced the evidence at the time of trial. Id.
The trial court found that the benefits at issue had been applied for before the divorce was granted and there was notice to appellant that appellee had filed for these benefits. The judge said, "I think discovering an asset after divorce is over, if it could have been discovered and litigated during the divorce, is not grounds to reopen it." This is not simply a matter of reopening the case to divide the back pay, as appellant contends; nor are we convinced that the back pay award itself is divisible as marital property. As the trial court pointed out, it would be necessary to retry the whole case because the court would need to equitably divide all marital property in light of this new evidence.
Appellant challenges the trial court's finding that "there was notice out there to [appellant] that [appellee] had filed for these benefits, and it's possible at some future time he could get them," and appellant contends that it is not supported by the record. However, the court's findings were not clearly erroneous. We have reviewed the record under the proper standards, and we find no abuse of the circuit court's discretion.
Accordingly, we affirm.
Affirmed.
HENRY and BAKER, JJ., agree.