Scott Bockholt v. State of Arkansas, Office of Child Support Enforcement Ex Rel. Addie Celesta Bockholt , 2023 Ark. App. 243 ( 2023 )

Cite as 2023 Ark. App. 243ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-22-332
SCOTT BOCKHOLT
APPELLANT Opinion Delivered April 26, 2023
V. APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
[NO. 04DR-10-851]
STATE OF ARKANSAS, OFFICE OF
CHILD SUPPORT ENFORCEMENT EX HONORABLE XOLLIE DUNCAN,
REL. ADDIE CELESTA BOCKHOLT JUDGE
APPELLEE
APPEAL DISMISSED
KENNETH S. HIXSON, Judge
This is a child-support modification case. Appellant Scott Bockholt appeals from a
March 1, 2022 order wherein the trial court denied Scott’s motion to vacate an agreed order
modifying child support that had been entered on September 23, 2021. Scott also appeals
from a March 3, 2022 order wherein the trial court amended its prior findings in the
September 23, 2021 order with respect to back child support and costs and fees. On appeal,
Scott argues that the trial court erred in finding that the parties had reached an agreement
as to his income, the amount of child support, and the modification date as reflected in the
September 23, 2021 agreed order. Scott further argues that his counsel lacked the authority
to bind him to an agreement during the settlement negotiations. We dismiss the appeal
because the trial court lacked jurisdiction to enter the March 1 and 3, 2022 orders. Pursuant
to our dismissal, the March 1 and 3, 2022 orders are vacated, and the September 23, 2021
order is reinstated.
Addie Celeste Bockholt was awarded primary custody of Scott and Addie’s three
children, and Scott was ordered to pay weekly child support of $97. Appellee Arkansas
Office of Child Support Enforcement (“OCSE”)1 subsequently filed a petition to modify
Scott’s child-support obligation based on an increase in his income. A hearing on the matter
was set for September 7, 2021. However, no hearing was held on that date, and the parties
instead engaged in several hours of settlement negotiations. Based on these negotiations,
OCSE’s counsel believed that a settlement had been reached, and he drafted an agreed order
later that day.
On the late afternoon of September 7, 2021, OCSE’s counsel sent Scott’s counsel an
email with the agreed order attached. The email stated, “Well here it is. Let me know.”
When OCSE received no response, another email was sent to Scott’s counsel on September
13 with the agreed order attached. That email stated, “Do we have any progress on getting
this Order back?” Finally, on September 23, OCSE’s counsel sent an email to the trial court—
on which Scott’s counsel was copied—that stated:
Attached is an order for the above case. This matter was set on September 7th. The
matter was settled. I forwarded the order to [Scott’s counsel] on September 7th for
his review and his client’s review. I have not heard back from [Scott’s counsel] as of
this date. I am requesting the order be entered at this time.
1
Addie assigned her child-support rights to OCSE.
2
Based on the agreed order submitted by OCSE’s counsel, the trial court entered an
agreed order modifying child support on September 23, 2021. In that order, the trial court
found that Scott had personally appeared at the scheduled hearing with his counsel and that,
prior to convening a hearing, the parties settled the matter. Pursuant to the agreement of
the parties, the trial court found that Scott’s income was $9697 a month and that Addie’s
income was $6814 a per month. The trial court then went through all the calculations that
had been provided by OCSE’s counsel on the child-support worksheets and made these
findings regarding child support. The trial court ordered the modification effective
beginning on May 27, 2019, and ordered Scott to pay $1546 in monthly child support from
that date until August 27, 2019, after which one of the three children had reached the age
of majority. The trial court ordered that, beginning on September 27, 2019, Scott’s child-
support obligation was $1308 a month. The order provided, “To the extent the modification
creates a back-support obligation, [Scott] is ordered to pay an additional sum of $300 per
month to the back-support amount beginning September 27, 2021, and on the twenty-
seventh day of each month thereafter until that support is paid in full.” The trial court also
ordered Scott to pay $552.50 in costs and fees.
On October 21, 2021, Scott filed a motion to vacate the September 23, 2021 order
and for a new trial. In his motion and accompanying brief, Scott acknowledged that after
the settlement negotiations on September 7, 2021, the parties notified the trial court that a
settlement had been reached, or was very close to being reached, and that the trial could be
taken off the docket. Scott, however, asserted that no agreement had been signed, that he
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never approved the proposed agreed order, and that there was no mutual agreement or
meeting of the minds as to the amount of child support or other material terms of the alleged
agreement. Scott premised his motion on Rules 59 2 and 60 of the Arkansas Rules of Civil
Procedure. Scott argued that the September 23, 2021 order should be vacated under Rule
60(a), which provides, “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.”
On February 22, 2022, the trial court held a hearing on Scott’s motion. Several
witnesses testified. Scott’s trial counsel, Billy Bob Webb,3 testified that during his settlement
negotiations with OCSE’s counsel on September 7, 2021, they performed calculations on
various worksheets and eventually reached an agreement on the calculations for Scott’s
income and the child support. However, he stated that although Scott “begrudgingly” agreed
to the final numbers, Scott told attorney Webb that he wanted to see the order and for his
counsel not to agree to it until he saw it. In Scott’s testimony, he stated that he never saw
the proposed agreed order until it was entered and that there was never any agreement
2
To the extent Scott’s motion relied on Rule 59, it was untimely. Rule 59, which
governs motions for new trial, provides in subsection (b) that the motion shall be filed not
later than ten days after the entry of judgment, and Scott’s motion was filed twenty-eight days
after the trial court entered the agreed order.
3
Scott’s trial counsel was replaced by another attorney prior to the filing of Scott’s
motion to vacate and for new trial.
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reached. Patrick Lewis, a third-party attorney representing Scott’s employer, attended the
September 7 settlement negotiations and testified that, although there was not a signed
agreement when the parties left the courthouse that day, and nothing was read into the
record, there was a verbal agreement that the case had been resolved. Attorney Lewis stated
that “everybody shook hands” and that there was no doubt in his mind that a settlement had
been reached. Finally, OCSE presented the testimony of its administrative assistant, Kellye
Key, who was present during the settlement negotiations and took notes. Key testified that
in her notes, she documented the parties’ final agreement as to Scott’s income, the amount
of child support to be paid, and the start date of May 27, 2019 for the modification to take
effect. Key testified that attorney Webb took these figures to Scott, and when he returned,
he stated that they had a settlement. Key testified that there was no doubt in her mind that
the case had settled and that she assisted counsel for OSCE in preparing the agreed order
that was later entered by the trial court. However, all the witnesses at the hearing agreed that
the parties never reached any agreement regarding how back child support would be paid or
the specific amount of costs and fees Scott would pay.
On March 1, 2022, the trial court entered an order denying Scott’s motion to vacate
the September 23, 2021 agreed order. The trial court found that the testimony presented at
the hearing established that the parties had entered into a binding agreement as to Scott’s
income, the amount of child support, and the date on which the modification was effective.
However, the trial court also found that the parties did not specifically agree on the method
for paying the back child support or costs and fees that Scott would pay. The trial court
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therefore set aside only the provisions of the September 23, 2021 agreed order pertaining to
those issues, and it scheduled a hearing on those issues. After taking testimony at the ensuing
hearing relative to these issues, the trial court entered another order on March 3, 2022. In
its March 3 order, the trial court found that the total amount of back child support Scott
was obligated to pay as a result of the modification’s effective date was $30,962 and that, in
addition to his regular monthly child-support obligation, Scott was ordered to pay an
additional $192 in monthly back child support until the back child support was paid. In the
March 3 order, the trial court also ordered Scott to pay $719.25 in costs and fees.
On appeal from the March 1 and March 3, 2022 orders, Scott argues that the trial
court erred in not vacating the September 23, 2021 agreed order in its entirety because the
parties never reached an agreement as to his income, the amount of child support, and the
modification date that are reflected in the September 23, 2021 agreed order. Scott further
argues that his counsel lacked the authority to bind him to an agreement during the
settlement negotiations. However, we are unable to reach the merits of Scott’s argument
because we conclude that the trial court lacked jurisdiction to enter the March 1 and March
3, 2022 orders more than ninety days after the September 23, 2021 agreed order had been
entered.
Scott filed his motion to vacate the September 23, 2021 agreed order and for new
trial on October 21, 2021, which was twenty-eight days after the agreed order was filed. In
his motion, Scott attempted to invoke Arkansas Rule of Civil Procedure 59, but that was
ineffective because under Rule 59(b), such a motion must be filed no later than ten days after
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entry of the order being challenged. The only other rule relied on by Scott in his motion
was Rule 60(a), which provides that a court may modify or vacate a judgment within ninety
days of its having been filed with the clerk to correct errors or mistakes or to prevent a
miscarriage of justice. However, although Scott filed his motion to vacate within ninety days
of the September 23, 2021 order, the trial court did not enter the order denying Scott’s
motion until March 1, 2022, which was well beyond the ninety-day limit.
A trial court may modify or set aside its order beyond the ninety-day limitation
contained in Rule 60(a) if the specifically enumerated conditions listed in Rule 60(c) exist.
Browning v. Browning, 2011 Ark. App. 714. After ninety days, without the showing of one of
the exceptions listed in Rule 60(c), a court has no power to modify or set aside an order. Id.Although the court has continuing jurisdiction to modify child support and custody orders,
the moving party must demonstrate a change in circumstances requiring modification. Id.Here, Scott did not plead a ground that would have allowed the trial court to modify
or vacate the September 23, 2021 order after ninety days had elapsed. Because both the
March 1 and 3, 2022 orders were entered outside of the ninety-day limitation period, the
trial court lacked jurisdiction to enter either of these orders. See id.; see also Phillips v. DeLage
Landen Fin. Servs., 2019 Ark. App. 44, 571 S.W.3d 512 (holding that even though appellant
filed his Rule 60(a) motion within ninety days, the trial court lacked authority to act on the
motion beyond the ninety-day limitation). Additionally, the trial court’s continuing
jurisdiction over child-support cases was not invoked, nor does Scott claim that it was. In
Scott’s October 21, 2021 motion, he contended that the September 23 order should be
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vacated to correct errors or mistakes and to prevent the miscarriage of justice; he did not
state that circumstances had changed such that modification was required.
We hold that because the trial court was without jurisdiction to modify or vacate the
September 23, 2021 order outside of ninety days, the trial court’s March 1 and 3, 2022 orders
are void. Therefore, we vacate the March 1 and 3, 2022 orders; we reinstate the September
23, 2021 order; and we dismiss this appeal.
Appeal dismissed.
VIRDEN and THYER, JJ., agree.
Kevin L. Hickey, for appellant.
Gil Dudley, Arkansas Department of Finance & Administration, Office of Child
Support Enforcement, for appellee.
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