State Office of Child Support Enforcement v. Offutt

Andree Layton Roaf, Judge, dissenting. I would affirm the chancellor because I believe the facts of this case are suggestive of constructive fraud as defined by this court in First Nat’l Bank v. Higginbotham, 36 Ark. App. 65 , 818 S.W.2d 583 (1991), and our supreme court in Davis v. Davis, 291 Ark. 473 , 725 S.W.2d 845 (1987). In this case, it is undisputed that the trial court took the matter of the arrearage award under advisement after a hearing and did not issue a ruling. After several months had passed, the attorney for OCSE prepared a precedent that awarded OCSE $100 per month for five years and sent it to the judge and to Offutt’s attorney with a pro forma cover letter advising the attorney to notify the judge if she had any objections. The order was signed by the judge about three weeks later, after Offutt’s attorney had objected to the order by telephone, but failed to promptly file a motion to set aside the order.

Although Offutt’s motion relied solely upon Ark. R. Civ. P. 60(b) and 52(b), the hearing on the motion was held within 90 days of the entry of the original judgment. Unfortunately, the amended judgment was entered after the ninety days had elapsed. However, I believe we can affirm because of the allegations of deceptive conduct set forth in Offutt’s motion and because of OCSE’s response, acknowledging that it, and not the court, determined the amount of the arrearage awarded in the initial judgment. Even though Offutt could have been more diligent in insuring that the modified judgment was entered within 90 days, the trial court is not precluded from modifying the award pursuant to Ark. R. Civ. P. 60(c)(4) if OCSE employed fraud in procuring the original judgment. Submitting a precedent for a money judgment never ordered by the trial court, in my opinion, constitutes constructive fraud under the holdings of Higginbotham, supra and Davis, supra. In addition, the form cover letter failed to advise the trial court of the true origin of the order submitted, but rather put the burden upon Offutt’s attorney to “object.” As this court stated in Higginbotham:

Constructive fraud is defined as the breach of a legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others. Neither actual dishonesty nor intent to deceive is an essential element.

(Citations omitted.)

The judgment and the form cover letter submitted to the trial court in a case heard over six months earlier undoubtedly had the “tendency to deceive.” And, OCSE had a number of less deceptive alternatives that it, as the moving party, could have taken to prompt the trial court into taking action, including mandamus. OCSE could also have submitted a precedent with blanks to be filled in by the trial court for the amount and duration of the arrears to be awarded. It could have submitted a cover letter that more accurately advised the trial court of the status of the case, and that it had taken the liberty of calculating what it deemed to be an appropriate arrearage award, subject to the trial court’s approval. However, the course of action it undertook was, either by design or by lack of candor, likely to mislead the trial court. Notwithstanding its attempt to shift the onus of correcting any misunderstanding onto the nonmoving party, it is the conduct of OCSE, not Offutt, which mandates affirmance of this case.

Finally, we conduct a de novo review of appeals from chancery court, and it is well settled that we will affirm a chancellor’s decision if it is correct for any reason. Roberts v. Feltman, 55 Ark. App. 142 , 932 S.W.2d 781 (1996); Pryor v. Raper, 46 Ark. App. 150 , 877 S.W.2d 952 (1994). Here, there is ample evidence in the record to support a finding of constructive fraud, and I cannot say that the trial court was clearly erroneous in setting aside the judgment under these circumstances.

Crabtree, J., joins.