Luckes v. Luckes, 77-170

• Decision Date: 13 February 1978
• Docket Number: No. 77-170,No. 1,77-170,1
• Citation: 262 Ark. 770,561 S.W.2d 300
• Parties: Clinton E. LUCKES, Appellant, v. Genevieve N. LUCKES, Appellee
• Court: Arkansas Supreme Court

Page 300

561 S.W.2d 300

262 Ark. 770

Clinton E. LUCKES, Appellant, v. Genevieve N. LUCKES, Appellee.

No. 77-170.

Supreme Court of Arkansas, Division No. 1.

Feb. 13, 1978.

Franklin Wilder, Fort Smith, for appellant.

Robert S. Blatt, Fort Smith, for appellee.

GEORGE ROSE SMITH, Justice.

This post-divorce proceeding concerns alimony that is due or is to become due.

The divorce decree, entered in 1969, directed the appellant husband to pay permanent alimony of $150 a month. Later the appellant moved to California and fell behind in his payments. The appellee then invoked the Uniform Reciprocal Enforcement of Support Act and obtained an order in California directing her former husband to pay $65 a month into the registry of the California court, which forwarded those payments to the clerk of the Sebastian chancery court, in Arkansas.

In June of 1976 the appellee filed a petition in Arkansas asking that her former husband be held in contempt of court and that the arrearages be reduced to judgment. Notice of the petition was served by certified mail, but the appellant did not respond or appear. On July 6 the court entered a decree for arrearages of $1428 and directed that execution and garnishment be issued.

On July 30 the appellee filed a motion for a nunc pro tunc order correcting the July 6 decree. It was asserted that by a clerical error the arrearage had been found to be $1,428 when in fact it was $5,782.91. No notice of that motion was served on the appellant. On August 3 the motion was presented to the chancellor, who found that a clerical error had in fact occurred and entered a nunc pro tunc order, as requested, fixing the arrearage at $5,782.91. Writs of garnishment were issued against the appellants's retirement pay, he being a retired army officer. The appellant then employed counsel in Arkansas and sought relief on three grounds, which we discuss separately.

First, it is argued that the nunc pro tunc order of August 3 should be set aside as having been entered without notice. The trouble with that argument is that no prejudice is shown, because the order was correct. Nothing would be gained by setting aside the order and immediately re-entering it.

A true clerical error is shown. Such an error is essentially one that arises not from an exercise of the court's judicial discretion but from a mistake on the part of its officers (or perhaps someone else). Williams, Standridge & Deaton v. State, 229 Ark. 42, 313 S.W.2d 242 (1958). What happened here was this: The court clerk keeps a record of alimony payments that are made through his office. When the clerk was asked for a statement of the appellant's arrearages, a mistake was made in adding the figures on an adding machine. That led to the incorrect figure of $1,428. No exercise of judicial discretion was involved; the chancellor simply accepted the figure as correct. The...