ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

SANDRA R. FRIGON

APPELLANT

V.

GARY F. FRIGON

APPELLEE

CA 02-1374

DECEMBER 10, 2003

APPEAL FROM THE BENTON

COUNTY CIRCUIT COURT

[NO. DR 2001-116-4]

HONORABLE XOLLIE MARIE

BUFFER DUNCAN, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Sandra Frigon appeals the July 18, 2002, order of the Benton County Circuit Court that changed the alimony and child support obligations of her ex-husband, appellee Gary Frigon. The parties divorced on September 18, 2001.1 In the divorce, Sandra was granted custody of the parties' only daughter; Gary was granted visitation and was ordered to pay each month $511 in child support and $350 in alimony. On December 13, 2001, the parties entered into an agreed order, approved by the court and filed of record, that settled various property and debt issues. On February 20, 2002, Sandra petitioned the circuit court for an increase in child support and alimony based upon Gary's substantial increase in income. The increase was the result of Gary filing a successful claim of disability, causing him to receive $12,260 per month

in disability benefits effective November 2001. In Sandra's petition, she alleged that pursuant to the December order, Gary agreed to sign a release form allowing her to discover information about his disability insurance policy, but that he failed to execute a release until January 29, 2001, preventing her from discovering the approval of his claim more promptly in order to seek an increase in support and alimony. Therefore, Sandra asked for an increase in child support and alimony dating back to the first month that disability income was received. Appellee responded with a general denial.

The petition was heard before the trial judge on April 16, 2002. It was undisputed that on December 12, 2001, Sandra's attorney delivered to Gary's attorney a general release for Gary to sign, asking the attorney to have his client fill it out and return it as soon as possible. Gary believed the release was overly broad, so his attorney drafted a more narrow release to protect Gary's confidential health information, which Gary signed on January 23, 2002.

The testimony revealed that Gary closed his internal medicine practice in August 2001 and thereafter applied for disability benefits. Gary was paid $12,260 in monthly disability benefits from and after November 2001, receiving his first payment in late January 2002. The January check was a lump sum for the months of November, December and January. Gary notified Sandra about his receipt of disability payments sometime in February 2002. Testimony was taken from Gary about his monthly income, the sale of his medical practice, the state of the parties' marital debts, the amount of Gary's child support obligation to another child, and the amount of monthly health insurance premiums paid for the benefit of the parties' child.

At the conclusion, the trial judge announced her findings that Gary's monthly gross earnings had increased to $12,260, and that child support would be raised to $1,776.75 per month beginning January 2002, reduced by the amounts paid already under the prior order of support. The trial judge also increased alimony to $997.94 per month beginning January 2002,reduced by the amounts already paid under the prior order. Gary was ordered to pay $1500 in attorney fees. Sandra's attorney was directed to prepare the precedent.

On May 3, 2002, prior to the order being signed and filed of record and after reviewing Sandra's proposed order, Gary's counsel sent a letter to the judge asking that the judge reconsider her decision. Gary asserted that any change in child support should not be effective until after the date of the petition on February 20, 2002, because retroactive application was unlawful. Gary also pointed out that the trial judge neglected to deduct from his monthly income the medical insurance premiums paid for his daughter, so he suggested a corrected income and commensurate child support obligation. Gary also argued that Sandra failed to prove the need for additional alimony or entitlement to fees. This letter was copied to Sandra's attorney, but her attorney did not respond.

The trial judge prepared and signed the order consistent with Gary's request for reconsideration, except as to his contention that there should be no increase in alimony or order to pay attorney fees, and filed it of record on July 18, 2002. The order set prospective increased child support beginning on February 20, 2002, at $1,606.95 per month. The order set prospective increased alimony beginning on February 20, 2002, at $997.94 per month.

Subsequently, Sandra petitioned the trial judge to amend her order to conform to the oral rendition of findings or, alternatively, to grant a new trial. Sandra asserted that Gary's actions prevented her from petitioning the court sooner for increases, and she also stated that Gary should only be credited for one-half of the monthly insurance premiums because it was for two dependent children. Gary filed a general denial to the relief requested by Sandra. The trial court did not act on Sandra's motion; it was denied by operation of law. Sandra filed a timely notice of appeal.

On appeal, Sandra argues that "the trial court erred when the court modified its ruling from the bench after appellee filed a letter motion for reconsideration and asked the court to modify its ruling before the order was entered." Sandra bases her argument on the assertion that when the judge stated from the bench that the changes would go into effect in January and set the amounts of monthly alimony and support, she could not and should not have altered that oral ruling in the order that was filed of record.

To the extent that Sandra argues that the trial judge could not change her oral findings in the written order that was filed of record, she is mistaken. Arkansas Rule of Civil Procedure 58 provides that the moment at which the trial court's order or judgment becomes effective is when the written precedent is filed. Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000). This rule eliminates or reduces disputes between litigants over what a trial court's oral decision in open court entailed. See id. The order became effective when filed of record; the oral rendition of findings were not effective until the judge signed an order and filed it. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003)(supreme court rejected Bradford's argument that the trial court lacked authority to modify his sentences from concurrent, pronounced in open court, to consecutive in the judgment; Rule 58 provides effective date of an order, and trial court was within its authority to modify the sentence pronounced in open court prior to entry of judgment). The only effective order was the one filed of record.

To the extent that Sandra argues that the decision not to award support and alimony dating back to the effective month of disability payments (November 2001) is clearly erroneous, we disagree. In reviewing equity cases, this court considers the evidence de novo, but will not reverse a trial judge's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Tucker v. Tucker, 74 Ark. App. 316, 49 S.W.3d 145 (2001). According to Arkansas Code Annotated section 9-14-234 (Repl. 1998), child-support orders cannot be retroactively modified for the time period before the filing of the petition for modification, and it is an abuse of the trial court's discretion to do so. Yell v. Yell, 56 Ark. App. 176, 939 S.W.2d 860 (1997). The only exception to this rule is where there has been fraud in procuring the existing support decree, or other grounds set forth in Ark. R. Civ. P. 60(c). Id.; see also Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002). We believe that the circuit court acted within its authority in preparing an order that increased child support from the month of the petition forward. The discretion vested in the circuit court of whether, how much, and when, to increase alimony was not abused. We cannot say that the circuit clearly erred by ordering the increases to go into effect as reflected in the order.

As a related matter, Sandra alleged a breach of agreement that she asserts caused unnecessary delay of her seeking an increase in support and alimony. Sandra now asserts that she was harmed by Gary's failure to sign the information release she provided him on December 12, 2001. We disagree with her argument.

We do not see any evidence upon which to base a breach-of-agreement claim as there was no evidence of breach. The agreed order, filed of record on December 13, 2001, provided that Gary "shall execute a written release to plaintiff for purposes of obtaining information concerning his disability insurance policy[.]" The agreed order did not provide a date certain upon which to execute the release. Gary executed a release in compliance with this order on January 23, 2002. Thus, Gary fulfilled his obligation under the December order. Sandra was then able to access the information she desired and proceed according to that information.

We acknowledge that Sandra requested a hearing on her motion to amend the judgment or for a new trial but, pursuant to Rule 59, there is no requirement that a hearing be conducted. In fact, the Rule contemplates that if no action is taken on the motion by the trial court, it is deemed denied by operation of law on the thirtieth day after it is filed. Ark. R. Civ. P. 59 (b).

For the foregoing reasons, we affirm.

Pittman and Roaf, JJ., agree.

1 Sandra appealed the divorce decree in Frigon v. Frigon, 81 Ark. App. 314, 101 S.W.3d 879 (2003), concerning the trial court's finding that, at the time of the divorce, a disability policy covering Gary was not divisible martial property. We ultimately agreed with Sandra that the policy was marital property that the judge erroneously failed to divide. We reversed and remanded, handing the opinion down long after the order currently on appeal was entered.