dissenting. With today’s decision every judgment, order, and decree entered before the year 2000 is subject to attack on the basis of intrinsic fraud. As a result, the finality of all judgments, orders, and decrees can be called into question. I cannot subscribe to such a sweeping and absurd interpretation of our 2000 amendment to Rule 60(c)(4) of our Rules of Civil Procedure. No other state has allowed retrospective attacks on judgments, orders, and decrees based on a rule change permitting challenges for intrinsic fraud. For that reason, I would interpret Rule 60(c)(4) reasonably to apply only prospectively, which would avoid the sea change that today’s decision will foment.
Before January 27, 2000, judgments and decrees could be set aside under Rule 60(c)(4) of our Civil Procedure Rules only for extrinsic fraud which is fraud practiced upon the court. There was no time limit specified for raising issues of extrinsic fraud, which meant they could be raised at any time. However, intrinsic fraud allegations such as perjury allegations had to be raised within ninety days of judgment under Rule 60(b).
On January 27, 2000, this court changed Rule 60(c)(4) to allow assertions of intrinsic fraud for purposes of setting aside a judgment to be raised. We said in our 2000 per curiam amending Rule 60(c) (4) that the language including intrinsic fraud is taken in part from Rule 60(b)(3) of the Federal Rules of Civil Procedure. See In Re: Arkansas Rules of Civil Procedure, 340 Ark. Appx. 731 (2000). The federal rule, however, unlike our rule, limits assertions of intrinsic and extrinsic fraud to one year after entry of judgment. Neither the federal rule, which was adopted in 1946, nor the recommendation from our Civil Practice Committee, nor the per curiam adopting our rule change on January 27, 2000, in any way indicate that the new rule is procedural or remedial or that it should be applied to judgments and orders entered prior to January 27, 2000. Generally, when we consider a law remedial for purposes of giving it a retrospective effect, we look to the intent of the legislature. See, e.g., Bruner v. Tadlock, 338 Ark. 34, 991 S.W.2d 600 (1999). No such intent was expressed in our adopting per curiam.
The finality of judgments upon which the parties can rely is fundamental to our system of jurisprudence. Virtually every state espouses a strong public policy in favor of the finality of judgments. See, e.g., Panzino v. City of Phoenix, 196 Ariz. 442, 999 P.2d 198 (2000); People ex rel. J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002); Shimabuku v. Montgomery Elevator Co., 79 Haw. 352, 903 P.2d 48 (1995); In re: Marriage of Kates, 198 Ill. 2d 156, 761 N.E.2d 153 (2001); Wal-Mart Super Center v. Long, 852 So. 2d 568 (Miss. 2003); Nussbaumer v. Fetrow, 556 N.W.2d 595 (Minn. Ct. App. 1996); Joy v. Joy, 105 N.M. 571, 734 P.2d 811 (Ct. App. 1987); Pearn v. DaimlerChrysler Corp., 148 Ohio App. 3d 228, 772 N.E.2d 712 (2002); Bowman v. Bowman, 357 S.C. 146, 591 S.E.2d 654 (Ct. App. 2004); Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979). Arkansas, of course, is no exception and is in complete agreement with this policy. See, e.g., Reporter’s Notes to Rule 60, Ark. R. Civ. P. 60. See also Lord v. Mazzanti, 335 Ark. 25, 2 S.W.3d 76 (1999).
What this court is doing today is interpreting its rules so as to allow the reopening of a matter that has already been time-barred. Yet, this court has been resolute in preventing the General Assembly from doing exactly that by applying its legislation retrospectively. See, e.g., Hall v. Summit Contractors, Inc., 356 Ark. 609, 158 S.W.3d 185 (2004) (General Assembly’s repeal of the Limitations Act could not revive a claim that was already time-barred); Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992) (supreme court could not consider application of 1991 amendment to statute which enlarged statute of limitations in action for enforcement of child support or for judgment of arrearages in the instant case because application would revive a cause of action previously barred); Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992) (statute enlarging statute of limitations for enforcement of child-support obligations could not be applied retroactively to revive claims already barred). Why should this court do precisely what it has proscribed the General Assembly from doing?
Moreover, there is no question that Dickson has a vested right in the property matters that have been settled. When a case is reopened after ten years because of a later rule change, the vested right of the parties to rely on the finality of the decision is savaged beyond repair. For this court to undo that principle renders the entire common law of this state uncertain, as every judgment, order, or decree can now be called into question. That flies in the face of common sense.
The majority equates setting aside a judgment under Rule 60 for intrinsic fraud to a recent rule change to Rule 55(f), which prevents a default judgment following remand from federal court, when an answer had been filed in federal court. That comparison by the majority goes far beyond comparing apples to oranges, but is more like comparing apples to trucks. Our decision relating to the retroactivity of Rule 55(f) in JurisdictionUSA, Inc. v. Loislaw.com, Inc., 357 Ark. 403, 183 S.W.3d 560 (2004), has nothing to do with setting aside judgments under Rule 60(c)(4). The distinctions between Rule 55(f) and Rule 60(c)(4) are obvious:
• This court had previously held that Rule 55 was a procedural rule, remedial in nature, and could be given retroactive effect. See Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1995). There has never been a decision by this court or a per curiam order holding that Rule 60 is a procedural rule or remedial in nature so that any changes to the rule allowing for the reopening of time-barred cases could be applied retroactively.
• Rule 60(c) by its terms specifically does not apply to default judgments. See also Epting v. Precision Paint & Glass, Inc., 353 Ark. 84, 110 S.W.3d 747 (2003).
• Rule 55(c) and 55(f) clearly set out the procedural steps for setting aside default judgments by the party against whom a default judgment is entered and, thus, are easily categorized as procedural.
• The party moving for default judgment under Rule 55(b) knows that the judgment may be set aside upon motion by the opposing party under Rule 55(c). Thus, there is no expectation of finality for the default judgment until the motion to set aside is decided. Indeed, the trial court may conduct a hearing or convene a jury for purposes of damages or for some other remedy. See, e.g., Polselli v. Aulgur, 328 Ark. 111, 942 S.W.2d 832 (1997).
• The parties in the instant case in 1995, when the divorce decree was entered, did have the expectation of finality with respect to an allegation of intrinsic fraud because it was not raised within ninety days as required at that time under Rule 60(b).
In 1969, a former Justice of this court, George Rose Smith, with tongue planted firmly in cheek, wrote an opinion abolishing all statutory law based on a General Repealer Clause enacted by the General Assembly. See Poisson v. d’Avril (reprinted in 22 Ark. L. Rev. 741 (1969)). The opinion was a joke. Here, this decision placing all judgments, orders, and decrees under a Rule 60 cloud is no joke, but the consequences are just as far-reaching.
I predict that today’s decision will necessitate an almost immediate rule change by this court to prevent the retrospective application of Rule 60(c)(4), and the unravelling of previous judgments and decrees. That in itself will be recognition of the fact that today’s decision hits far wide of the mark. But even when the rule change does occur, and I am certain that it will, this will not minimize the fact that today this court has given an unreasonable and illogical interpretation to Rule 60(c)(4) to benefit a single party in the instant case. To be sure, the failure to disclose assets in a divorce case is a very serious matter, but the time to resolve that issue was before the case had ended and before the ninety-day time frame for attacking such judgments under Rule 60 had expired. By reopening this matter a decade after this case had been laid to rest, this court attempts to correct an alleged wrong. What it does, however, is sacrifice the time-honored principle in favor of stability of our common law and the finality of judgments on the altar of equity. This I cannot do.
For all of these reasons, I would reverse the trial court. I respectfully dissent.
Hannah, C.J., and Corbin, J., join in this dissent.