2020 UT App 14
THE UTAH COURT OF APPEALS
REGGIE ANN PECK,
Appellee,
v.
KEVIN SCOTT PECK,
Appellant.
Opinion
No. 20180732-CA
Filed January 24, 2020
First District Court, Logan Department
The Honorable Thomas Willmore
No. 094100623
David Pedrazas, Attorney for Appellant
Marlin J. Grant, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE GREGORY K. ORME concurred. JUDGE JILL M.
POHLMAN dissented, with opinion.
CHRISTIANSEN FORSTER, Judge:
¶1 Kevin Scott Peck appeals the district court’s denial of
several motions aimed at correcting an alleged clerical error in a
qualified domestic relations order (QDRO) entered by the court.
We affirm the district court’s determination that the QDRO
reflected the parties’ intent but reverse the court’s dismissal of
Kevin’s 1 rule 60(b) motion on timeliness grounds and remand
for further proceedings.
1. “As is our practice in cases where both parties share a last
name, we refer to the parties by their first name with no
(continued…)
Peck v. Peck
BACKGROUND
¶2 Kevin married Reggie Ann Peck on June 15, 2001, and the
parties divorced on July 15, 2003. Their decree of divorce
awarded Kevin all interest in his retirement pension.
¶3 After a short separation, the parties began cohabiting
and then remarried on October 22, 2004. The parties divorced
a second time on November 19, 2010. The parties’ second decree
of divorce, which was based on the parties’ stipulation,
referenced the prior marriage, stating that the parties “had
previously been married to each other on June 15, 2001, then
divorced.” With respect to retirement, the second decree
provided, “Retirement will be divided according to the formula
set forth in the case of Woodward v. Woodward.” It also provided
that the division would be accomplished by the entry of a
QDRO.
¶4 In early 2016, Reggie submitted a QDRO for approval,
which stated, “The Member and the Alternate Payee were
married on June 15, 2001. The Member and the Alternate Payee
were divorced on November 19, 2010.” The QDRO further stated
that “[t]he Alternate Payee is awarded 50% of the Member’s
benefits accrued during the marriage.” Kevin did not object to
the QDRO, and the court signed it on May 12, 2016. 2
(…continued)
disrespect intended by the apparent informality.” Smith v. Smith,
2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
2. Actually, three versions of the QDRO were submitted to the
court and signed—one on February 4, 2016, one on March 18,
2016, and one on May 12, 2016. All three versions contained the
June 15, 2001 marriage date and purported to divide Kevin’s
(continued…)
20180732-CA 2 2020 UT App 14
Peck v. Peck
¶5 On October 24, 2017, seventeen months after the final
QDRO was signed, Kevin filed a motion for a nunc pro tunc
order to correct the date of the parties’ marriage in the QDRO
from June 15, 2001, to October 22, 2004, asserting that the second
decree divided only retirement accrued during the second
marriage. Reggie objected, asserting that the date used in the
QDRO reflected the parties’ intent to “use[] the [first] marriage
to equitably divide the retirement” “[b]ecause there was not that
much of a gap between the [first] marriage and the second
remarriage.”
¶6 The court held a hearing on the matter on January 18,
2018. At the hearing, Reggie submitted a letter sent to her
counsel from prior counsel that included a QDRO drafted in
2010 that had been approved as to form by Kevin’s prior
attorney. Like the QDRO ultimately filed with the court, this
QDRO included a marriage date of June 15, 2001. Reggie argued
that the earlier QDRO demonstrated that the parties had
“always” intended to “put the first marriage date as the date the
QDRO would be divided and through the divorce period.” Her
attorney explained that he “didn’t think [the Decree] needed [the
date] because [Kevin’s prior attorney] signed off on the QDRO
where it said that.” The district court found, based on the QDRO
signed by Kevin’s attorney in 2010, “that there is enough
evidence to show that the parties intended to use the first
marriage date to split the retirement.” It therefore denied
Kevin’s motion to enter a nunc pro tunc order amending the
QDRO.
(…continued)
defined benefit plan. As any differences between the orders are
not relevant to the issue presented on appeal, we refer to the
most recent version of the order for simplicity.
20180732-CA 3 2020 UT App 14
Peck v. Peck
¶7 Kevin next filed a motion pursuant to rules 60(a) and
60(b) of the Utah Rules of Civil Procedure, requesting that the
court either correct the date as a clerical error or set aside the
QDRO using “the residuary clause of rule 60(b)” due to gross
attorney negligence. (Quotation simplified.) The court denied
this motion as well. First, the court rejected Kevin’s rule 60(a)
argument because it found, “based upon the previous findings
and ruling by the Court at the January 18, 2018, hearing,” “that
there was no clerical mistake.” Second, the court rejected Kevin’s
rule 60(b) argument because it determined that Kevin’s
arguments on this point were “based on mistake or excusable
neglect,” matters that must be raised, according to rule 60, “not
more than 90 days after entry of the judgment or order.” Utah R.
Civ. P. 60(c). The court found that Kevin was attempting to
“circumvent the three month period” by framing his arguments
under the rule 60(b)(6) residuary clause when his allegations as
to the competence of his prior attorneys actually concerned
mistake and excusable neglect. The court therefore found
Kevin’s rule 60(b) motion to be untimely and denied it on that
basis. Kevin now appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Kevin asserts that the district court erred in denying his
motion for a nunc pro tunc order, his rule 60(a) motion to correct
a clerical mistake, and his rule 60(b) motion to set aside the
QDRO. Because both the motion for a nunc pro tunc order and
the rule 60(a) motion turned on the existence of a clerical error,
we address Kevin’s arguments with respect to both motions as a
single issue. In doing so, we accept the court’s factual findings
unless they are shown to be clearly erroneous, Stonehocker v.
Stonehocker, 2008 UT App 11, ¶¶ 9, 44, 176 P.3d 476, but review
its ultimate determination regarding the existence of a clerical
error for correctness, see State v. Rodrigues, 2009 UT 62, ¶ 11, 218
P.3d 610; Behrman v. Behrman, 2006 UT App 257, ¶ 8, 139 P.3d
20180732-CA 4 2020 UT App 14
Peck v. Peck
307. With respect to the court’s denial of Kevin’s rule 60(b)
motion, the court “is afforded broad discretion . . . , and its
determination will not be disturbed absent an abuse of
discretion.” Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct. App.
1989).
ANALYSIS
I. Clerical Error
¶9 “A clerical error is one made in recording a judgment that
results in the entry of a judgment which does not conform to the
actual intention of the court.” State v. Rodrigues, 2009 UT 62, ¶ 14,
218 P.3d 610 (quotation simplified). Rule 60(a) of the Utah Rules
of Civil Procedure permits a court to “correct a clerical mistake
. . . whenever one is found in a judgment, order, or other part of
the record.” Utah R. Civ. P. 60(a). “On the other hand, a judicial
error is one made in rendering the judgment and results in a
substantively incorrect judgment.” Rodrigues, 2009 UT 62, ¶ 14
(quotation simplified). Judicial errors are not subject to
correction under rule 60(a) but must be challenged either in the
context of appeal or, in limited cases, through a rule 60(b)
motion to set aside. See Fisher v. Bybee, 2004 UT 92, ¶¶ 10–11, 104
P.3d 1198 (explaining the limitations of rule 60(b) in challenging
alleged legal errors); Thomas A. Paulsen Co. v. Industrial Comm’n,
770 P.2d 125, 130 (Utah 1989) (explaining that a district court
may generally correct only clerical errors, not judicial errors).
“The distinction between a judicial error and a clerical error does
not depend upon who made it. Rather, it depends on whether it
was made in rendering the judgment or in recording the
judgment as rendered.” Lindsay v. Atkin, 680 P.2d 401, 402 (Utah
1984) (quotation simplified).
¶10 Kevin maintains that the use of the first marriage date,
rather than the second marriage date, in the QDRO is a clerical
20180732-CA 5 2020 UT App 14
Peck v. Peck
error because it does not reflect the intention of the second
decree. Reggie, on the other hand, asserts that this cannot be
considered a clerical error because the court found that the
parties intended to use that date in the QDRO. 3
3. Based on the plain language of the second divorce decree,
which was based on the parties’ stipulation, the use of the first
marriage date in the QDRO does seem to be an error. A QDRO
must conform to the terms of the decree that it effectuates.
Indeed, a QDRO is merely a mechanism by which the retirement
provisions of a divorce decree are enforced. See In re Kiley, 2018
UT 40, ¶ 4, 427 P.3d 1165 (defining a QDRO as “the document
that would permit [an alternate payee] to access [the plan
participant’s] retirement funds”); Bailey v. Bailey, 745 P.2d 830,
832 (Utah 1987) (explaining that a QDRO “furnishes instructions
to the trustee of a retirement plan and specifies how
distributions should be made”); Potts v. Potts, 2018 UT App 169,
¶ 1 n.2, 436 P.3d 263 (“A [QDRO] instructs the trustee of a
retirement plan and specifies how distributions should be made,
to whom, and when.” (quotation simplified)); see also Johnson v.
Johnson, 2014 UT 21, ¶ 17 n.28, 330 P.3d 704 (rejecting the
assertion that a QDRO must be filed for a beneficiary “to enforce
her right to payments,” explaining that the party’s entitlement to
a share of the benefits is established by the decree itself, not
subsequent documents filed to enforce the payment by a plan
administrator). And there are no findings or other explanation in
the second decree indicating that the parties or the court
intended for the retirement to be divided as of the date of the
first marriage. The only mention of the previous marriage in the
decree is the bare factual statement, in an early paragraph
outlining the historical background of the parties’ marriage, that
the parties “had previously been married to each other on June
15, 2001, then divorced.” The decree does not assign any
(continued…)
20180732-CA 6 2020 UT App 14
Peck v. Peck
¶11 “[O]ur clerical error analysis generally focuses on (1)
whether the order or judgment that was rendered reflects what
was done or intended, (2) whether the error is the result of
judicial reasoning and decision making, and (3) whether the
error is clear from the record.” Rodrigues, 2009 UT 62, ¶ 14. Here,
the court found that the parties intended to use the date of the
first marriage in the QDRO based on Kevin’s prior attorney’s
approval of the QDRO as to form. Kevin does not challenge this
finding on appeal but instead asserts that any such intention is
irrelevant because the QDRO must reflect the terms of the
second decree, which contains no findings or conclusions
indicating the parties’ or the court’s intent to divide the
retirement based on the first marriage date. See supra note 3. But
the fact that the plain language of the divorce decree suggests
that it may have been legal error to use the first marriage date in
the QDRO does not mean that the parties and the court did not
intend to use that date. And Kevin has not challenged the court’s
finding that the parties intended—erroneously or otherwise—to
use the first marriage date. The fact that the parties stipulated to
and the court approved a QDRO that contained a legal error
(…continued)
relevance to this factual statement, let alone link it specifically to
the retirement division. The retirement provision states only that
“[r]etirement will be divided according to the formula set forth
in the case of Woodward v. Woodward,” 656 P.2d 431 (Utah 1982),
and in fact, the decree’s alimony provision explicitly states, “This
is a 5 year marriage . . . .” Further, we have previously required
courts attempting to divide assets from a previous marriage in a
second divorce to make specific findings supporting either a
modification of the first divorce or a division of premarital assets
based on “the existence of exceptional circumstances.” Kelley v.
Kelley, 2000 UT App 236, ¶¶ 22–24, 9 P.3d 171. No such findings
were contained in the decree here.
20180732-CA 7 2020 UT App 14
Peck v. Peck
ultimately demonstrates an error of judicial decision making, not
a mistake in memorializing the QDRO. But Kevin did not object
to the QDRO when it was proposed and therefore lost the
opportunity to challenge this legal error directly. While this is
unfortunate, he cannot now remedy his failure to timely object
by reframing the error as clerical. Because we agree with the
district court that Kevin cannot establish that the marriage date
used in the QDRO was a clerical error, we affirm the district
court’s refusal to enter a nunc pro tunc order reforming the
QDRO.
II. Rule 60(b)
¶12 Kevin next asserts that the district court erred in denying
his motion to set aside the QDRO pursuant to the residuary
clause of rule 60(b) of the Utah Rules of Civil Procedure on the
ground that his prior attorneys were grossly negligent in failing
to notify him of hearings and orders, failing to appear at
hearings, and failing to object to the QDRO in a timely manner.
The district court determined that these arguments could not
properly be raised under the residuary clause of rule 60(b)
because Kevin’s prior attorneys’ actions “may constitute a
mistake or excusable neglect” and therefore would be more
properly addressed pursuant to rule 60(b)(1). Because a motion
under rule 60(b)(1) must be brought within ninety days, the
court dismissed Kevin’s motion as untimely.
¶13 “Rule 60(b)(6) [the residuary clause] is the ‘catch-all’
provision of rule 60(b).” Menzies v. Galetka, 2006 UT 81, ¶ 71, 150
P.3d 480. Therefore, “it may not be relied upon if the asserted
grounds for relief fall within any other subsection of rule 60(b).”
Id. Rule 60(b)(1) permits a court to set aside a judgment for
“mistake, inadvertence, surprise, or excusable neglect.” Utah R.
Civ. P. 60(b)(1). “In cases where subsection (b)(1) applies, a
movant may not attempt to circumvent the three-month filing
20180732-CA 8 2020 UT App 14
Peck v. Peck
period by relying on another subsection.” Menzies, 2006 UT 81,
¶ 65.
¶14 Gross attorney negligence that is “too egregious and
exceptional to be encompassed by rule 60(b)(1)” may be assessed
under the residuary clause. Id. ¶ 74. Here, the district court did
not consider whether the actions of Kevin’s attorneys constituted
gross negligence. Instead, it determined that Kevin’s argument
did not fall within the residuary clause because it believed the
argument could be considered under rule 60(b)(1). See id. But our
supreme court rejected this approach in Menzies: “The rule is
that 60(b)(6) cannot be relied upon if the grounds for relief fall
within another subsection, not that 60(b)(6) does not apply if the
court has . . . considered another ground.” Id. The district court in
this case did not find grounds under rule 60(b)(1). Instead, it
found only that “if [Kevin’s] attorney failed to give him notice or
object that may constitute a mistake or excusable neglect” and
that “the issues raised . . . are possibly mistake or excusable
neglect.” 4 (Emphases added.) Without a finding that grounds for
relief existed under rule 60(b)(1), the district court should not
4. In its conclusion, the court states, “Rule 60(b)(6) cannot be
used to circumvent the three month period when Respondent is
laying blame upon his attorney, which allegations the Court has
found amounts to mistake or excusable neglect.” (Emphasis
added.) However, the court’s actual findings are equivocal on
this point, as noted above, and the court did not make any
findings regarding the efficacy of the attorneys’ actions or
inaction, how the prior attorneys’ representation affected Kevin,
or whether any mistake or neglect on the part of the prior
attorneys was excusable. Thus, we cannot construe this final
summation in the district court’s order as a finding that the
attorneys’ actions actually established grounds of mistake or
excusable neglect.
20180732-CA 9 2020 UT App 14
Peck v. Peck
have refused to consider Kevin’s gross attorney negligence
argument under the residuary clause. We therefore must reverse
the district court’s ruling on Kevin’s rule 60(b) motion and
remand for further proceedings. 5
¶15 On remand, the court should determine whether Kevin’s
arguments establish mistake, excusable neglect, gross attorney
negligence, or none of these. If the court does find that Kevin’s
prior attorneys committed gross negligence, then the motion
may be rejected as untimely only if the court determines that it
was not “filed within a reasonable time.” Utah R. Civ. P. 60(c).
See generally Crane-Jenkins v. Mikarose, LLC, 2015 UT App 270,
¶ 12, 374 P.3d 1024 (discussing the standard for determining
whether a rule 60(b) motion has been brought within a
reasonable time).
5. The dissent disagrees with our decision to address this
argument, asserting that Kevin has not adequately challenged
the court’s findings on appeal. While Kevin has certainly not
developed his rule 60(b) argument as thoroughly as we would
like to see, he is clear in asserting that Menzies places gross
attorney negligence within the residuary clause of rule 60(b) and
that the district court erred in declining to consider his
arguments under the residuary clause. As the dissent points out,
this is the same argument he made to the district court, but that
is not inherently a basis to reject the argument or to consider it
inadequate. On appeal, Kevin asks us to correct what he
perceives as the district court’s error in rejecting his argument in
the first place. While our analysis is ultimately a bit more
nuanced, in that we acknowledge that analysis under the
residuary clause may be precluded by a finding that the facts
actually fall under another provision, Kevin’s assertion that
gross attorney negligence falls under the residuary clause is
well-taken.
20180732-CA 10 2020 UT App 14
Peck v. Peck
CONCLUSION
¶16 Because the marriage date listed in the QDRO was a legal
error, rather than a clerical error, the district court did not err in
declining to enter a nunc pro tunc order or in denying Kevin’s
rule 60(a) motion. However, we reverse and remand the court’s
ruling on Kevin’s rule 60(b) motion because the court’s findings
were insufficient to support its determination that the motion
was untimely.
POHLMAN, Judge (concurring and dissenting):
¶17 I would affirm. While I join the majority’s affirmance of
the district court’s refusal to enter a nunc pro tunc order, supra
¶ 11, I would not reach the merits of the district court’s rule 60(b)
decision, supra ¶¶ 12–15, or reverse on that basis.
¶18 The majority concludes that the district court erred in
its rule 60(b) assessment because it failed to make sufficient
findings to support its apparent determination that the
motion fell under subsection (b)(1) rather than the catchall
subsection, (b)(6), and was therefore untimely. Supra ¶¶ 12–15.
The majority faults the court for failing in its rule 60(b) decision
to find that grounds under subsection (b)(1) had “actually [been]
established.” Supra ¶ 14 & n.4. But on appeal, Kevin has
mounted no challenge to the sufficiency of the district court’s
rule 60(b) findings, and he makes no argument that its
decision should be reversed because it failed to find that rule
60(b)(1) grounds had been established. Thus, in my view, the
majority’s conclusion on the rule 60(b) issue seems to stray into
advocacy, essentially making for Kevin an argument that he did
not make for himself and then reversing the matter on that
ground.
20180732-CA 11 2020 UT App 14
Peck v. Peck
¶19 As our supreme court has explained, “our appellate
system has developed along the adversarial model, which is
founded on the premise that parties are in the best position to
select and argue the issues most advantageous to themselves,
while allowing an impartial tribunal to determine the merits of
those arguments.” State v. Johnson, 2017 UT 76, ¶ 8, 416 P.3d 443
(cleaned up); see also id. ¶ 74 (Lee, J., concurring) (“Ours is an
adversary system. Within it judges are sworn to follow the law
in an evenhanded, objective manner. We sidestep that system
when we take on a role of advocacy.”). In such a system, values
of fairness and judicial economy dictate that our appellate courts
“will not independently root around in the record to try to figure
out whether” the district court “got it right.” Living Rivers v.
Executive Dir. of the Utah Dep’t of Envtl. Quality, 2017 UT 64, ¶ 51,
417 P.3d 57; see also Johnson, 2017 UT 76, ¶ 8 (stating that our
adversarial system “preserves judicial economy and fairness
between the parties”).
¶20 Instead, in our system, appellants carry the burden to
persuade a reviewing court through reasoned, supported
argument that the district court committed harmful, reversible
error—a burden that necessarily requires the appellant to
address the reasoning and basis of the district court’s ruling and
to explain why that court got it wrong. See Living Rivers, 2017 UT
64, ¶¶ 41–43, 50–51; Duchesne Land, LC v. Division of Consumer
Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (“Because [the
appellants] have not addressed the actual basis for the district
court’s ruling, they have failed to persuade us that the district
court’s ruling constituted error . . . .”); see also Utah R. App. P.
24(a)(8). If an appellant fails to carry this burden, our appellate
courts have repeatedly held that the desire to correct what may
amount to legal error must give way to the well-established
“institutional constraints” and values underlying our adversarial
system. Goldenwest Fed. Credit Union v. Kenworthy, 2017 UT App
191, ¶ 16, 406 P.3d 253 (affirming the district court’s grant of
20180732-CA 12 2020 UT App 14
Peck v. Peck
summary judgment where the appellant failed to demonstrate
error in the district court’s decision, observing that principles of
“preservation and adequate briefing must prevail over legal
correctness”); see also Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51
(affirming the decision below where the appellant “utterly”
failed to point out any error in that decision or explain why the
decision was wrong, instead merely restating the same legal
position that was rejected below); Allen v. Friel, 2008 UT 56, ¶¶ 7,
14, 194 P.3d 903 (setting forth an appellant’s burden on appeal,
which requires addressing the district court’s reasoning and
demonstrating the error in that reasoning and the court’s
ultimate ruling, and dismissing the appellant’s appeal where he
failed to address the district court’s actual holdings).
¶21 These same principles, in my view, should dictate
affirmance of the district court’s rule 60(b) ruling here. Kevin
merely restates to us the same reasons why he should be entitled
to relief under rule 60(b) that were rejected by the district court’s
ruling. See Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51. He makes
no attempt to explain why the basis for the district court’s
decision is wrong, and he makes no argument that its findings
fail to sufficiently support its ultimate conclusion. See id. Indeed,
Kevin’s opening brief is virtually identical to the motion to set
aside that the district court rejected.
¶22 The majority’s conclusion on the rule 60(b) issue may be
correct as a matter of law. But, in my view, Kevin has not met his
burden to persuade us to even reach the merits of the issue. In
such circumstances, as we have held before, “our institutional
constraints [ought to] prevent us from reversing on the basis of a
winning argument that [Kevin] did not make.” See Goldenwest
Fed. Credit Union, 2017 UT App 191, ¶ 16. On this basis, I would
affirm the district court’s rule 60(b) decision.
20180732-CA 13 2020 UT App 14