No. 82-73
I N T E SUPREME COURT O THE STATE O MONTANA
H F F
1982
Il3 RE THE MARRIAGE O F
CAROLE LOUISE W I N N ,
P e t i t i o n e r and A p p e l l a n t ,
GRANT MARION W I N N ,
Respondent and Respondent.
Appeal from: D i s t r i c t Court of t h e F o u r t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a
Honorable John S . Henson, J u d g e p r e s i d i n g .
Counsel o f Record:
For P e t i t i o n e r :
I i o l t , HcChesney & Borg; H. L. H o l t , M i s s o u l a , Montana
For Respondent :
D a t s o p o u l o s , MacDonald & L i n d ; Ronald B. MacDonald,
M i s s o u l a , Montana
S u b m i t t e d on b r i e f s : August 5 , 1982
Decided: September 23, 1982
. ,
Filed:
SEP 2 IJ iztuL
Y w
Clerk
Mr. Justice John C. Sheehy delivered the Opinion oE the
Court.
Carol Louise Winn appeals from an order of the District
Court, Fourth Judicial District, Missoula County, denying
her motion to amend a decree dissolving her marriage to
Grant Marion Winn. We affirm the District Court, except
for an amendment to correct a clerical error.
The parties were married in 1960. Five children were
born of the marriage. However, the dispute in this case
involves only whether the District Court should have amended
its decree of marital dissolution so as to revalue certain
shares of stock owned by the husband at the time of the
dissolution in one A. E. Brim and Company.
A schedule of the events as they are found in the file
following the decree of marital dissolution is essential to
an understanding of this case.
April -- The District Court entered findings,
14, 1980.
conclusions, and decree. Part of the decree required
husband to pay wife $1,320 in twelve equal installments of
$120 beginning May 1, 1980 for the value of the Brim stock.
April - -
14, 1980. Notice of entry of decree served by
mail by the clerk of the court upon both parties.
April --
23, 1980. Wife filed a motion to amend findings
of fact and judgment. Also served notice of hearing on
motion. Hearing set for May 1, 1980.
May 1, 1980.
- - P
Hearing continued by District Court order
for 30 days.
- - 1980.
June 2, Written notice that wife will call up
post-decree motions for hearing on June 5, 1980.
- -5, 1980.
June - (Court minutes.) Hearing held. Parties
stipulated to changes in the findings, conclusions and
judgment. (Particulars not set out.) Amended decree order
prepared.
January --
22, 1981. Wife filed motion to revalue Brim
stock from $5,322 to $26,000 and to amend the decree of
marital dissolution accordingly.
7, 1981.
October - - The court entered findings of fact,
conclusions and order, in effect denying motion to revalue
stock, but amending the original decree to correct an admitted
clerical error; amendment required husband to pay wife
"$2,661 in 22 equal installments of $120 beginning May 1,
1980."
November - -
4, 1981. Service of notice of entry of order
of October 7, 1981 by the clerk of the court.
November - -
30, 1981. Notice of appeal filed by wife and
served December 1, 1981 by the clerk of the court.
The initial decree of the District Court on April 14,
1980, distributed the value of the Brim stock as follows:
"The Respondent [husband] shall pay unto the
Petitioner one-half of the value of the Brim
stock having a value in the amount of $2,640,
thereby paying unto the Petitioner an amount
of $1,320 payable in 12 equal payments with
a payment of $120. Said payments to commence
on the 1st day of May, 1980."
It is agreed, in fact stipulated by the parties, that
as a result of clerical error, the court incorrectly entered
the total value of the Brim stock in its decree as the sum
of $2,640 when the proper value of the stock, based upon
the evidence at the dissolution hearing, should have been
$5,322.
Wife moved the court on April 23, 1980, under Rule
52 (b), M. R.Civ.P. to amend its findings of fact and judgment
in several particulars, including the correct valuation of
the Brim stock. The Rule 52 (b), motion was properly
noticed for hearing under Rule 59(g), M.R.Civ.P. on May 1,
On May 1, 1980, the district judge continued the hearing
on the Rule 52(b) motion for 30 days upon written stipulation
of counsel which read:
"The parties further stipulate and agree that
in the event of appeal by either party Winn,
no issue will be made of the delay in oral
argument and hearing of the Petitioner's Motions,
and further stipulate the Trial Judge may rule
on the Motions of the Petitioner after hearing
and argument, and the continued time will not
be invoked by counsel to attack the jurisdiction
of the court to rule on Petitioner's Motions."
The hearing occurred on June 5, 1980. No order was
entered on the hearing, but the minutes of the District
Court for that date reflect that:
"Thereafter, the parties stipulated to various
changes in the Findings of Fact, Conclusions
of Law and Judgment and the Court ordered an
Amended Decree to be prepared in accordance
with said stipulated changes."
Nothing further occurred with respect to wife's Rule
52(b) motion to amend the findings and judgment until January
22, 1981, when the wife filed a new motion, with supporting
affidavit, requesting the court to "correctly value Brim stock."
On February 11, 1981, the court set this motion for hearing
on April 22, 1981. The minutes of the court reflect that on
agreement of the court and counsel, the hearing on the new
motion was continued on Monday, May 4, 1981.
The hearing occurred on May 4, 1981, and after receiving
briefs and further proposed findings from counsel, the court
entered its findings of fact, conclusions of law and order
on October 7, 1981. In effect, the findings, conclusions
and order denied all of the motions of the wife for modification,
except that the court entered the following provision with
respect to the Brim stock:
"The respondent shall [pay] unto the Petitioner
one-half of the value of the Brim stock having
a value in the amount of $5,322, thereby paying
unto the Petitioner the amount of $2,661 in
22 equal payments of $120 per month to commence
on the 1st day of May, 1980."
It appears from the testimony at the May 4, 1981 hearing
and from other documents in the file that husband had sold
or agreed to sell all of his shares in the A. E. Brim
Company for the sum of $26,000. He contended that although
he had testified that the Brim stock had no value or only
nominal value at the hearing before the initial decree of
marital dissolution, he had no knowledge of the proposed
sale of the Brim stock for $26,000 until after June 5,
1980. The District Court found that there was no concealment,
fraud or misrepresentation on the part of husband in connection
with the Brim stock. In its findings entered on October 7,
1981, the District Court refused to amend the judgment to
grant any further amount of money from the sale of the Brim
stock to the wife upon the grounds that the decree as now
constituted put a disproportionate burden upon the husband
for the support of the children and other responsibilities.
The court also took the position that the wife's motion of
January 22, 1981, to revalue the Brim stock for purposes of
distribution of the marital estate was in effect a Rule
60(b),motion based upon newly discovered evidence and as
such should have been filed within 60 days of the date of
the entry of judgment.
On this record, the wife raises several issues, including
whether the judge erred in applying the 60 day provision
under Rule 60(b), M.R.Civ.P., whether it erred in refusing
to provide her a greater amount from the revalued Brim stock,
whether the husband had an affirmative duty to inform the
court and the wife of the market value before the October 7,
1981 judgment, whether her maintenance award is proper and
whether the District Court erred in denying wife costs and
attorney fees .
However, the dispositive issue on the wife's Rule 52
motion is whether the appeal is timely.
When a motion is made to amend findings or to make
additional findings and to amend the judgment, in a case
tried by the court without a jury, under Rule 52(b), M.R.Civ.
that motion becomes subject to the time limitations of a
motion for new trial. Rule 59(g), M.R.Civ.P.
Therefore, once a motion is made under Rule 52(b) to
amend findings and judgment, a hearing on that motion must
be had within 10 days after it has been served, and a
District Court may issue an order continuing the hearing
thereon for not to exceed 30 days. Rule 59 (d), M.R.Civ.P.
In this ca.se, the District Court, upon stipulation of the
parties, continued the hearing required under Rule 59(d),
for 30 days, but the hearing was actually held five days
later than the extended date, on June 5, 1980.
The District Court lost jurisdiction of the Rule 52(b),
motion when the hearing on the motion was not held within
the time limits of Rule 59 (d). Oster v. Oster (1980),
Mont. , 606 P.2d 1075, 37 St.Rep. 264.
Rule 59(d), further provides that once the hearing is
held the "court shall rule upon and decide the motion within
15 days after the same is submitted." In this case although
the court ordered that an amended judgment be prepared for
its signature, such amended judgment apparently was not sub-
mitted to the court within 15 days and here the court did
not "rule upon or decide the motion" within the 15 days
provided in Rule 59(d). Therefore, even if the June 5
hearing date was not itself untimely under Rule 59(d), the
motion of the wife to amend the findings was deemed denied
at the expiration of the 15 day period, or June 20, 1980.
We have held that a motion to amend the judgment if not
decided within 15 days after the case has been submitted is
deemed denied by operation of law and it is error for the
District Court to rule on the motion after the expiration of
the 15 day period. Kelly v. Sell (1978), 175 Mont. 440, 547
P.2d 1002; Cain v. Harrington (1973), 161 Mont. 401, 506
P.2d 1375.
Once the Rule 52(b) motion was deemed denied, the
District Court could no longer rule on it. This court has
held that when the time runs out to make such an order, any
subsequent order by the District Court concerning the motion
is outside the court's jurisdiction. Leitheister v. Montana
State Prison (1973), 161 Mont. 343, 505 P.2d 1203.
In this case the time for wife's appeal from the
judgment of April 14, 1980, began to run on May 3 1 , 1980,
the last day under Rule 59 when her motion could have been
heard by the court. She thereafter had 30 days in which to
file her notice of appeal. Britton v. Burlington Northern,
Inc. (1979), - Mont . , 601 P.2d 1192, 36 St-Rep. 1956.
Except for the clerical error which we will discuss hereafter,
the wife's appeal from those matters raised in the Rule 52
motion is not timely and this Court has no jurisdiction of
the appeal because of her failure to file a notice of appeal
in a timely manner. Rule 4, M.R. App.Civ.P.
That the parties may have stipulated the jurisdiction
of the District Court, or may have agreed not to raise the
question of lack of jurisdiction, does not confer jurisdiction
on t h e D i s t r i c t C o u r t t o d e c i d e a c a s e beyond t h e t i m e
l i m i t a t i o n s e x p r e s s l y p r o v i d e d by Rule 59, P1.R.Civ.P.
Marvel B r u t e S t e e l B u i l d i n g v. Bass (1980) , - Mont .- I
616 P.2d 380, 37 St.Rep. 1670. A c o u r t which l a c k s
j u r i s d i c t i o n c a n n o t a c q u i r e it by c o n s e n t of t h e p a r t i e s .
Corban v . Corban ( 1 9 7 2 ) , 1 6 1 Hont. 93, 504 P.2d 985.
W e now c o n s i d e r t h e w i f e ' s motion t o r e v a l u e t h e B r i m
s t o c k f i l e d J a n u a r y 2 2 , 1981, and whether h e r a p p e a l from a
d e n i a l of t h a t motion may be c o n s i d e r e d by u s under t h e
post-judgment p r o v i s i o n s of Rules 52, 59 and 60, M.R.Civ.P.
When t h e w i f e moved t o r e v a l u e t h e B r i m s t o c k no o r d e r
had been e n t e r e d by t h e D i s t r i c t C o u r t r e s p e c t i n g t h e motions
h e a r d on June 5, 1981. Wife t a k e s t h e p o s i t i o n t h e r e f o r e
t h a t t h e motion t o r e v a l u e t h e B r i m s t o c k c a n n o t be c o n s i d e r e d
a motion under Rule 60 b e c a u s e no judgment o r o r d e r had
been e n t e r e d by t h e c o u r t from which s h e c o u l d a p p e a l .
While h e r s t a t e m e n t of t h e r e c o r d i s c o r r e c t , h e r r i g h t t o
a p p e a l from t h e o r i g i n a l d e c r e e and s u b s e q u e n t motions made
by h e r t o amend t h a t d e c r e e had e x p i r e d a s w e have d e m o n s t r a t e d
i n t h e foregoing discussion. The D i s t r i c t C o u r t t h e n n r o p e r l y
d e c i d e d t o t r e a t h e r motion t o r e v a l u e t h e s t o c k , made
J a n u a r y 22, 1981, a s a Rule 60 motion.
When Montana a d o p t e d i t s Rules of C i v i l P r o c e d u r e
(Chapter 13, Session Laws 1961) i t l a r g e l y f o l l o w e d t h e
F e d e r a l Rules o f C i v i l P r o c e d u r e t h e n i n e f f e c t . For t h e
most p a r t t h e r e f o r e , o u r Rules o f C i v i l P r o c e d u r e a r e t h e
same a s t h e f e d e r a l c o u n t e r p a r t s . One of t h e d i f f e r e n c e s
between t h e f e d e r a l r u l e s and t h e Montana r u l e s can b e found
i n Rule 60 ( b ) ( 2 ) .
Whereas under F e d e r a l Rules o f C i v i l P r o c e d u r e , Rule 6 0 ( b ) ,
(2), a motion f o r a new t r i a l on t h e ground of newly d i s c o v e r e d
e v i d e n c e must b e made n o t l a t e r t h a n one y e a r from t h e
e n t r y o f t h e judgment, u n d e r t h e Montana r u l e , s u c h a
motion must be made " n o t more t h a n 60 d a y s a f t e r t h e
judgment, o r d e r o r p r o c e e d i n g was e n t e r e d o r t a k e n i n a
\ 2 r mtice o f e n t r y o f judgment i s r e q u i r e d
c a s e ~3 Ce . . ."
I n t h i s c a s e , t h e c o u r t ' s d e c r e e was e n t e r e d on A p r i l
1 4 , 1980. The m o t i o n t o r e v a l u e t h e s t o c k was n o t made
u n t i l J a n u a r y 22, 1981. I f t h e motion i s c o n s i d e r e d t o b e
a Rule 6 0 ( b ) ( 2 ) motion f o r a new t r i a l on t h e ground o f
newly d i s c o v e r e d e v i d e n c e , t h e motion would have been t i m e l y
u n d e r t h e f e d e r a l r u l e b u t n o t t i m e l y u n d e r t h e Montana
rule.
A motion f o r a new t r i a l u n d e r Rule 60 ( b ) ( 2 ) upcn t h e
ground o f newly d i s c o v e r e d e v i d e n c e i s n o t c o m p l e t e l y f o r e -
c l o s e d however, by a f i l i n g a f t e r t h e t i m e l i m i t s s e t f o r t h
i n t h e r u l e whether w e c o n s i d e r t h e f e d e r a l r u l e o r t h e
Montana r u l e . I t i s n o t e d i n 7 Moore's F e d e r a l P r a c t i c e
"To summarize r e l i e f a f f o r d e d f o r newly d i s c o v e r e d
evidence. Newly d i s c o v e r e d e v i d e n c e i s a ground
f o r a motion f o r a new t r i a l u n d e r R u l e 59; b u t
t o b e t i m e l y , t h e motion must b e ' s e r v e d n o t l a t e r
t h a n 10 d a y s a f t e r t h e e n t r y o f judgment.' I f the
e v i d e n c e i s n o t , o r by due d i l i g e n c e c o u l d n o t
have been d i s c o v e r e d w i t h i n t i m e t o move f o r a new
t r i a l u n d e r Rule 5 9 ( b ) , t h e n a motion may b e made
u n d e r Rule 60 ( b ) ( 2 ) . The l a t t e r motion d o e s n o t
a f f e c t t h e f i n a l i t y o f t h e judgment, and i t must
be made w i t h i n a r e a s o n a b l e t i m e , and n o t l a t e r
t h a n a y e a r [60 d a y s ] a f t e r t h e e n t r y o f judgment.
I n a d d i t i o n t o t h i s r e l i e f , it i s a t l e a s t con-
c e i v a b l e t h a t r e l i e f might b e o b t a i n e d i n a n e x c e p t i o n a l
s i t u a t i o n by a n i n d e p e n d e n t a c t i o n t o e n j o i n t h e
e n f o r c e m e n t o f t h e judgment. "
Under f e d e r a l c a s e s , a motion f o r a new t r i a l b e c a u s e
o f newly d i s c o v e r e d e v i d e n c e made more t h a n one y e a r from
judgment must b e d e n i e d u n l e s s t h e s u b s t a n c e o f t h e motion
b r i n g s i t u n d e r Rule 6 0 ( b ) ( 6 ) . S u n f i r e C o a l Company v.
U n i t e d Mine Workers o f America (C.A.6th 1 9 6 4 ) , 335 F.2d 955,
cert.den. (19651, 379 U.S. 990, 85 S.Ct. 701, 13 L.Ed.2d
610; Westerly Electronics Ccrporation v. Walter Kidde and
Company (C.A. 2d 1966), 367 F.2d 269.
Montana's Rule 60 (b)(6), is the same as the federal
version providing that a new trial may be based on "any
other reason justifying relief from the operation of the
judgment."
While it is true therefore that in this case the motion
to revalue the stock, considered as a motion for a new trial
under Rule 60(b) came too late because it was filed more
than 60 days following the entry of judgment, it is also
true that relief could have been granted if the substance of
the motion brought it under Rule 60(b)(G), M.R.Civ.P.
Wife here is foreclosed from this contention, however,
because in addition to overruling her motion on the ground
that it was not timely, the court also went forward with
respect to the merits of the motion and determined that
there was no fraud, misrepresentation or concealment; and
that the husband in any event assumed a disproportionate
burden of support and maintenance so as to foreclose any
further relief from a re-evaluation of the Brim stock.
These findings are not clearly erroneous, and in view of
Rule 52(a), such findings may not be overturned by us.
We therefore affirm the District Court in denying any
amendment of its findings or decree relating to the later
determined value of the Brim stock.
Our consideration of the clerical error made by the
District Court in the first instance with respect to the
Brim stock brings us to another anomaly when we consider the
differences between Rule 60 in the Federal Rules of Civil
Procedure, and the same rule in the Nontana Rules of Civil
Procedure.
-10-
Rule 60 ( a ) , M.R.Civ.P., provides:
" C l e r i c a l m i s t a k e s . C l e r i c a l m i s t a k e s and
judgments, o r d e r s o r o t h e r p a r c e l s of r e c o r d ,
and i n p l e a d i n g s , and e r r o r s t h e r e i n a r i s i n g
from o v e r s i g h t o r omission may be c o r r e c t e d
by t h e c o u r t - - -i m e of i t s own i n i t i a t i v e
a t any t
o r on t h e motion of any p a r t y and a f t e r such
n o t i c e , i f any, a s t h e c o u r t o r d e r s . " (Emphasis
added. )
Rule 60 ( a ) , M.R.Civ.P. i s i n c o n f l i c t w i t h Rule 60 ( c ) ,
a c l a u s e which h a s no c o u n t e r p a r t i n t h e f e d e r a l r u l e , and
which p r o v i d e s as f o l l o w s :
"Time f o r h e a r i n g and d e t e r m i n i n g motions.
Motions p r o v i d e d by s u b d i v i s i o n s ( a ) and ( b )
s h a l l b e - h e a r d and-determined w i t h i n t h e t i m e s
p r o v i d e d by Rule 59 i n t h e c a s e of motions
f o r new t r i a l and amendment o f judgment."
Thus t h e Montana r u l e p r o v i d e s t h a t a c l e r i c a l m i s t a k e
can be c o r r e c t e d a t anytime (Rule 60 ( a ) ) and y e t Rule 60 ( c )
p r o v i d e s t h a t s u c h a motion c a n n o t be made a f t e r t h e t i m e
l i m i t s p r o v i d e d by Rule 59.
W e r e s o l v e t h e seeming c o n f l i c t i n o u r Rule 60 by
s t a t i n g h e r e t h a t when a c l e r i c a l m i s t a k e o c c u r s i n a judgment,
o r d e r o r o t h e r p a r t of a c o u r t r e c o r d , and t h e e r r o r i s
a d m i t t e d , a s h e r e , o r where such e r r o r can b e c o r r e c t e d o r
t h e meaning of t h e judgment, o r d e r o r o t h e r r e c o r d can be
c l a r i f i e d without inequity o r prejudice t o another party,
s u c h c l e r i c a l e r r o r can be c o r r e c t e d by t h e c o u r t a t a n y t i m e ,
e i t h e r nunc p r o t u n c o r by a new o r d e r .
--- See Smith v. J a c k s o n
Tool and Dye, I n c . (5th C i r . 1 9 7 0 ) , 426 F.2d 5, 8. The same
o b j e c t i v e c o u l d be o b t a i n e d by a l l o w i n g such c l e r i c a l e r r o r
t o be c o r r e c t e d under Rule 60 ( b ) ( 6 ) (Doble v. T a l b o t t ( 1 9 7 8 ) ,
-- Mont .- 589 P.2d 9 9 4 , 999, 36 St.Rep. 52) b u t i t i s
o u r i n t e n t t o p r e s e r v e t h e power o f t h e D i s t r i c t C o u r t under
Rule 6O(a) t o c o r r e c t and m a i n t a i n a p r o p e r r e c o r d of i t s
p r o c e e d i n g s even though t h e t i m e l i m i t a t i o n s under Rule
60(c) and Rule 59, P4.R.Civ.P. have expired.
We therefore affirm the order of the District Court
dated October 7, 1981, overruling all of plaintiff's motions,
but including the correct valuation of the Brim stock as of
the date of the original decree, in the sum of $5,322.
However, we find another clerical error in the pro-
visions of the October 7, 1981 order of the District Court,
where the court ordered the payment by the husband to the
wife an amount of "$2,661 in 22 equal payments of $120 per
month to commence on the 1st day of May 1980." The statement
contains a,n arithmetical error.
The orders of the District Court are therefore affirmed
with the exception that the order of October 7, 1981 is
hereby amended with respect to the Brim stock so as to read
as follows:
"The respondent shall pay unto the petitioner
one-half of the value of the Brim stock having
a value in the amount of $5,322, thereby paying
unto the petitioner an amount of $2,661 in 22
equal payments of $120 per month and a final
payment of $21, such payments to commence on
the first day of May 1980."
Affirmed as amended.
We Concur:
Chief Justice
/'