No. 84-267
I N THE SUPREME COURT O F THE STATE O F MONTANA
1984
I N RE THE MARRIAGE O F
HELEN FEDEROFF CANTION,
P e t i t i o n e r and R e s p o n d e n t ,
and
1.mx ERNEST CAI$P;ION,
R e s p o n d e n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t 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 C o u n t y of M i s s o u l a ,
T h e H o n o r a b l e Jack L . G r e e n , Judge p r e s i d i n g .
COUNSEL O F -CORD:
For Appellant:
T i p p , Hoven, Skjelset & F r i z z e l l , Missoula,
Montana
F o r Respondent:
S t e w a r t A. Pearce, Missoula, Montana
S u b m i t t e d on B r i e f s : Dec. 13, 1984
Decided: M a r c h 20, 1985
.!\
Filed:
Clerk
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.
On July 6, 1982, the District Court issued the final
decree dissolving the marriage and distributing the marital
estate of Helen Cannon and Max Cannon. Ten months later, on
May 9, 1983, Helen Cannon filed a motion to modify the final
decree distributing the marital estate. Roth parties were
heard on the motion and the District Court issued an order
designated "Corrective Order. " In the order the Court
awarded attorneys fees to respondent.
Affirmed in part and reversed in part.
Appellant, Max Cannon, construed this "Corrective Order"
as being a modification of judgment subject to Rule 60 (b),
M.R.Civ.P., and now raises several issues that are based on
that assumption. As will be explained in the following
paragraphs, the District Court has not revised the judgment
in a manner that requires Rule 60(b) to be applied,
therefore, appellant's assumption is incorrect and we do not
address those issues that are based on that assumption.
In the common law there was a concept that a case was
"in the breast of the judqes" during a term of court and the
judges could modify a judgment, even on their own motion,
until the term ended and the judgment could not he disturbed.
When "terms of court" became an obsolete concept and courts
began to function "at all times" the general rule became one
whereby an appealable order regul-arly made could not be
amended except as provided by statute. However, there was an
exception to this general rule: if an order made by a trial
court was inadvertently or improvidently made or prematurely
entered the court could vacate the order of its own motion.
See, Whitbeck v. Montana Cent. Ry. Co. (18981, 21 Mont. 102,
107-108, 52 P. 1098, 1-099-11.00. Later Montana cases have
refined the exception to the general rule set forth in
Whitbeck and present i t in its modern state:
. Ccurt's have
the power to amend their judgments to the end that they will
express what the court actual-ly decided. This can be done
only to express what was actually decided or to grant the
relief origina.11~intended. This cannot be used to correct
errors into which the court itself falls, that is, judicial
errors. Once the court has entered a judgment as intended,
though it may be erroneous, it becomes final and must stand
until it has been revised by procedures in accord with
statutes. The court cannot have a change of mind or correct
an erroneous decision. See, Price v. Zunchich (~ont.1980) ,
612 P.2d 1296, 1299, 37 St.Rep. 1058, 1061; State ex rel.
Truax v. Town of Lima (1948), 121 Mont. 152, 158, 193 P.2d
1008, 1011; State ex rel. Vaughn v. Di-strict Court ( 1 9 4 1 ) ~
111 Mont. 552, 555-556, 111. P.2d 810, 811; State ex rel.
Smith v. District Court 1 9 1 . 9 ) 55 Mont. 602, 606, 179 P.
831, 833; State ex rel. McHatten v. District Court (1918), 55
Mont. 324, 328-329, 176 P. 608, 609.
The facts of this case, furthermore, are such that an
application of Rule 60 (a), P4.R.Civ.P. is better supported
than is an application of Rule 60(h), M.R.C~V.P. As
Professor William F. Crowley states:
Rule 60, M.R.Civ.P., permits a court to correct
"clerical mistakes" in judgments, orders,
pleadings, or "other parts of the record" upon
motion of a party or its own initiative. Rule
60 (a), M.R.Civ.P. The court may also "on motion
and upon such terms as are just," and for a variety
of reasons, relieve parties from judgments or final
ord.ers. Rule 60 (b), M.R.Civ.P.
Rule 60(a), M.R.Civ.P, which permits the correction
of clerical errors, is of occasional use to judges
and lawyers but seldom has a crucial effect. The
courts have not permitted it to be used to
relitigate matters already decided or to change
what the court has deliberately done. It simply
allows the doing, a t a later date, of what was
.
originally intended but not accomplished. Unlike
most post-trial procedures, it has no time limit on
its use. William F. Crowley, Montana Pleading and
Practjce Forms, 275 (1983) .
The District Court in this instance has not had a change
of mind and it did not correct a judicial error, that is, it
did not correct an erroneous decision. The District Court in
this instance has merely issued a corrective order to amend
the judlgrnent to express what was actual-ly decided and to
grant the relief originally intended. This the District
Court can do.
The District Court clearly states in the order that the
order is made to fulfill the original int-ent of the final
decree. However, the District Court states in the order that
it wa.s not aware that an exj.sti.ng mortgage on a particular
piece of property included in the ma-rital estate reduced the
monthly income that the District. Court int.ended Helen Cannon
to receive and places the responsibility for this lack of
awareness on the appellant because of his failure to disclose
the existing mortgage. The record discloses, however, that
the appellant mentioned the mortgage on several occasions
throughout the course of the proceedings in this cause,
including in the original response and cross-petition and
answers to interrogatories. The District Court also made
several references to the mortgage in several orders that it
issued prior to the final decree.
We find that the District Court erred in reaching the
conclusion that the appellant failed to disclose the
mortgage. We find, though, that this error does not warrant
reversal of the order because the power that the District
Court had to amend its judgment existed independent of the
erroneous finding. The finding was not necessary to enable
the District Court to issue the order. This Court will not
reverse for an error that would have no significant impact on
the result, that is, when the eventual result obtained would
be the same. Kirby Co. of Rozeman v. Employment Security
Division of the Montana State Department of Labor and
Industry (Mont. 1980), 614 P.2d 1040, 1043, 37 St.Rep. 1255,
1258. We hold that, insofar as the District Court order
revised its judgment to meet the original intent, the order
shall stand.
The District Court awarded attorney's fees to the
respondent on the basis that the appellant failed to disclose
the existence of the mortgage, a fact well known to him, and
this failure unduly generated attorney's fees for the
respondent. It is clear, however, that the appellant did not
fail to disclose the existence of the mortgage. Therefore,
there is no extreme situation which would justify the award
of attorney's fees. The general rule on attorney's fees
applies in this case: absent a specific contract provision
or statutory grant, the prevailing party is not entitled to
an award of attorney's fees either as costs of the action or
as an element of damage. Martin TT. Crown Life Insurance
Company (Mont. 1983), 658 P.2d 1099, 1104, 40 St.Rep. 216,
221.
We hold that the District Court corrective order shall
stand as issued except for the award of attorney's fees. We
reverse the District Court's award of attorney's fees.
We Concur: ,
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