Gruebele v. Gruebele

VANDE WALLE, Justice,

concurring specially.

I agree that the basic premise of the divorce court’s judgment was to divide the property of the parties equally, but it also appears that it was the intent of the court that all the property of the parties be sold. The property was, in fact, all sold and Jacob purchased the real property in question. In this respect there was no mistake. However, because the real property was advertised as being offered with a reservation of minerals and because Jacob testified he knew he was not to receive the minerals, the question arises as to whether or not Erna received a fair share of the proceeds of the sale of the property. Although, as the majority opinion notes, there is no evidence in the record to indicate that the bids on the property would have been higher had it been advertised without a mineral reservation, it is apparent the minerals have some value because there is a lease on the minerals and the reduced delay rental payment was the cause of Jacob’s realization of the divorce court’s ex parte orders.

I concur in the result reached by the majority opinion because it appears to me that in matters of property division the divorce court is the proper place to determine any mistakes which may have occurred in carrying out the court’s judgment. Therefore, in the broad sense, I agree that the divorce court had jurisdiction to issue the ex parte orders which gave Erna one-half of the couple’s interest in the minerals. If Jacob was dissatisfied with this result he could have petitioned the divorce court for a hearing on the matter rather than instituting a separate action before another court to challenge those orders.

Because it is apparent that the divorce court intended that all the property, including the minerals, be sold, the real property should have been advertised and sold without reservation. When the sale, but not the advertisement, was completed without reservation, the divorce court, in an apparent attempt to rectify any possible inequity, determined, ex parte, that an amended judgment should be entered transferring one-half of the minerals Jacob had purchased, which purchase the divorce court had affirmed, to Erna. At that time, it seems to me, the better procedure would have been to give notice to Jacob and permit a hearing thereon. It stretches the intention of Rule 60(a), N.D.R.Civ.P., to conclude that this series of events was a clerical mistake or an “error arising from oversights or omission” which permitted the entry of a corrective order without a hearing as contemplated by that rule. The error was on the part of the receiver in advertising the property for sale subject to a mineral reservation in the owners (Jacob and Erna) contrary to the order of the court and then, in an apparent attempt to correct that error, compounding the problem by conveying the property to Jacob without such a reservation. There is no evidence, however, that Jacob was the cause of these actions by the receiver. Had a hearing been held at the time this error was brought to the attention of the trial court by Erna’s attorney, perhaps the proceedings *814resulting in this appeal would have been avoided.

Although equity demands that we reverse the judgment, due process also may demand that Jacob receive notice and the opportunity for a hearing before one-half of the mineral interest he purchased, which purchase the divorce court affirmed, was transferred to Erna. If, as Jacob contends, the advertisement with the mineral reservation had no effect on the bids submitted for the property, he would be entitled to present his evidence, Erna would have the opportunity to challenge his contention, and the judge ordering the sale of the property in the first instance would, most properly, be the one to resolve the issue.