dissenting.
I certainly agree with the majority that “matters of taxation are part of the pragmatic effects of the division of property and the award of spousal support and are to be considered in making those determinations.” What I disagree with is how those tax matters are to be reviewed by this appellate, court. Apparently, the majority has provided litigants a choice of avenues: an appeal or a motion to clarify. I believe that is wrong and I therefore dissent.
Actually, there are several'reasons for my disagreement. The first is rather obvious. Rule 60(b) is not to be used as a substitute for appeal. E.g., Production Credit Ass’n v. Dobrovolny, 415 N.W.2d 489 (N.D.1987); First National Bank of Crosby v. Bjorgen, 389 N.W.2d 789 (N.D.1986); City of Wahpeton v. Drake-Henne, Inc., 228 N.W.2d 324 (N.D.1975). By condoning a procedure that allows LeRoy to choose between appealing or “seeking clarification” under Rule 60(b), the majority institutionalizes the corruption of our rules.
It also dramatically reduces the burden on the moving party under Rule 60(b). Traditionally, we have required that the party requesting relief from a final judgment under Rule 60(b)(vi) demonstrate specific, extraordinary grounds which justify disturbing the finality of the judgment. E.g., Bjorgen, supra. This is because the relief provided by subdivision (vi) is deemed extraordinary. Drake-Henne, Inc., supra. While motions to modify support judgments are an exception to our finality rule, modification requires a material change in circumstances, not just any old change. So even modification of judgments must be viewed in the context of the usual homage paid to the finality of judg*597ments. I do not know why LeRoy did not appeal from this judgment and complain about the uncertainty of its tax consequences. After all, whatever uncertainties inhere in the judgment have inhered there from the beginning and were not produced by subsequent events. Compare with Anderson v. Anderson, 522 N.W.2d 476 (N.D.1994) [request that father pay for child’s first year of law school produced question as to meaning of the phrase “four years of college”]; Sullivan v. Quist, 506 N.W.2d 394 (N.D.1993) [party’s request for reimbursement of child’s college expenses raised question of which expenses judgment permitted be reimbursed]; Wastvedt v. Wastvedt, 371 N.W.2d 142 (N.D.1985) [sale of marital home produced question as to the continuation of ex-spouse’s duty to make mortgage payments]. But LeRoy didn’t appeal. As it turns out, he didn’t have to. The majority forgives his trespass, all too blithely, I think. While the merits may favor LeRoy, our reaching them ought not muddy up our procedure which till now has been straightforward and unremarkable: to correct error, appeal. See Matter of Estate of Hansen, 458 N.W.2d 264 (N.D.1990) [error of law is not grounds for relief under NDRCivP 60(b)]; Dobrovolny, supra [fact that trial court made a poor judgment or one which this court would not have made does not justify Rule 60(b) relief].
The majority also sidesteps the lesson derived from our prior cases involving clarification. In each of those eases, it was necessary to clarify an ambiguous provision in the judgment that actually hindered enforcement of the decree because the ambiguity created a real controversy between the parties. Anderson, supra, [clarification necessary to resolve father’s liability for educational expenses of daughter]; Sullivan, supra [clarification necessary to resolve parties’ dispute over permissible reimbursement from marital property for children’s educational expenses]; Conitz v. Conitz, 467 N.W.2d 93 (N.D.1991) [clarification necessary to enforce temporary restraining order by determining its application to particular property]; Gross v. Gross, 466 N.W.2d 154 (N.D.1991) [clarification necessary to enforce distribution of the proceeds of the sale of the marital home]; Wastvedt, supra [clarification necessary to enforce provision requiring indefinite mortgage payments by one spouse]. These cases illustrate the point that a motion to clarify is appropriate only when clarification is necessary to aid in enforcement of the judgment.
Here, there is no obstacle to enforcement and no need for clarification to enforce the decree. LeRoy is paying $1,000 a month and there is no dispute between the parties. While a dispute may arise upon Mary’s remarriage or a material change in either party’s circumstances, it is not manifest in this case. See Snortland v. Crawford, 306 N.W.2d 614 (N.D.1981). In effect, the majority has given a verboten advisory opinion.
Now that litigants have been bestowed the opportunity to correct alleged error in a decree by a motion to clarify, rather than by a direct appeal, I assume they will take ready advantage of that loophole. It certainly expands this court’s jurisdiction beyond the rather narrow confines of a sixty-day deadline to appeal from a judgment. The majority has extended the welcome mat to a significant new class of litigants.
I would affirm the trial judge because his decision that LeRoy was using the motion to clarify as a substitute for appeal was rational, noncapricious and represented a sound application of our case law to the facts, and because there is no real dispute between the parties as things now stand.