No. 84-267 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984

INRE THE MARRIAGE OF HELEN FEDEROFF CANTION, Petitionerand Respondent, and 

### 1.mxERNEST CAI$P;ION, Respondent and Appellant.

APPEAL FROM: DistrictCourtof the FourthJudicial District, Inand for the County of Missoula, The HonorableJack L. Green, Judge presiding.
COUNSEL OF -CORD: ForAppellant: Tipp, Hoven, Skjelset & Frizzell, Missoula, Montana
ForRespondent: StewartA. Pearce, Missoula, Montana

Submittedon Briefs: Dec. 13, 1984 Decided: March 20, 1985 

### .!\ Filed:

ClerkMr. 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. Tenmonths later,on May 9,1983,Helen Cannon filed amotion 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 inpart and reversed inpart. Appellant,Max Cannon,construed this "CorrectiveOrder"
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 arebased 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 judgmentcould nothe disturbed. When "termsof court" became an obsolete concept and courts began to function "atall times" the general rule became one whereby an appealable order regul-arlymade could not be amended except asprovided by statute. However,therewas an exception to this general rule: if an order made by a trial courtwas inadvertently or improvidently made or prematurely entered the court could vacate the order of its own motion.See,Whitbeck v. Montana Cent. Ry. Co. (18981,21Mont. 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-lydecided. 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 cannothave 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-strictCourt (1941)~ 111 Mont. 552, 555-556, 111. P.2d 810, 811; State ex rel. Smith v. District Court 191.9)55 Mont. 602, 606, 179 P. 831, 833; Stateex rel. McHatten v. DistrictCourt (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 ProfessorWilliam 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 avariety 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 judgesand 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, ithas no time limit on its use. William F. Crowley,Montana Pleading and PractjceForms, 275 (1983)

# . The District Court in this instancehas nothad a change of mind and it did not correct a judicial error, that is, it did not correctan erroneousdecision. The District Court in this instance has merely issued a corrective order to amend the judlgrnent to express what was actual-lydecided 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-entof the final decree. However,theDistrictCourt states in the order that it wa.snot aware that an exj.sti.ngmortgage on a particular piece of property included in the ma-ritalestate reduced the monthly income that the District.Court int.endedHelen Cannon to receive and places the responsibility for this lack of
awarenesson the appellantbecause ofhis 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 finaldecree. 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 notwarrant reversal of the order because the power that the DistrictCourt 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 foran error thatwould 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 respondenton the basis that the appellant failed todisclose the existence of themortgage, a fact well known to him, and this failure unduly generated attorney's fees for the respondent. It is clear,however, that the appellantdid 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 theDistrictCourt'saward of attorney's fees.We Concur: ,f