No. 84-267 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

HELEN FEDEROFF CANTION, 

Petitioner and Respondent, 

and 

1.mx ERNEST CAI$P;ION, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF -CORD: 

For Appellant: 

Tipp, Hoven, Skjelset & Frizzell, Missoula, 

Montana 

For Respondent: 

Stewart A. Pearce, Missoula, Montana 

Submitted on Briefs: Dec. 13, 1984 

Decided: March 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 (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; 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: ,f