No. 80-34 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

SUSAN W. THOMAS, 

Petitioner and Appel lant, 

-vs-. 

DR. E. DONALL THOIIAS I 

Respondent and Respondent. 

Appeal from: District Court of the Tenth Judicial District, 

In and for the County of Fergus, The Hc:norabl6 

LeRoy McFinnon, Judge presiding. 

Counsel of Record: 

For Appellant: 

Goetz and Madden, Bozeman, Montana 

For Respondent: 

K. Fobert Foster, Lewistown, Montana 

Filed: 

Subniitted on Briefs: August 13, 1980 

Decided : 

-8*kT 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

c his is an appeal from a judgment in the Tenth Judicial 

~istrict, Fergus County, which granted respondent's motion 

to amend the decree of dissolution and denied petitioner's 

motion to quash and to vacate. 

Susan Thomas, petitioner and appellant, and Dr. E. 

Donna11 Thomas, respondent, were married on July 2, 1973. 

One child was born to the marriage on May 22, 1975. The 

principal assets of the marriage consisted of Dr. Thomas' 

medical practice and the family home in Lewistown, Montana. 

Other assets included household furnishings, personal effects and two automobiles. 

On December 16, 1977, the parties entered into a 

separation agreement whereby each agreed that pending 

divorce or reconciliation, Susan would have custody of their 

child and Dr. Thomas would make maintenance and support 

payments. Additionally, they agreed that the family residence be l e f t i n their joint names and other assets were 

distributed accordingly. In the event of divorce proceedings, neither party was to be bound by the agreement relating to the property division. 

On February 27, 1978, petitioner filed for a dissolution of the marriage, alleging that the marriage was irretrievably broken. The petition requested that she be 

awarded custody of the child and prayed for child support 

payments, maintenance payments and an equitable division of 

all marital assets and liabilities. 

On August 24, 1978, a hearing was conducted on the 

petition. On the second day of trial, the ~istrict Court 

judge made findings of fact and conclusions of law and 
entered a written decree. The findings of fact and conclusions of law recited that the marriage was irretrievably 

broken, that the custody of the child was granted to petitioner and that respondent was to pay reasonable child 

support payments. The decree awarded petitioner $200 per 

month for child support and $750 for attorney fees. The 

findings contained no ruling with respect to petitioner's 

request for maintenance, and the decree awarded none. 

The court's findings contain no determination of the 

total net worth of the parties. The findings contain no 

determination of the net worth of the doctor's practice or 

of the relative financial contributions by either party. 

The court concluded that respondent should pay a monthly sum 

to the petitioner until $15,000 has been paid as part of the 

property settlement. 

The findings of fact are inconclusive also as to the 

family home, the title to which is in joint tenancy. The 

District Court's Finding of Fact No. 5 states, "[tlhat the 

parties acquired an equity in a home in Lewistown, of 

unknown value. . ." No disposition of the home appears in 

either the court's findings or the decree, thus leaving it 

in joint tenancy in both of the parties' names. 

Five months after the decree was entered, on January 

24, 1979, respondent filed a motion requesting that the 

decree be amended. The motion requested the ~istrict Court 

to award the family home to respondent. The motion was 

noticed for hearing on February 1, 1979. However, no hearing was held at that time. 

Ten months later on November 5, 1979, the ~istrict 

Court set a hearing date. Petitioner moved to quash the 

motion to amend and attempted to vacate the hearing date. 
This motion was denied. On December 5, 1979, the District 

Court found that it was the original intention of the court 

to distribute the family home to respondent and that the 

court had apparently erred in not so providing in the findings of fact and conclusions of law and decree. Respondent 

claimed mere clerical error which was correctable under Rule 

6O(a), M.R.Civ.P., and the District Court agreed. Amended 

findings of fact and conclusions of law and an amended 

decree were entered on December 10, 1979. The amended decree 

awarded the family home to respondent, and petitioner now 

appeals that decree. 

The sole issue on appeal is whether the asserted mistake or omission in the original findings of fact, conclusions of law and decree in the District Court's apportionment of marital property was mere "clerical error" and 

correctable under Rule 60 (a) , M.R.Civ.P., or whether it was 

"judicial error," therefore leaving the District Court 

without jurisdiction to amend the decree because the court 

did not act within the time set by statute. 

Because the house is a major, if not the major, asset 

of the marriage, the lack of a determination of its equity, 

value and disposition leads this Court to conclude that the 

District Court erred in its attempt to amend the decree in 

question. 

Rule 60(a), M.R.Civ.P., provides: 

"Clerical mistakes. Clerical mistakes in 

judgments, orders or other parts of the 

record, and in pleadings, and errors therein 

arising from oversight or omission may be 

corrected by the court at any time of its 

own initiative or on the motion of any party 

and after such notice, if any, as the court 

orders. " 
Rule 60(a) preserves the common-law power of District 

Courts to correct clerical errors in judgments at any time, 

since correction of such error by definition does not alter 

the substantive rights of the parties. 

Correction of judgment for "judicial errors" affects 

the substantive rights of the parties as pronounced in the 

judgment. A time limitation is imposed on a District 

Court's power to alter a decree. Motions to amend under 

Rules 50, 52, and 59, M.R.Civ.P., must be made within ten 

days following the entry of judgment. Motions to correct 

judicial mistakes must be made within sixty days after 

judgment. Rule 60(b), M.R.Civ.P. Respondent's motion to 

amend was made well after the dates stated. If this Court 

finds that the error was merely "clerical," under Rule 60(a) 

the District Court has jurisdiction to amend the decree in 

this case. If, however, this Court finds that the error was 

not "clerical" but "judicial," the District Court is without 

jurisdiction to enter the amended findings of fact and 

decree because it did not conform to the time limitations. 

"The time and procedural limitations for motions 

subsequent to judgment . . . are mandatory. 

Seibel v. Byers (Yurick), 136 Mont. 39, 344 P.2d 

129. In recent decisions by this Court, Cain v. 

Harrington, 161 Mont. 401, 506 P.2d 1375; and 

Leitheiser v. Montana State Prison, 161 Mont. 343, 

505 P. 2d 1203, we have reiterated the need to 

make final the judgments of the District Court 

subject to appeal that would not unnecessarily 

lengthen litigation. In Cain and Leitheiser we 

strictly applied Rule 59, M.R.Civ.P., in order to 

put to an end the litigation of those actions. " 

Armstrong v. High Crest Oils, Inc. (1974), 164 

Mont. 187, 196, 520 P.2d 1081, 1086. 

In State ex rel. Union Bank and Trust Co. v. District 

Court (1939), 108 Mont. 151, 91 P.2d 403, 406, we stated: 

. . . 'In case of an omission or error in the 

record, the power exists in the court to amend 

such record so that it shall conform to the 
actual facts and truth of the case: but a court 

-- 

cannot amend its record to correct a judicial 

error -- orrodtheeffect - of juzicial - nonaction.' . . . 'The authority - 

of a court to - amend its record Q a nunc pro tunc orderis -- 

toke ---- it- the truth, but ----- not to makeit 

speak what ---- it did not speak but ought -- to have 

spoken. . .' 

"That orders made by a court through mistake, --- inadvertance, -- want of sufficient consideration, 

oversight or otherwise, where they affect -- the substantial righm- are judicial errors 

- and cannot be coFected or removed Q summary 

action -- of the court whichmade -- them . . . " (Citations omitted. ) (Emphasis added. ) 

Since the family home, next to the doctor's medical 

practice was the single most valuable and important asset 

before the court, it is difficult to comprehend how the 

court could overlook specific apportionment of that asset. 

It is even more difficult to understand why respondent 

failed to bring the alleged "omission" to the court's attention by filing a timely motion to amend or clarify the 

decree, if he really believed the court had erred. 

The attempted change by the amended findings and decree 

adversely affected petitioner's substantive rights by depriving her of her interest in the family home. Such error 

is judicial and could not be corrected by the District Court 

except by motion made within the time limitations of Rules 

50(b), 52(b), 59 or 60(b) (I), M.R.Civ.P., available for the 

correction of judicial error. No such motion having been 

made, the error was correctable only by appeal which was 

never taken by either of the parties. The District Court, 

therefore, lacked jurisdiction to make the change effected 

by his entry of the amended findings and decree. 

There is no question that the District Court's original 

findings and decree are deficient. They fail to make a 

determination of the parties' total net worth. They fail to 
determine the value of respondent's medical practice, the 

relative financial contribution thereto by each party and to 

apportion that asset. They fail to determine the parties' 

equity in the family home and to equitably dispose of that 

asset by express language. However, since neither party 

made a timely appeal of the original findings and decree, 

the parties are bound by it, unless an appropriate proceeding is maintained subsequent hereto for clarification of the 

findings and decree. 

Since the amended findings and decree involve an attempt by the District Court to correct a judicial error 

which it had no jurisdiction to remedy, they must be set 

aside and the original findings and decree reinstated. 

Unfortunately, this result leaves open the possibility of 

further litigation arising out of the shortcomings in the 

findings and decree observed above. However, it is a circumstance for which the parties and the court are all responsible, each having had the opportunity to timely clarify 

the original findings and decree following their entry. 

The cause is remanded to the District Court. 

We concur: / I 

Justices