No. 80-34 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

SUSAN W. THOMAS, Petitioner and Appellant,



### -vs-. DR. E. DONALL THOIIAS I Respondent and Respondent.

Appeal from: DistrictCourt 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 ClerkMr. 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 toamend the decree of dissolution and denied petitioner's motion toquash and tovacate. 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 inLewistown, 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 thatpending 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 ntheir 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 allmarital 

### 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 factand conclusions of law andentered a written decree. The findings of fact and conclusions of 

### lawrecited that the marriage 

### was irretrievably broken, that the custody of the child

### was granted to petitioner and thatrespondent was topay 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 topetitioner's request formaintenance, 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 networth 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 factare inconclusive also

### as to the family home, the 

### title towhich 

### is injoint tenancy. The 

### DistrictCourt's Finding of Fact No. 

### 5 

### states, "[tlhatthe parties acquired an equity ina home inLewistown, of unknown value. 

# .." No disposition of the home appears in either the court's findings or the decree, thus leaving it injoint tenancy inboth 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 toaward the family home to respondent. The motion was noticed for hearing on February 1, 1979. However, no hearing

### was held 

### atthat 

### time. Ten months later on November 5, 1979, the ~istrict Court seta hearing date. Petitioner moved toquash the motion toamend and attempted to vacate the hearing date.

### This motion was denied. On December 5, 

### 1979, the District 

### Court found that it 

### was the original intentionof the court todistribute the family home torespondent and that the courthad apparently erred innot soproviding inthe findings of factand conclusions of 

### lawand decree. Respondent claimed mere clerical errorwhich 

### was correctableunder Rule 6O(a), M.R.Civ.P., and the DistrictCourt agreed. Amended findings of factand conclusions of law and an amended decree 

### were entered on December 10, 

### 1979. The amended decree awarded the family home torespondent, and petitioner now appeals thatdecree. The sole issue on appeal is

### whether the assertedmis

### take or omission inthe original findings of fact, conclusions of law and decree inthe DistrictCourt's apportionment of marital property was mere "clericalerror" and correctableunder Rule 60

### (a)

## , M.R.Civ.P., orwhether it

### was "judicial error," therefore leaving the DistrictCourt without jurisdiction to amend the decree because the court did not actwithin 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 thisCourt to conclude that the District 

### Court erred inits 

### attempt to amend the decree in 

### question. Rule 60(a),M.R.Civ.P., provides: "Clerical mistakes. Clericalmistakes in judgments, orders or other parts of the record, and inpleadings, and errors therein arising from oversight oromission may be corrected by the court atany 

### timeof 

### its own initiative or on themotion 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 injudgments 

### atany 

### 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 substantiverights of the parties 

### as pronounced inthe judgment. A 

### time limitation isimposed 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

### wasmerely "clerical," under Rule 60(a) the DistrictCourt has jurisdiction to amend the decree in this case. If, however, this Court finds that the errorwas not "clerical" but "judicial," the 

### District Court 

### iswithout jurisdiction to enter the amended findings of factand decree because 

### it did not conform to the time limitations. "The time and procedural limitations formotions subsequent tojudgment 

# . . . aremandatory. Seibel 

### v. Byers (Yurick), 136 Mont. 39, 344 P.2d 129. Inrecent decisions by this Court, Cain v. Harrington, 161Mont. 401, 506 P.2d 1375; and Leitheiser v. Montana StatePrison, 161Mont. 343, 505 P.2d 1203, we have reiterated the need to make final the judgments of the District Court subject to appeal thatwould not unnecessarily lengthen litigation. In Cain and Leitheiser we strictly applied Rule 59, M.R.Civ.P., inorder to put to an end the litigation of those actions.

### " Armstrong v. High CrestOils, Inc. (1974), 164 Mont. 187, 196, 520 P.2d 1081, 1086. In Stateex 

### rel. Union Bank and Trust Co. v. District Court (1939), 108Mont. 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 itsrecord tocorrect a judicial error 

### -- orrodtheeffectof juzicial non

### - 

## - action.' 

# . . . 'The authority of a court to -- 

### amend

# its record Q 

### a nunc 

### pro tunc orderis 

### -- toke it- 

### the truth, but not tomakeit 

## ---- ----- speak what it 

### did not speak but 

### ought to have 

### ---- 

## -- spoken. 

# . .' "That ordersmade by a court through mistake, 

### --- inadvertance, want of sufficient consideration, 

### -- oversight or otherwise, where they affectthe sub

### -- stantialrighm- arejudicial errors and cannot be coFected or removed Q 

### summary 

## - action of 

### the courtwhichmade them 

# . 

# .." (Ci

### -- -- tations omitted.) 

### (Emphasis added.) 

### Since the family home, next to the doctor's medical practicewas the singlemost 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 tounderstand why respondent failed tobring the alleged "omission" to the court's attention by filing a timely motion to amend or clarify the decree, if he reallybelieved the courthad erred. The attempted change by the amended findings and decree adversely affected petitioner's substantiverights by depriving her of her interest inthe 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 errorwas correctable only by appeal which was

never taken by either of the parties. The DistrictCourt, therefore, lacked jurisdiction tomake the change effected by his entry of the amended findings and decree. There is

### no question that the DistrictCourt's original findings and decree aredeficient. They failtomake a determination of the parties' total networth. They fail todetermine the value of respondent's medical practice, the relative financial contribution thereto by each party and to apportion that asset. They fail todetermine 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 arebound by 

### it, unless an appropriate proceeding 

### ismaintained 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 toremedy, they must be 

### set aside and the original findings and decree reinstated. Unfortunately, this result leaves open the possibility of further litigation arising outof the shortcomings in the findings and decree observed above. However, 

### it 

### is a circumstance forwhich the parties and the court 

### are allresponsible, each having had the opportunity to timely clarify the original findings and decree following their entry. The cause 

### isremanded to the District Court.

We concur: 

# / 

# I

Justices