MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 2 ME 45 Docket: Ken

- 21

- 370 Submitted

On	B riefs : June	22,	2022 Decided: August	11,	2022 Panel: MEAD, JABAR , HORTON , and LAWRENCE , JJ.
JULIE	BEEDLE

v. DUANE BEEDLE

LAWRENCE ,	J. [¶1] Duane	 Beedle	 appeals	 from	 a	 judgment	 of	 the	 District	 Court (Waterville, Gilbert,	 J. ) granting	 Julie	 Beedle’s motion to	 amend	 a
2019 stipulated	 order	 by inserting a vehicle or	 serial identification	 number

next	 to each alleged	 corresponding item	 of personal	 property	 listed	 in	 that stipulated	order. Duane	argues	that	Julie’s	motion	is	untimely.		We	agree	and therefore vacate the	order	and	remand	for	dismissal	of	the	motion.
I.		BACKGROUND [¶ 2 ] The following facts	are taken from	the	procedural	record. See , e.g. , Philbrook	 v.	 Theriault ,	 2008	 ME	 152,	 ¶	 2,	 957	 A.2d	 74

. The	 parties	 were divorced	 by	 judgment	 entered	 by	 the	 court	 ( Stanfill,	 J. )	 in	 January	 2013. Between	 2014	 and	 2018,	 they	 filed various post
- judgment	 motions

. On2 January 3,	2019, having	reached	an	agreement	the	preceding	day,	the	parties presented	 their	 stipulations	 to	 the	 court. W ithout a hearing	 on	 the post
- judgment motions	 pending	 at	 that	 time, the	 court	 ( Montgomery,	 J. ) executed a	stipulated	order on	that	same	day. The	stipulated	order	required that	Duane	pay	$50,000	to	Julie	over	a	period	of	two	years.		Specifically,	$25,000 was	to	be	paid	to	Julie	immediately,	with	the	remaining	$25,000	to	be	paid	to Julie	in	two	later installments.		To	secure	payment	of	the	remaining	$25,000, the	 stipulated	 order	 further	 required	 that	 Duane	 grant	 to	 Julie	 a	 security interest	in	certain	items	of	personal	property,	which	were	listed	by	name	or descriptio n	 but were not accompanied	 by an i dentifying	 number,	 such	 as	 a vehicle or	serial identification	number. 1 [¶ 3 ] After	Julie	filed	motions	for	contempt,	to	enforce,	and	for	a	turnover order ,	 14	 M.R.S.	 §	 3131	 (2022), the	 court	 entered	 an	 order	 for	 a	 writ	 of possession,	 dated	 August	 27,	 2020,	 commanding	 the	 sheriff	 to	 provide	 Julie with	 possession	 of	 the	 personal	 property	listed	 as	 security	 for	 the	 debt	 still owed	by	Duane	pursuant	to	the	stipulated	order. When	executi on	of	the	writ	of possession	was	unsuccessful, Julie	 filed	another	motion	 for	contempt against

1 The	items	of	personal	property	in	which	Duane	was	required	to	grant	Julie	a	security	interest were	listed in	the	stipulated	order as	follows:	“Lund	Fishing	Boat	and	Trailer;	1977	Corvette	Stingray; Large	covered	trailer;	Harley	Davidson	Electra	Glide;	Ho nda	ATV;	Snowmobiles;	and	Snap

- on	Tools.”3 Duane

. T he court	( Rushlau,	J. )	entered	an	order,	dated	July	16,	2021,	d ismissing Julie’s motion	 for	 contempt	 without	 prejudice because	 she	 failed	 to	 provide
pro per	notice	to	Duane. In	the	July	16 order, t he	court observed th at	the	list	of personal	property	items	in	the	2019 stipulated	order	lacked unique	identifying numbers,	 and	 it noted that	 Julie	 had	 never	 moved	 to	 amend	 that	 order	 to include	such unique	identifying	information

. 2 [¶ 4 ] On	September	20,	2021,	Julie ,	through	her	counsel, filed	a	motion	to amend	the 2019 stipulated	order .		She	c it ed no	rule	of	court	or	other	authority for	 her	 request,	 but	 nonetheless ask ed the	 court	 to	 add	 veh icle or	 serial identification	numbers	next	to	the	corresponding	names	or	descriptions	of the personal	property items in which	she	was	to	be	granted	a	security	interest. 3 In support	of	her	motion,	Julie	attached	what	appears	to	be	a	security	agreement, signed	by	Duane	and	dated	January	2,	2019,	granting	Julie	a	security	interest	in the	 personal	 property	 specified	in	 the January	 3,	 2019 , stipulated	 order	and listing	the	ite ms’	corresponding	serial	or	vehicle	identification	numbers.		Julie also	attached	what	appears	 to	 be	a	UCC	 financing	 statement	 on	 file	with	 the

2 Because	the	order	on	Julie’s	contempt	motion	is	not	before	us	and	the	court	did	not reach	the merits	of that	motion,	we	express	no	view	on	whether	the	stipulated	order	would	need	to	be	amended for	Julie	to	pursu e	a	contempt	motion.

3 Julie’s	motion	to	amend	did	not,	however, seek	the	addition	of identification	numbers	for	the S nowmobiles	or S nap - on T ools

.4 Secretary	of	State,	which	provides	for	Julie’s	security	interest	in	the	items	listed in	the	stipulated	order	and , like	the	security	agreement, lists	the	corresponding unique	identification number	for	each	item. [¶ 5 ] Duane	filed	an	objection ,	dated	October	4,	2021, to	Julie’s	motion	to amend in	which	he	represented	that	he	received	Julie’s	motion	via	regular	mail

o n	the	same	day that it	had	been	filed	with	the	court. In	his	objection,	Duane argued	 only	 that	 the	 motion	 was	 untimely,	 contending	 that	 it	 was	 untimely regardless	 of	 whether	 it	 was	 treated	 as	 a	 motion	 to	 alter	 or	 amend	 the judgment, see M.R.	Civ.	P.	59(e) ,	or	as	a	motion	for	relief	from	judgment	based on	 mistake,	 inadvertence,	 excusable	 neglect,	 newly	 discovered	 evidence,	 or fraud, see M.R.	Civ.	P.	60(b)

. [¶ 6 ] Construing Julie’s	motion	as “a	motion	to	correct	an	ambiguity	or clerical	error” in	the	stipulated	order, see M.R.	Civ.	P.	60(a) , the	court	( Gilbert, J. ) granted	 Julie’s	 motion without	 holding	 a	 hearing

. B y judgment dated October 22,	 2021, the	 court sought	 to	 “clarify”	 an	 “ambiguity ”	 in	 the	 2019 stipulated	order	and directed that the	list	of	personal	property	in that order	be corrected to	 include	 the	 corresponding	 vehicle	 or	 other	 serial	 identification numbers.		Duane	timely	appealed	the	judgment. See M.R.	App.	P.	2B (c)(1)

.5 II.		DISCUSSION [¶ 7 ] Duane	 argues tha t	 the	 court	 erred	 in	 granting	 Julie’s	 motion pursuant	 to	 Rule	 60(a)	 becau se	 amending	 the	 stipulated	 order	 to	 include identifying	 numbers	 associated	 with	 the	 items	 of	 personal	 property	 w as	 a substantive	change	rather	than the mere correction	of	a	clerical	error

. 4 He also contends that	Julie’s	post

- judgment	motion	was	untimely filed pursuant	to M.R.
Civ.	P. 52(b),	59(e),	and	60(b). [¶ 8 ] “We	 review	 an	 order	 on	 a	 post

- d i vorce	 motion	 for	 abuse	 of discretion	 or	 error	 of	 law,	 but	 review	 the	 interpretation	 of	 Rules	 of	 Civil Procedure de	 novo .” 5 Bridges	 v.	 Caouette ,	 2020	 ME	 50,	 ¶	 10,	 230 A.3d 1 (quotation	marks and	citation omitted). Maine	Rule	of	Civil	Procedure	60(a) provides, “ C lerical	mistakes	in	judgments,	orders	or	other	parts	of	the	record and	errors	therein	arising	from oversight	or	omission	may	be	corrected	by	the

4 We	address	this	argument	despite	Duane’s	failure	to	raise	it	in	his	objection	to	Julie’s	motion	to amend because Duane	could	not	have	known	that	the	court	would	construe	Julie’s	motion to	amend as a	motion to	correct	a	clerical	mistake

. We	do	not,	however ,	address Duane’s	argument	that	he	was never formally	served	with	Julie’s	motion	pursuant	to M.R.	Civ.	P.	103 ,	which	also was	not raise d in Duane’s objection	to	Julie’s	motion and is therefore	waived

. See Moores	v.	Doyle ,	2003	ME	105,	¶	7, 829	A.2d	260 (“ Unless	the	defense	of	insufficient	service	of	process	is	raised	in	a	responsive	pleading or	 by	 motion,	 it	 is	 not	 preserved	 for	 appellate	 review.”); M.R.	 Civ.	 P. 106(b)

. In	 fact,	 Duane acknowledged	receipt	of	Julie’s	motion	in	his	objection.

5 N either	p arty	asserts,	nor	do	we	discern,	that	the	court	“utilized	its	inherent	authority	to	clarify an	ambiguous	provision”	in	the	stipulated	order. Thompson	v.	Rothman ,	2002	ME	39,	¶	1,	791	A.2d 921

.6 court	at	any	 time	of	its	own	initiative	or	on	 the	motion	of	any	party.”		Relief under	Rule 60(a)	is	limited	to	clerical	mistakes and	is not	available	to	correct substantive	errors. Bean	v.	Cummings ,	2008	ME	18 ,	¶ 1 8 ,	939	A.2d	676 ; Bridges , 2020	ME	50,	¶	12,	230	A.3d	1. We	have	interpreted	that limitation	to	mean	that “Rule 60(a)	may	be	invoked	only	when	 the clerical	error	is	obvious	 from	 the face	of	the	judgment.” Bridges ,	2020	ME	50,	¶ ¶ 12

- 13 ,	230	A.3d	1 (holding	that the	 court	 could	 not,	 pursuant	 to	 Rule	 60(a),	 correct	 a	 “patent	 ambiguity” resulting	from	two	conflicting	terms in	a	divorce	judgment when	th e	error	was not	“obvious	 from	 the	 four	corners	of	 the	document”) ; see Waning	v.	Dep’t	of Transp. ,	2008	ME	95,	¶¶ 3, 5,	11,	953	A.2d	365 ( explaining that, when	an	order improperly	identified	property	as	being	located	in	Gray,	the	amendment	of	that order , co rrect ing the	 description	 of	 the	 property	 to	 its	 actual	 location	 in
New Gloucester , was	a	substantive	change)

. [¶ 9 ] Here,	the	absence	of	vehicle	or	other	serial	identification	numbers from	 the	 stipulated	 order	 does	 not	 appear from	 the	 four	 corners	 of	 that stipulated	order	to	be	an	obvious	clerical	error

. 6 It	is	telling	that	t he identifying

6 Because the correction	of	a	clerical	error	under	Rule	60(a) requires	that	the	error	be	discernible from	the	four	corners	of	the	judgment	that	a	party	seeks	to	amend,	the	court’s comment	i n	its	July	16, 2021,	order

— observing	in	passing that	the	stipulated	order	lacked identifying	numbers

— does	not somehow trans mute the	absence	of	such	numbers in to a	clerical	mistake in	the inarguably separate and	distinct stipulated	order issued over two	and	one

- half years before the	comment

.7 numbers	had	to	be	provided to	the	court	in	the	form	of	the	exhibits	attached	to Julie’s	motion	in	order	for	it	to	correct	the	alleged	clerical	error. Th e	fact	that such extrinsic	evidence	was	necessary	for	the	court’s	Rule	60(a) determination underscores that the attempt	 to “corre ct” the stipulated order	 to	include	 the identifying	 numbers constituted a	 substantive	 change	 rather	 than the correction	of a	clerical	omission

. Moreover ,	the absence	of	a	hear ing	left	the trial court,	and	now us ,	without the	capacity	to	review	the admissibility	of	th ose exhibits

. 7 See Town	 of	 Gorham	 v.	 Duchaine ,	 2020	 ME	 7,	 ¶ 11,	 224	 A.3d	 241 ( “[ S]imply	attaching	documents	to	a	motion	is	not	the	equivalent	of	properly introducing	or	admitting	them	as	evidence.		Documents	attached	to	motions	are

not part	 of	 the	 record	 and	 therefore	 cannot	 be	 considered	 evidence	 in	 the record	on	appeal.”); Deutsche	Bank	Nat’l	Tr

. Co.	v.	Wilk ,	2013	ME	79,	¶	14,	76 A.3d	363 (“[A]	 fact

- finder	may	not	consider	 facts	not	properly	in	evidence	or made	 part	 of	 the	 record.”). To	 the	 extent	 that	 there	 was	 an	 oversight	 or

7 Similarly,	the absence	of	a hearing	on	J anuary	3,	2019,	when	the	stipulated	order	was	executed, makes	it	unclear	whether	the	identifying	numbers	were even provided	to	the	court. If	neither	party proffer ed this information,	 the	lack	of	identifying	numbers	in	 the	stipulated	order	coul d	not	have been	the	result	of	the	court’s	oversight	or	omission.8 omission	of	the	type	contemplated	by	Rule 60(a),	there	must	be	evidence in	the record to	show	that inadvertent	e rror	by	the	court

. [¶1 0 ] Because	 amending	 the	 stipulated	 order	 to	 include	 vehicle and serial identification	numbers	constituted	a	substantive	change, Julie’s	motion to	amend the	2019	stipulated	order should	have	been	considered	pursuant	to Rule	59(e)	as	a motion	to	alter	or	amend the judgment and then dismissed	as untimely

. See M.R.	Civ.	P.	59(e) (requiring	that	motions	to	alter	or	amend	the judgment	be	filed	not	later	than	14	days	after	entry	of	the	judgment). 8 The	entry	is: Judgment vacated	and	remanded	for	dismissal

.

Stephen	C.	Smith,	Esq.,	Steve	Smith	Trial	Lawyers,	Augusta,	for appellant	Duane Beedle Brenden	Smith,	Esq.,	Law	Office	of	Brenden	Smith,	Bowdoinham,	for	appellee Julie	Beedle

Waterville	District	Court	docket	number	FM

- 2010

- 415 F OR C LERK R EFERENCE O NLY

8 Julie	filed	her	motion	to	amend	the	stipulated	ord er 97 7 days	after the	January	17,	2019 , filing deadline established pursuant	to	Rule	59(e)	(i.e., fourteen	days	after	the	entry	of	the	sti pulated	order by	the	court	on	January	3,	2019 )

.