MARRIAGE OF WINN

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No. 82-73 I N T E SUPREME COURT O THE STATE O MONTANA H F F 1982 Il3 RE THE MARRIAGE O F CAROLE LOUISE W I N N , P e t i t i o n e r and A p p e l l a n t , GRANT MARION W I N N , Respondent and Respondent. D i s t r i c t Court of t h e F o u r t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f M i s s o u l a Honorable John S . Henson, J u d g e p r e s i d i n g . Appeal from: Counsel o f Record: For P e t i t i o n e r : I i o l t , HcChesney & Borg; H. L. H o l t , M i s s o u l a , Montana For Respondent : D a t s o p o u l o s , MacDonald & L i n d ; Ronald B. M i s s o u l a , Montana S u b m i t t e d on b r i e f s : Decided: SEP 2 Filed: . IJ , iztuL Y w Clerk MacDonald, August 5 , 1982 September 23, 1982 Mr. Justice John C. Sheehy delivered the Opinion oE the Court. Carol Louise Winn appeals from an order of the District Court, Fourth Judicial District, Missoula County, denying her motion to amend a decree dissolving her marriage to Grant Marion Winn. We affirm the District Court, except for an amendment to correct a clerical error. The parties were married in 1960. born of the marriage. Five children were However, the dispute in this case involves only whether the District Court should have amended its decree of marital dissolution so as to revalue certain shares of stock owned by the husband at the time of the dissolution in one A. E. Brim and Company. A schedule of the events as they are found in the file following the decree of marital dissolution is essential to an understanding of this case. April -- The District Court entered findings, 14, 1980. conclusions, and decree. Part of the decree required husband to pay wife $1,320 in twelve equal installments of $120 beginning May 1, 1980 for the value of the Brim stock. April - 14, 1980. Notice of entry of decree served by mail by the clerk of the court upon both parties. 23, 1980. April -- Wife filed a motion to amend findings of fact and judgment. motion. Hearing set for May 1, 1980. May 1, 1980. - Also served notice of hearing on - Hearing continued by District Court order P for 30 days. June 2, - - 1980. Written notice that wife will call up post-decree motions for hearing on June 5, 1980. June - -5, 1980. (Court minutes.) Hearing held. Parties stipulated to changes in the findings, conclusions and judgment. (Particulars not set out.) Amended decree order prepared. January -22, 1981. Wife filed motion to revalue Brim stock from $5,322 to $26,000 and to amend the decree of marital dissolution accordingly. October - 7, 1981. The court entered findings of fact, conclusions and order, in effect denying motion to revalue stock, but amending the original decree to correct an admitted clerical error; amendment required husband to pay wife "$2,661 in 22 equal installments of $120 beginning May 1, 1980." November - 4, 1981. Service of notice of entry of order of October 7, 1981 by the clerk of the court. November - 30, 1981. Notice of appeal filed by wife and served December 1, 1981 by the clerk of the court. The initial decree of the District Court on April 14, 1980, distributed the value of the Brim stock as follows: "The Respondent [husband] shall pay unto the Petitioner one-half of the value of the Brim stock having a value in the amount of $2,640, thereby paying unto the Petitioner an amount of $1,320 payable in 12 equal payments with a payment of $120. Said payments to commence on the 1st day of May, 1980." It is agreed, in fact stipulated by the parties, that as a result of clerical error, the court incorrectly entered the total value of the Brim stock in its decree as the sum of $2,640 when the proper value of the stock, based upon the evidence at the dissolution hearing, should have been $5,322. Wife moved the court on April 23, 1980, under Rule 52 (b), M. R.Civ.P. to amend its findings of fact and judgment in several particulars, including the correct valuation of the Brim stock. The Rule 52 (b), motion was properly noticed for hearing under Rule 59(g), M.R.Civ.P. on May 1, On May 1, 1980, the district judge continued the hearing on the Rule 52(b) motion for 30 days upon written stipulation of counsel which read: "The parties further stipulate and agree that in the event of appeal by either party Winn, no issue will be made of the delay in oral argument and hearing of the Petitioner's Motions, and further stipulate the Trial Judge may rule on the Motions of the Petitioner after hearing and argument, and the continued time will not be invoked by counsel to attack the jurisdiction of the court to rule on Petitioner's Motions." The hearing occurred on June 5, 1980. No order was entered on the hearing, but the minutes of the District Court for that date reflect that: "Thereafter, the parties stipulated to various changes in the Findings of Fact, Conclusions of Law and Judgment and the Court ordered an Amended Decree to be prepared in accordance with said stipulated changes." Nothing further occurred with respect to wife's Rule 52(b) motion to amend the findings and judgment until January 22, 1981, when the wife filed a new motion, with supporting affidavit, requesting the court to "correctly value Brim stock." On February 11, 1981, the court set this motion for hearing on April 22, 1981. The minutes of the court reflect that on agreement of the court and counsel, the hearing on the new motion was continued on Monday, May 4, 1981. The hearing occurred on May 4, 1981, and after receiving briefs and further proposed findings from counsel, the court entered its findings of fact, conclusions of law and order on October 7, 1981. In effect, the findings, conclusions and order denied all of the motions of the wife for modification, except that the court entered the following provision with respect to the Brim stock: "The respondent shall [pay] unto the Petitioner one-half of the value of the Brim stock having a value in the amount of $5,322, thereby paying unto the Petitioner the amount of $2,661 in 22 equal payments of $120 per month to commence on the 1st day of May, 1980." It appears from the testimony at the May 4, 1981 hearing and from other documents in the file that husband had sold or agreed to sell all of his shares in the A. E. Brim Company for the sum of $26,000. He contended that although he had testified that the Brim stock had no value or only nominal value at the hearing before the initial decree of marital dissolution, he had no knowledge of the proposed sale of the Brim stock for $26,000 until after June 5, 1980. The District Court found that there was no concealment, fraud or misrepresentation on the part of husband in connection with the Brim stock. In its findings entered on October 7, 1981, the District Court refused to amend the judgment to grant any further amount of money from the sale of the Brim stock to the wife upon the grounds that the decree as now constituted put a disproportionate burden upon the husband for the support of the children and other responsibilities. The court also took the position that the wife's motion of January 22, 1981, to revalue the Brim stock for purposes of distribution of the marital estate was in effect a Rule 60(b),motion based upon newly discovered evidence and as such should have been filed within 60 days of the date of the entry of judgment. On this record, the wife raises several issues, including whether the judge erred in applying the 60 day provision under Rule 60(b), M.R.Civ.P., whether it erred in refusing to provide her a greater amount from the revalued Brim stock, whether the husband had an affirmative duty to inform the court and the wife of the market value before the October 7, 1981 judgment, whether her maintenance award is proper and whether the District Court erred in denying wife costs and attorney fees . However, the dispositive issue on the wife's Rule 52 motion is whether the appeal is timely. When a motion is made to amend findings or to make additional findings and to amend the judgment, in a case tried by the court without a jury, under Rule 52(b), M.R.Civ. that motion becomes subject to the time limitations of a motion for new trial. Rule 59(g), M.R.Civ.P. Therefore, once a motion is made under Rule 52(b) to amend findings and judgment, a hearing on that motion must be had within 10 days after it has been served, and a District Court may issue an order continuing the hearing thereon for not to exceed 30 days. Rule 59 (d), M.R.Civ.P. In this ca.se, the District Court, upon stipulation of the parties, continued the hearing required under Rule 59(d), for 30 days, but the hearing was actually held five days later than the extended date, on June 5, 1980. The District Court lost jurisdiction of the Rule 52(b), motion when the hearing on the motion was not held within the time limits of Rule 59 (d). Mont. , Oster v. Oster (1980), 606 P.2d 1075, 37 St.Rep. 264. Rule 59(d), further provides that once the hearing is held the "court shall rule upon and decide the motion within 15 days after the same is submitted." In this case although the court ordered that an amended judgment be prepared for its signature, such amended judgment apparently was not submitted to the court within 15 days and here the court did not "rule upon or decide the motion" within the 15 days provided in Rule 59(d). Therefore, even if the June 5 hearing date was not itself untimely under Rule 59(d), the motion of the wife to amend the findings was deemed denied at the expiration of the 15 day period, or June 20, 1980. We have held that a motion to amend the judgment if not decided within 15 days after the case has been submitted is deemed denied by operation of law and it is error for the District Court to rule on the motion after the expiration of the 15 day period. Kelly v. Sell (1978), 175 Mont. 440, 547 P.2d 1002; Cain v. Harrington (1973), 161 Mont. 401, 506 P.2d 1375. Once the Rule 52(b) motion was deemed denied, the District Court could no longer rule on it. This court has held that when the time runs out to make such an order, any subsequent order by the District Court concerning the motion is outside the court's jurisdiction. Leitheister v. Montana State Prison (1973), 161 Mont. 343, 505 P.2d 1203. In this case the time for wife's appeal from the judgment of April 14, 1980, began to run on May 3 1 , 1980, the last day under Rule 59 when her motion could have been heard by the court. She thereafter had 30 days in which to file her notice of appeal. Inc. (1979), - Mont . Britton v. Burlington Northern, , 601 P.2d 1192, 36 St-Rep. 1956. Except for the clerical error which we will discuss hereafter, the wife's appeal from those matters raised in the Rule 52 motion is not timely and this Court has no jurisdiction of the appeal because of her failure to file a notice of appeal in a timely manner. Rule 4, M.R. App.Civ.P. That the parties may have stipulated the jurisdiction of the District Court, or may have agreed not to raise the question of lack of jurisdiction, does not confer jurisdiction on t h e D i s t r i c t C o u r t t o d e c i d e a c a s e beyond t h e t i m e l i m i t a t i o n s e x p r e s s l y p r o v i d e d by Rule 59, P1.R.Civ.P. Marvel B r u t e S t e e l B u i l d i n g v. Bass (1980) , 616 P.2d 380, 37 St.Rep. 1670. - Mont .I A c o u r t which l a c k s j u r i s d i c t i o n c a n n o t a c q u i r e it by c o n s e n t of t h e p a r t i e s . Corban v . Corban ( 1 9 7 2 ) , 1 6 1 Hont. 93, 504 P.2d 985. W e now c o n s i d e r t h e w i f e ' s motion t o r e v a l u e t h e B r i m s t o c k f i l e d J a n u a r y 2 2 , 1981, and whether h e r a p p e a l from a d e n i a l of t h a t motion may be c o n s i d e r e d by u s under t h e post-judgment p r o v i s i o n s of Rules 52, 59 and 60, M.R.Civ.P. When t h e w i f e moved t o r e v a l u e t h e B r i m s t o c k no o r d e r had been e n t e r e d by t h e D i s t r i c t C o u r t r e s p e c t i n g t h e motions h e a r d on June 5, 1981. Wife t a k e s t h e p o s i t i o n t h e r e f o r e t h a t t h e motion t o r e v a l u e t h e B r i m s t o c k c a n n o t be c o n s i d e r e d a motion under Rule 60 b e c a u s e no judgment o r o r d e r had been e n t e r e d by t h e c o u r t from which s h e c o u l d a p p e a l . While h e r s t a t e m e n t of t h e r e c o r d i s c o r r e c t , h e r r i g h t t o a p p e a l from t h e o r i g i n a l d e c r e e and s u b s e q u e n t motions made by h e r t o amend t h a t d e c r e e had e x p i r e d a s w e have d e m o n s t r a t e d i n t h e foregoing discussion. The D i s t r i c t C o u r t t h e n n r o p e r l y d e c i d e d t o t r e a t h e r motion t o r e v a l u e t h e s t o c k , made J a n u a r y 22, 1981, a s a Rule 60 motion. When Montana a d o p t e d i t s Rules of C i v i l P r o c e d u r e (Chapter 13, Session Laws 1961) i t l a r g e l y f o l l o w e d t h e F e d e r a l Rules o f C i v i l P r o c e d u r e t h e n i n e f f e c t . For t h e most p a r t t h e r e f o r e , o u r Rules o f C i v i l P r o c e d u r e a r e t h e same a s t h e f e d e r a l c o u n t e r p a r t s . One of t h e d i f f e r e n c e s between t h e f e d e r a l r u l e s and t h e Montana r u l e s can b e found i n Rule 60 ( b ) ( 2 ) . Whereas under F e d e r a l Rules o f C i v i l P r o c e d u r e , Rule 6 0 ( b ) , (2), a motion f o r a new t r i a l on t h e ground of newly d i s c o v e r e d e v i d e n c e must b e made n o t l a t e r t h a n one y e a r from t h e e n t r y o f t h e judgment, u n d e r t h e Montana r u l e , s u c h a motion must be made " n o t more t h a n 60 d a y s a f t e r t h e judgment, o r d e r o r p r o c e e d i n g was e n t e r e d o r t a k e n i n a \ 2 r mtice o f e n t r y o f judgment i s r e q u i r e d c a s e ~3 Ce . . ." I n t h i s c a s e , t h e c o u r t ' s d e c r e e was e n t e r e d on A p r i l 1 4 , 1980. The m o t i o n t o r e v a l u e t h e s t o c k was n o t made u n t i l J a n u a r y 22, 1981. I f t h e motion i s c o n s i d e r e d t o b e a Rule 6 0 ( b ) ( 2 ) motion f o r a new t r i a l on t h e ground o f newly d i s c o v e r e d e v i d e n c e , t h e motion would have been t i m e l y u n d e r t h e f e d e r a l r u l e b u t n o t t i m e l y u n d e r t h e Montana rule. A motion f o r a new t r i a l u n d e r Rule 60 ( b ) ( 2 ) upcn t h e ground o f newly d i s c o v e r e d e v i d e n c e i s n o t c o m p l e t e l y f o r e c l o s e d however, by a f i l i n g a f t e r t h e t i m e l i m i t s s e t f o r t h i n t h e r u l e whether w e c o n s i d e r t h e f e d e r a l r u l e o r t h e Montana r u l e . I t i s n o t e d i n 7 Moore's F e d e r a l P r a c t i c e "To summarize r e l i e f a f f o r d e d f o r newly d i s c o v e r e d evidence. Newly d i s c o v e r e d e v i d e n c e i s a ground f o r a motion f o r a new t r i a l u n d e r R u l e 59; b u t t o b e t i m e l y , t h e motion must b e ' s e r v e d n o t l a t e r t h a n 10 d a y s a f t e r t h e e n t r y o f judgment.' I f the e v i d e n c e i s n o t , o r by due d i l i g e n c e c o u l d n o t have been d i s c o v e r e d w i t h i n t i m e t o move f o r a new t r i a l u n d e r Rule 5 9 ( b ) , t h e n a motion may b e made The l a t t e r motion d o e s n o t u n d e r Rule 60 ( b ) ( 2 ) a f f e c t t h e f i n a l i t y o f t h e judgment, and i t must be made w i t h i n a r e a s o n a b l e t i m e , and n o t l a t e r t h a n a y e a r [60 d a y s ] a f t e r t h e e n t r y o f judgment. I n a d d i t i o n t o t h i s r e l i e f , it i s a t l e a s t conc e i v a b l e t h a t r e l i e f might b e o b t a i n e d i n a n e x c e p t i o n a l s i t u a t i o n by a n i n d e p e n d e n t a c t i o n t o e n j o i n t h e e n f o r c e m e n t o f t h e judgment. " . Under f e d e r a l c a s e s , a motion f o r a new t r i a l b e c a u s e o f newly d i s c o v e r e d e v i d e n c e made more t h a n one y e a r from judgment must b e d e n i e d u n l e s s t h e s u b s t a n c e o f t h e motion b r i n g s i t u n d e r Rule 6 0 ( b ) ( 6 ) . S u n f i r e C o a l Company v. U n i t e d Mine Workers o f America (C.A.6th 1 9 6 4 ) , 335 F.2d 955, cert.den. (19651, 379 U.S. 990, 85 S.Ct. 701, 13 L.Ed.2d 610; Westerly Electronics Ccrporation v. Walter Kidde and Company (C.A. 2d 1966), 367 F.2d 269. Montana's Rule 60 (b)(6), is the same as the federal version providing that a new trial may be based on "any other reason justifying relief from the operation of the judgment." While it is true therefore that in this case the motion to revalue the stock, considered as a motion for a new trial under Rule 60(b) came too late because it was filed more than 60 days following the entry of judgment, it is also true that relief could have been granted if the substance of the motion brought it under Rule 60(b)(G), M.R.Civ.P. Wife here is foreclosed from this contention, however, because in addition to overruling her motion on the ground that it was not timely, the court also went forward with respect to the merits of the motion and determined that there was no fraud, misrepresentation or concealment; and that the husband in any event assumed a disproportionate burden of support and maintenance so as to foreclose any further relief from a re-evaluation of the Brim stock. These findings are not clearly erroneous, and in view of Rule 52(a), such findings may not be overturned by us. We therefore affirm the District Court in denying any amendment of its findings or decree relating to the later determined value of the Brim stock. Our consideration of the clerical error made by the District Court in the first instance with respect to the Brim stock brings us to another anomaly when we consider the differences between Rule 60 in the Federal Rules of Civil Procedure, and the same rule in the Nontana Rules of Civil Procedure. -10- Rule 60 ( a ) , M.R.Civ.P., provides: " C l e r i c a l m i s t a k e s . C l e r i c a l m i s t a k e s and judgments, o r d e r s o r o t h e r p a r c e l s of r e c o r d , and i n p l e a d i n g s , and e r r o r s t h e r e i n a r i s i n g from o v e r s i g h t o r omission may be c o r r e c t e d by t h e c o u r t - - -i m e of i t s own i n i t i a t i v e a t any t o r on t h e motion of any p a r t y and a f t e r such n o t i c e , i f any, a s t h e c o u r t o r d e r s . " (Emphasis added. ) Rule 60 ( a ) , M.R.Civ.P. i s i n c o n f l i c t w i t h Rule 60 ( c ) , a c l a u s e which h a s no c o u n t e r p a r t i n t h e f e d e r a l r u l e , and which p r o v i d e s as f o l l o w s : "Time f o r h e a r i n g and d e t e r m i n i n g motions. Motions p r o v i d e d by s u b d i v i s i o n s ( a ) and ( b ) s h a l l b e - h e a r d and-determined w i t h i n t h e t i m e s p r o v i d e d by Rule 59 i n t h e c a s e of motions f o r new t r i a l and amendment o f judgment." Thus t h e Montana r u l e p r o v i d e s t h a t a c l e r i c a l m i s t a k e can be c o r r e c t e d a t anytime (Rule 60 ( a ) ) and y e t Rule 60 ( c ) p r o v i d e s t h a t s u c h a motion c a n n o t be made a f t e r t h e t i m e l i m i t s p r o v i d e d by Rule 59. W e r e s o l v e t h e seeming c o n f l i c t i n o u r Rule 60 by s t a t i n g h e r e t h a t when a c l e r i c a l m i s t a k e o c c u r s i n a judgment, o r d e r o r o t h e r p a r t of a c o u r t r e c o r d , and t h e e r r o r i s a d m i t t e d , a s h e r e , o r where such e r r o r can b e c o r r e c t e d o r t h e meaning of t h e judgment, o r d e r o r o t h e r r e c o r d can be c l a r i f i e d without inequity o r prejudice t o another party, s u c h c l e r i c a l e r r o r can be c o r r e c t e d by t h e c o u r t a t a n y t i m e , e i t h e r nunc p r o t u n c o r by a new o r d e r . --Tool and Dye, I n c . (5th C i r . See Smith v. J a c k s o n 1 9 7 0 ) , 426 F.2d 5, 8. The same o b j e c t i v e c o u l d be o b t a i n e d by a l l o w i n g such c l e r i c a l e r r o r t o be c o r r e c t e d under Rule 60 ( b ) ( 6 ) (Doble v. T a l b o t t ( 1 9 7 8 ) , -- Mont .- 589 P.2d 9 9 4 , 999, 36 St.Rep. 52) b u t i t i s o u r i n t e n t t o p r e s e r v e t h e power o f t h e D i s t r i c t C o u r t under Rule 6O(a) t o c o r r e c t and m a i n t a i n a p r o p e r r e c o r d of i t s p r o c e e d i n g s even though t h e t i m e l i m i t a t i o n s under Rule 60(c) and Rule 59, P4.R.Civ.P. have expired. We therefore affirm the order of the District Court dated October 7, 1981, overruling all of plaintiff's motions, but including the correct valuation of the Brim stock as of the date of the original decree, in the sum of $5,322. However, we find another clerical error in the provisions of the October 7, 1981 order of the District Court, where the court ordered the payment by the husband to the wife an amount of "$2,661 in 22 equal payments of $120 per month to commence on the 1st day of May 1980." The statement contains a,n arithmetical error. The orders of the District Court are therefore affirmed with the exception that the order of October 7, 1981 is hereby amended with respect to the Brim stock so as to read as follows: "The respondent shall pay unto the petitioner one-half of the value of the Brim stock having a value in the amount of $5,322, thereby paying unto the petitioner an amount of $2,661 in 22 equal payments of $120 per month and a final payment of $21, such payments to commence on the first day of May 1980." Affirmed as amended. We Concur: Chief Justice /'

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