Roth v. Hoffer

2006 ND 119, 715 N.W.2d 149, 2006 N.D. LEXIS 121, 2006 WL 1493808
CourtNorth Dakota Supreme Court
DecidedJune 1, 2006
Docket20050328
StatusPublished
Cited by8 cases

This text of 2006 ND 119 (Roth v. Hoffer) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roth v. Hoffer, 2006 ND 119, 715 N.W.2d 149, 2006 N.D. LEXIS 121, 2006 WL 1493808 (N.D. 2006).

Opinion

SANDSTROM, Justice.

[¶ 1] Todd A. Roth appeals from an amended judgment in his divorce action against Lynette Hoffer and from an order denying his post-judgment motion. We affirm, concluding the district court did not err in granting Hoffer’s motion under N.D.R.Civ.P. 60(a) to correct a clerical mistake in the initial judgment regarding the distribution of the proceeds of Roth’s 401 (k) plan.

I

[¶ 2] In Both v. Hoffer, 2004 ND 72, ¶ 3, 688 N.W.2d 402, cert. denied, 543 U.S. 936, 125 S.Ct. 328, 160 L.Ed.2d 241 (2004), we summarily affirmed Roth’s appeal from a July 2003 divorce judgment. The judgment identified Roth’s 401(k) plan with his employer, North American Coal, and stated the plan has “a gross value of $53,620.91, but against which [Roth] took a loan of $11,233.77 leaving a net value of $42,387.14. The Court awards [Hoffer] 65% of the net value ($27,551.64).” A Qualified Domestic Relations Order (“QDRO”) authorized the administrator of Roth’s 401(k) plan to hold $27,551.64 for Hoffer.

[¶ 3] In October 2004, Hoffer moved under N.D.R.Civ.P. 60(a) to amend the judgment, claiming there was a clerical mistake because the judgment did not accurately reflect the amount of money she was to receive from Roth’s 401(k) plan. Hoffer claimed Roth’s employer had issued Roth a check out of a total fund balance of $65,657.26, and Roth, then a prison inmate, endorsed the check to Mitch Schlaht. Hoffer claimed she was entitled to 65 percent of the total fund balance of Roth’s 401 (k) plan.

[¶ 4] After a hearing, the district court granted Hoffer’s motion “to the extent that she seeks supplementary court orders to assure that the 401(k) plan proceeds that were awarded in the divorce judgment be made available to her. If necessary, the Court will execute a new QDRO document, or issue other orders to assure that the value distributable” to Hoffer be made available for her benefit. An amended judgment was entered which awarded Hof-fer “65% of the net value of $42,027.22,” and an amended QDRO was entered which required Roth’s employer to pay Hoffer “$42,827.22 (65% of the total account balance of $65,657.26).” The amended judgment imposed a constructive trust and monetary judgment against Roth and Schlaht in the amount of $15,265.58. The court subsequently denied Roth’s post-judgment motion under N.D.R.Civ.P. 59(b)(6) and 60(b)(iv), concluding the amount awarded under the amended judgment and QDRO had been satisfied and Roth’s motion was moot.

*151 [¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 6] Roth’s arguments can be summarized in two main claims: (1) the district court lacked jurisdiction under N.D.R.Civ.P. 60(a) to amend the judgment because there was not a clerical mistake, and (2) the amended judgment is void and his post-judgment motion was not moot because Roth’s payment and satisfaction of the amended judgment was not voluntary.

[¶7] Rule 60(a), N.D.R.Civ.P., authorizes a district court to correct clerical mistakes in a judgment and provides “[cjlerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversights or omission may be corrected by the court: (1) at any time on its own initiative; or (2) on the motion of any party.”

[¶ 8] In Fargo Glass and Paint Co. v. Randall, 2004 ND 4, ¶¶5-6, 673 N.W.2d 261 (quoting First Western Bank v. Wickman, 513 N.W.2d 62, 64 (N.D.1994)), we outlined our general rules for correcting clerical mistakes under N.D.R.Civ.P. 60(a):

This Court has clearly held that Rule 60(a) is not a substitute for an appeal on the merits.
“Generally, Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what originally was pronounced. We believe it clear that Rule 60(a) was not designed to affect substantive portions of a judgment or order, nor to act as a substitute for appeal. The rule is appropriately utilized only for ‘the correction of irregularities which becloud but do not impugn [the judgment].’ ” United States v. Stuart, 392 F.2d 60, 62 (3d Cir.1968). The problem is essentially one of characterization. Kelley v. Bank Building and Equipment Corporation of America, 453 F.2d 774, 778 (10th Cir.1972). It must be determined “whether a substantive change or amendment was made or whether the amended conclusions and judgment were in the nature of corrections.” Kelley, supra.
“A court may correct, pursuant to Rule 60(a), errors created by oversight or omission that cause the judgment to fail to reflect what was intended at the time of trial. However, Rule 60(a) is not a vehicle for relitigat-ing matters that have already been litigated and decided, nor to change what has been deliberately done.” (Citations, footnote omitted.)
Gruebele v. Gruebele, 338 N.W.2d 805, 811-12 (N.D.1983);. see also Volk v. Volk, 435 N.W.2d 690, 692 (N.D.1989).

[¶ 9] Rule 60, N.D.R.Civ.P., was adopted from F.R.Civ.P. 60, and in construing our rule, we may consider federal case law interpreting F.R.Civ.P. 60. Gruebele, 338 N.W.2d at 811 n. 5. Under the federal rule, transcription errors and mathematical errors are typical clerical mistakes, but the federal rule authorizes a district court to correct ambiguities and errors of omission or oversight to clarify and reflect the court’s intent when the initial judgment was entered. 12 J. Moore, Moore’s Federal Practice § 60.11[1] and [2] (3rd ed.2006). In Blanton v. Anzalone, 813 F.2d 1574, 1577 n. 2 (9th Cir.1987) (emphasis in original), the Ninth Circuit Court of Appeals aptly explained the difference between clerical mistakes and substantive mistakes:

*152 The basic distinction between “clerical mistakes” and mistakes that cannot be corrected pursuant to Rule 60(a) is that the former consist of “blunders in execution” whereas the latter consist of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because on second thought it has decided to exercise its discretion in a manner different from the way it was exercised in the original determination. See United States v. Griffin, 782 F.2d 1393, 1397 (7th Cir.1986).

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Cite This Page — Counsel Stack

Bluebook (online)
2006 ND 119, 715 N.W.2d 149, 2006 N.D. LEXIS 121, 2006 WL 1493808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roth-v-hoffer-nd-2006.