Marriage of McFarland

No. 96-527
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1997
IN RE THE MARRIAGE OF
THEODOREC. MCFARLAND,
Petitioner and Respondent,
and
MARLA R. MCFARLAND, n/k/a MARLA R. WARD,
Respondent and Appellant.
MARLA R. MCFARLAND, n/k/a MARLA R. WARD,
Plaintiff and Appellant.
v.
THEODOREc. MCFARLANDand
CLINTON L. MCFARLAND,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randy S. Laedeke; Laedeke Law Office, Billings,
Montana
For Respondents:
James A. Patten; West, Patten, Bekkedahl &
Green, Billings, Montana
Submitted on Briefs: December 5, 1996
Decided: February 18, 1997
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1995 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
This is an appeal by Marla R. Ward, formerly known as Marla R.
McFarland (Marla), from orders entered on June 4, 1996, by the
Thirteenth Judicial District Court, Yellowstone County, determining
that her postjudgment motion had been deemed denied by operation of
law, and granting the motion of Theodore C. McFarland (Theodore)
compelling her to enter a partial satisfaction of judgment. We
affirm the court's order on Marla's motion and, on that basis, also
affirm the court's order granting Theodore's motion.
BACKGROUND
This case arises out of a proceeding for dissolution of
marriage instituted by Theodore, during the course of which Marla
asserted an action as plaintiff against Theodore and his father,
Clinton L. McFarland (collectively, McFarlands) The District
Court filed its findings, conclusions and order in those underlying
proceedings on November 13, 1995. In pertinent part, and in
addition to dissolving the parties' marriage, the court distributed
therein Theodore and Marla's marital assets, with the exception of
the Lazy Heart Nine cattle. With regard to the cattle, it found
that Theodore had 22 of the cattle at the time of the marriage,
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that Marla helped increase the number during the marriage, and that
Theodore's father held the cattle as constructive trustee for
Theodore and Marla; it further found that Marla should receive "one
half of the increase of the cattle." Insufficient evidence having
been presented at trial regarding the number of cattle, the
District Court determined that further proceedings were necessary
for purposes of determining the number of cattle, Marla's share of
the cattle and of any proceeds from the sale of cattle, and the
amount of attorney fees to be awarded to Marla.
Theodore's father filed a motion to amend or for a new trial,
which the court denied, and further proceedings were held relating
to the cattle. On January 19, 1996, the District Court filed an
Order and Memorandum containing its findings with regard to the
total number of cattle and the number to which Marla was entitled
as "one-half of the increase in the cattle during the marriage . .
. I, It also found that Marla was entitled to judgment in the
amount of $2,678.71 representing her marital share of livestock
sold before the livestock inventory was taken, and $10,000 for
reasonable attorney fees. Judgment was entered thereon on January
31, 1996.
Thereafter, the McFarlands moved for relief from the judgment
pursuant to Rule 60(b) (61, M.R.Civ.P. Marla responded, a hearing
was held, and the District Court denied the McFarlands' motion on
March 4, 1996.
On March 27, 1996, Marla filed a motion which was styled as a
Rule 60(a), M.R.Civ.P., motion to correct alleged clerical mistakes
3
in the court's order specifying the number of livestock and amount
of sale proceeds set over to her and in the judgment entered in the
case on January 31, 1996. Mar-la also moved for an order in aid of
execution. The following day, the McFarlands moved for an order
compelling Marla to enter a partial satisfaction of judgment. They
claimed to have tendered to Marla the monetary amount of the
judgment, plus interest thereon from the date of the judgment,
conditioned on her execution of a partial satisfaction of judgment,
and that she refused the tender. The parties filed memoranda in
support of their own motions and in opposition to each other's
motions.
On June 4, 1996, the District Court entered an order
concluding that the time provided for ruling on Marla's
postjudgment motion had passed and, as a result, that her motion
was deemed denied by operation of law. The court also entered an
order granting the motion to compel Marla to execute a partial
satisfaction of judgment satisfying the portion of the judgment
requiring payment to her of $12,678.71.
Marla appeals from both of the June 4, 1996, orders.
Additional facts are set forth below as necessary to our discussion
and resolution of the issues before us.
Did the District Court err in concluding that Marla's
postjudgment motion was deemed denied by operation of
law?
The District Court concluded that Marla's postjudgment motion
had been deemed denied pursuant to Rule 60(c), M.R.Civ.P., due to
its failure to rule on the motion within the time provided therein.
4
Marla's sole argument in this regard is that the Rule 60(c) time
period does not apply to her motion because the motion was brought
under Rule 60(a), M.R.Civ.P., and that the District Court committed
reversible error in concluding otherwise. We review a trial
court's conclusions of law to determine whether the interpretation
of the law is correct. In re Marriage of Barnard (1994), 264 Mont.
103, 106, 870 P.2d 91, 93.
The Montana Rules of Civil Procedure provide that, if certain
postjudgment motions are not ruled upon within 60 days, they are
deemed denied. Specifically, the 60-day deemed denial governs
motions for relief from judgment made under Rule 60(b), M.R.Civ.P.,
motions for new trial made under Rule 59(a), M.R.Civ.P., and
motions to alter or amend judgment made under Rule 59 (g) ,
M.R.Civ.P. See Rules 60(c), 59(d), and 59(g), M.R.Civ.P.
In addition to the postjudgment motions referenced above,
however, a party may file a postjudgment motion for correction of
clerical mistakes in judgments or orders pursuant to Rule 60(a),
M.R.Civ.P. By its terms, Rule 60(a), M.R.Civ.P., permits a trial
court to correct clerical mistakes and errors arising from
oversight or omission "at any time," whether on its own initiative
or on motion of a party and after notice. In addition, the Rule
60 Cc) "deemed denial" period is expressly limited to Rule 60(b)
motions and, therefore, does not apply to a Rule 60(a), M.R.Civ.P.,
motion.
This brief review of the Rules makes it clear that if Marla's
motion was a Rule 60(a), M.R.Civ.P., motion to correct clerical
5
mistakes, the District Court erred in concluding that the motion
was deemed denied by operation of law under Rule 60(c), M.R.Civ.P.
Thus, we address whether Marla's motion was a Rule 60(a),
M.R.Civ.P., motion to correct clerical mistakes.
The starting point for Marla's assertion of error is that her
motion was styled a "Rule 60(a) Motion to Correct Clerical
Mistakes." We are not bound, however, by the caption a party
places on a motion; rather, it is appropriate to examine the
substance of the motion. See Miller v. Herbert (1995), 272 Mont.
132, 135-36, 900 P.2d 273, 275. In the event of an issue over
whether a motion is a mere motion to correct, the test is whether
the requested change will merely make the record speak the truth as
to what was determined or done, or intended to be determined or
done, or whether the change will alter such action or intended
action. Matters properly supporting a mere correction must be
"apparent on the face of the record . . . ;'I they cannot effectuate
an actual change in the judgment rendered or change the rights
fixed by the judgment. Morse v. Morse (1945), 116 Mont. 504, 508,
154 P.2d 982, 983-84 (citation omitted). Examining the specific
requests for change or correction contained in Marla's postjudgment
motion, in the context of the overall case and the record before
us, we conclude that the motion was not a Rule 60(a), M.R.Civ.P.,
motion and, therefore, that it was deemed denied by operation of
law.
The first "clerical mistake" of which Marla sought correction
relates to one liability distributed to Theodore via the
6
dissolution and judgment thereon. In its November 13, 1995,
findings, conclusions and order, the District Court set forth the
parties' assets and liabilities in their entirety and distributed
those assets and liabilities. Theodore was assigned all of the
liabilities, including those at several banks and specifically
including a liability at First Citizens Bank in the amount of
$1,300; the District Court's conclusions of law incorporated the
asset and liability distribution contained in its findings. The
judgment entered thereon distributed the assets and liabilities
accordingly, by attaching Exhibit A which reflected, among other
things, the distribution of the $1,300 First Citizens Bank
liability to Theodore.
In her motion, Marla requested "correction" of the judgment
with regard to the First Citizens Bank liability to include
specific enforcement language based on alleged events occurring
after the judgment. She asserted that language requiring Theodore
to make arrangements to either pay off the loan or to assume
liability for the loan had been "inadvertently" omitted from the
judgment. However, nothing on the face of the judgment, or in
comparison to the earlier findings, conclusions and orders on which
the judgment was entered, suggests that the failure to include such
enforcement or payment provisions with regard to the First Citizens
Bank liability was in the nature of a clerical mistake or that it
was inadvertently omitted by the trial court contrary to its
intent. The judgment does not include "enforcement" provisions
with regard to any of the marital liabilities distributed to
7
Theodore and, indeed, judgments in dissolution proceedings
ordinarily do not contain such language with regard to each and
every liability distributed to a party. As a result, it is not
possible to conclude that the District Court's failure to include
such provisions with regard to the First Citizens Bank liability
was inadvertent or a mere clerical error. In addition,
particularly since the motion to "correct" in this regard was based
on alleged postjudgment matters not of record, it is clear that the
purported need for correction is not "apparent on the face of the
record . . . .'I See Morse
-I 154 P.2d at 983-84. We conclude that
this portion of Marla's motion did not seek a mere clerical
correction.
Marla's next request for a "clerical correction" was for the
inclusion of costs pursuant to 5 25-10-101, MCA, and expenses she
incurred in her third-party action to recover her share of the
cattle. She noted that she had prayed for this relief in her
third-party complaint, that she was entitled to those costs as the
prevailing party in the case, and that the District Court's
judgment stated that, except for that portion of her attorney fees
specifically awarded to her, the parties would be responsible for
their own fees and costs. Her motion asserts that the court's
inclusion of the word costs was a "mistake," since she was entitled
to costs as a matter of law.
Marla's argument that the District Court's failure to award
her costs is a "clerical mistake" is without merit. Whatever the
legal merits of Marla's underlying request for costs, it is clear
8
that the District Court rejected that request when it included in
its judgment that each party would be responsible for costs
incurred. A court's action on substantive relief requested by a
party, even if erroneous, is not a mere clerical mistake; it is an
affirmative and intended act by the court. Such an act may be
subject to revision pursuant to a Rule 59, M.R.Civ.P., motion to
alter or amend or a Rule 60(b), M.R.Civ.P., motion for relief from
judgment, but it is not subject to revision pursuant to a Rule
60 (a), M.R.Civ.P., motion to correct clerical mistakes because it
would alter the action taken or intended to be taken. See Morse,
154 P.2d at 984.
Marla's next requested "correction" of a "clerical mistake"
was her request that the exhibit to the District Court's judgment
which set forth the numbers of cattle of various types and the
distribution of those cattle to Marla and Theodore be "corrected"
to reflect the District Court's consistently stated intent that she
receive half of the increase in the herd which occurred during the
parties' marriage. Again, we disagree that Marla's request was for
a mere "correction of a clerical mistake" in the judgment rather
than a substantive change--in her favor--in the rights fixed by
that judgment.
The District Court determined that Theodore had 22 head of
cows at the time of the parties' marriage. Marla does not dispute
this determination and, indeed, she describes those cows as
pregnant cows. The District Court determined that the cattle
which constituted a marital asset were 86 cows, 12 heifers, 84
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calves and 3 herd bulls. The District Court awarded Marla 32 cows,
4 heifers, 31 calves and 1 herd bull. It is clear that the
District Court subtracted the 22 premarital cows from the 86
marital asset cows, leaving 64 cows; the court then awarded Marla
32 of those cows--precisely half the increase in the number of cows
during the parties' marriage. Likewise, the court came very close
to awarding Marla half of the heifers and half of the herd bulls
which constituted the marital asset.
Marla's primary argument is that the number of calves she was
awarded does not reflect the District Court's clear intent to award
her half of the increase in the herd during the marriage. By her
reckoning, she was entitled to precisely half the 84 calves which
were part of the marital asset, or 42 calves, and was awarded only
31 calves. Thus, she sought what she perceives to be a mere
"mathematical correction" in the judgment to reflect her 50% share
of the calves.
Given the more general "half of the increase" approach as
contrasted with the District Court's specific itemization of the
number of the various types of cattle to which Marla was found to
be entitled, we cannot say that the record before us clearly
reflects that the District Court intended its general determination
to control over its specific numerical distribution. Moreover,
Marla's math is too direct, in this instance, as it fails to take
into account her own description of the premarital cows as pregnant
cows. Since the cows were premarital and it is undisputed that the
District Court properly deducted them from the total number of cows
10
to determine that the increase during the parties' marriage was 64
cows, the same also must be true of the calves those cows were
carrying at the time of the marriage. Thus, the 22 calves being
carried by the premarital cows at the time of the marriage properly
can be deducted from the total number of calves in order to arrive
at the increase in the number of calves during the parties'
marriage. By that calculation, the 84 calves by which the herd
increased during the marriage must be reduced by the 22 premarital
calves, for an increase of 62 calves during the marriage, of which
Marla was entitled to 31 under the court's "one half of the
increase” approach. That is the precise number of calves awarded
to Marla by the District Court. On that basis, we cannot conclude
that increasing the number of calves awarded to Marla from 31 to 42
would be a mere mathematical correction to reflect the District
Court's intent in specifying that Marla should receive "half of the
increase" in the herd.
The next "clerical mistake" Marla sought to "correct" via her
postjudgment motion was the omission of certain cattle from the
judgment. She contends that the number and description of heifers
born in 1994, calves born in 1995 and herd bulls must be added to
the judgment in order to ensure that she receives her share of the
cattle which the District Court determined were marital assets.
While her argument in this regard is not particularly clear, what
Marla seeks appears to be a substantive addition to the judgment or
to the District Court's findings regarding the number of cattle
determined to be a marital asset. While such a revision may have
11
been appropriate under some other rule of civil procedure, it could
not be accomplished via a Rule 60(a), M.R.Civ.P., motion.
Marla also requested correction of a "clerical mistake" or
mere mathematical error with regard to the $2,678.71 to which the
District Court found she was entitled as her share of the proceeds
of certain cattle sold before the livestock inventory taken on
November 27, 1995, and which the court included in its judgment
dated January 31, 1996. According to Marla, the total proceeds
from the cattle sold in May and June of 1995 were $8,036.44 and,
under the court's "one half of the increase" approach, she was
entitled to a judgment of half that amount, or $4,018.22. She
sought to have the judgment "corrected" in this regard.
While Marla's math is correct, scrutiny of both the District
Court's findings after further proceedings regarding the cattle and
its judgment entered thereon establishes that her motion did not
seek a mere correction in math. The District Court's "one half of
the increase" approach clearly related to an equitable distribution
of the livestock inventoried as of November 27, 1995; the court did
not make a "one half of the increase" finding with regard to the
proceeds from the sale of cattle prior to that time. Rather, the
District Court found that Marla's marital share of the sale
proceeds was the sum certain of $2,678.71. On that basis, Marla's
request for additional sale proceeds sought a substantive change in
the findings and judgment which could not be accomplished via a
Rule 60(a), M.R.Civ.P., motion.
Marla's final request for correction of a "clerical mistake"
12
in the District Court's January 19, 1996 findings and its January
31, 1996 judgment relates to calf weight slips dated February 14,
1996, and an appraisal of the cattle herd dated February 27, 1996,
which purport to show that additional cattle should have been
included as marital assets. Since Marla's motion established the
date of these documents as after the proceedings regarding the
cattle, the court's findings and the judgment, they could not have
been matters of record at the time of the District Court's findings
or judgment which Marla's motion purportedly sought to "correct."
Marla's request in this regard is to reopen and relitigate
substantive matters already concluded by the January 31, 1996,
judgment. As such, the request was not for the correction of a
clerical mistake under Rule 60(a), M.R.Civ.P.
We conclude that Marla's postjudgment motion was not a Rule
60 (a), M.R.CiV.P., motion to correct clerical errors. Such a
motion is the only postjudgment motion not subject to deemed denial
after 60 days under either Rule 59(d), Rule 59(g), or Rule 60(c),
M.R.Civ.P. The sole argument Marla makes on appeal from the order
determining that her postjudgment motion was deemed denied is that
the District Court erred in applying the deemed denial time limits
to her motion. We hold that the District Court did not err in
concluding that Marla's motion was deemed denied by operation of
law.
Did the District Court err in granting Theodore's motion
compelling Marla to execute a partial satisfaction of
judgment?
As set forth above, Theodore sought an order compelling Marla
13
to execute a partial satisfaction of judgment. The District Court
granted Theodore's motion and Marla appeals.
Marla's argument in this regard hinges entirely on her having
succeeded in her position on the first issue in this case.
Assuming that we will have vacated the District Court's "deemed
denied" determination, she argues here that the amount of money set
forth in the District Court's judgment will be inadequate and,
therefore, that she is not required to execute a partial
satisfaction of judgment in the amount previously awarded.
We have concluded above, however, that Marla's postjudgment
motion was not a Rule 60(a), M.R.Civ.P., motion and that the
District Court did not err in determining that her motion was
deemed denied by operation of law. As a result, we need not
address this issue further and we affirm the District Court's order
granting Theodore's motion.
Affirmed. 0