Gagnon v. Fontaine

• Decision Date: 28 April 1994
• Docket Number: No. 93-P-508,93-P-508
• Citation: 631 N.E.2d 1029,36 Mass.App.Ct. 393
• Parties: Judith GAGNON v. Robert FONTAINE.
• Court: Appeals Court of Massachusetts

Page 1029

631 N.E.2d 1029

36 Mass.App.Ct. 393

Judith GAGNON v. Robert FONTAINE.

No. 93-P-508.

Appeals Court of Massachusetts,

Hampden.

Argued Nov. 10, 1993.

Decided April 28, 1994.

Gerald B. Berg, Springfield, for Judith Gagnon.

George W. Leary, Springfield, for Robert Fontaine.

Before WARNER, C.J., and PERRETTA and JACOBS, JJ.

WARNER, Chief Justice.

In her 1982 complaint for divorce against Robert Fontaine (Robert), Judith Gagnon (then Fontaine) requested as relief, among other things, an order for the conveyance of the real estate "located at 265 Ames Rd ... standing in the name of Judith Fontaine and Robert P. Fontaine as recorded with Hampden County Registry of Deeds, Bk. 3829, Pg. 508." ¹ The judgment of divorce nisi entered on January 10, 1984 ordered Robert to

"convey and transfer to said Plaintiff all of his right and interest into (sic) the real estate together with the contents thereof located at 265 Ames Rd., Hampden, in the County of Hampden, as more fully described in the Hampden County Registry of Deeds in Book 3829, Page 508."

The judge (the first judge) made no findings of fact. Under sanction from a pretrial order, Robert presented no evidence at the divorce hearing preceding the judgment, and his postjudgment motion for a new trial pursuant to Mass.R.Dom.Rel.P. 59 (1975) was denied ("dismissed") by a Probate Court judge (the second judge).

This appeal arises from the denial of a February 14, 1992, motion filed by Judith to amend the judgment of divorce nisi (with no citation to any specific rule of the Massachusetts Rules of Domestic Relations Procedure; see DeLuca v. DeLuca, 26 Mass.App. 191, 192 n. 2, 525 N.E.2d 435 [1988] ) "to include within it" an order to convey an adjoining parcel of real estate at the former marital home "described in the Hampden County Registry of Deeds in Book 4548, Page 114." ² The second judge denied the motion on February 14, 1992. We review the avenues open to correct mistakes in judgments and then consider whether any were open in this case. See Dalessio v. Dalessio, 409 Mass. 821, 832-833, 570 N.E.2d 139 (1991).

We turn to consideration of the Rules of Domestic Relations Procedure, relying on construction of the corresponding Massachusetts Rules of Civil Procedure and Federal Rules of Civil Procedure for guidance, to determine whether there is any provision for the kind of relief Judith sought. See Chavoor v. Lewis, 383 Mass. 801, 806 n. 5, 422 N.E.2d 1353 (1981) ("As a general principle, we apply to our rules of civil procedure the construction given to cognate Federal rules").

1. Rules applicable to efforts to correct mistakes in judgments.

Several rules of Domestic Relations Procedure allow a party to move for the correction of an error in an order or judgment.

(a) Rules 52(b) and 59(e): Within ten days of the entry of a judgment, a party may move for amendment or alteration of a judgment, to seek additional findings of fact or the correction of errors of law. These rules do not specify to whom any alleged error must be attributed and may apply to errors of the judge or the parties.

(b) Rule 60(b)(1): Within one year of the entry of a judgment, a party may move for relief from that judgment due to "mistake, inadvertence, surprise or excusable neglect." Rule 60(b)(1) applies to mistakes of the parties as well as to those of the court. DeLuca v. DeLuca, supra at 193 n. 3, 525 N.E.2d 435. During the year after judgment is entered, there may be some overlap of the provisions of rules 60(a) and 60(b)(1). See id. at 193-194, 525 N.E.2d 435.

(c) Rule 60(a): At any time after the entry of judgment, "clerical mistakes" in the judgment, in the order or other parts of the record "and errors therein arising from oversight or omission" may be corrected by the court, sua sponte, or on motion of a party. ³ The Reporters' Notes to Mass.R.Civ.P. 60 state that "[i]n effect [r]ule 60(a) merely seeks to insure that the record of judgment reflects what actually took place." Mass.Ann.Laws, Rules of Civil Procedure at 585 (Law Co-op.1982). Thus, unlike rules 52(b), 59(e) and 60(b)(1), rule 60(a) is limited to rectifying a judgment to indicate properly what relief, if any, a judge intended it to effect. As will be seen, the relevant inquiry in this case under rule 60(a) is not what Judith intended (indeed, her intent is not supported by any contemporaneous record of the divorce trial) but what the first judge intended to include in the judgment of divorce nisi. Here, the judgment afforded precisely the relief sought by Judith.

2. Applicability of Rule 60(a).

The only rule possibly applicable to Judith's motion is rule 60(a), which places no time limit on motions to correct "clerical mistakes in judgments, orders or the parts of the record and errors therein arising from oversight or omission." Mass.R.Dom.Rel.P. 60(a) (1975). The critical question, then, is whether the judgment of divorce nisi contains a "clerical mistake" or an "error arising from oversight or omission" meriting correction pursuant to rule 60(a).

There are different approaches to analyzing rule 60(a) issues, each representing a slightly different emphasis: (1) determining whether the judgment reflects the intent of the court at the time it was entered; and (2) determining whether the relief requested is essentially "clerical" in nature rather than "substantive" in nature. The two analyses are interrelated, not discrete. See DeLuca v. DeLuca, 26 Mass.App. at 194, 525 N.E.2d 435; Dalessio v. Dalessio, 409 Mass. at 832-833 n. 6, 570 N.E.2d 139.

As the Montana Supreme Court has aptly said in a context similar to that in this case: ⁴

"The rule is well settled in this state that a trial court has the power at any time to amend any judgment it has rendered, to the end that such judgment will correctly express what the court actually decided, where error has crept into the judgment by reason of misprision on the part of the clerk, the court, or the attorneys, appearing on the face of the record. (Keene v. Welsh, 8 Mont. 305, 21 Pac. 25 [ (1889) ]; Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950 [ (1908) ]; State ex rel. McHatton v. District Court, 55 Mont. 324, 176 Pac. 608 [ (1918) ]; St. Onge v. Blakely, ante [76 Mont.] p. 1, 245 Pac. 532 [ (1926) ] ). Under this rule a court undoubtedly has authority to correct a misdescription of lands contained in the judgment or decree, where the pleadings and proof correctly described the land in question. (State Bank v. Schultze, 63 Mont. 410, 209 Pac. 599 [ (1922) ] ).

"It is, however, equally well settled that where the judgment correctly expressed the decision of the court, no matter how erroneous that decision may have been and no matter how proper the attempted amendment may be, after the judgment has been rendered and entered, the trial court cannot modify the judgment so as to change the rights thereby fixed and determined. (Whitbeck v. Montana Central Ry. Co., 21 Mont. 102, 52 Pac. 1098 [ (1898) ]; Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123 [ (1903) ]; Lee v. Laughery, 55 Mont. 238, 175 Pac. 873 [ (1918) ] ). Such error, being a judicial error, can only be corrected on motion for a new trial or on appeal to this court. (State ex rel. Smith v. District Court, 55 Mont. 602, 179 Pac. 831 [ (1919) ]; State v. Fowler, 59 Mont. 346 196 Pac. 992, 197 Pac. 847 [ (1921) ]; Lee v. Laughery, above).

"Under this rule, an erroneous description of land appearing in the judgment or decree, but which is in accordance with the description given in the complaint and running throughout the proceedings, is a judicial error and cannot be corrected by the trial court on motion as for the correction of a clerical error; the decree is not, under such circumstances, erroneous, but is that which the court intended and did actually render. (Kemp v. Lyon, 76 Ala. 212; Van Ness v. Crow, (Tex.Civ.App.), 215 S.W. 572 [ (1919) ]; Ross v. Ross, 83 Mo. 100 [ (1884) ]; Bishop v. Seal, 92 Mo.App. 167 [ (1902) ]; Kurtz v. St. Paul & D.R. Co., 65 Minn. 60, 67 N.W. 808 [ (1896) ] )."

Oregon Mort. Co. v. Kunneke, 76 Mont. 117, 123-124, 245 P. 539 (1926).

"If the flaw lies in the translation of the original meaning to the judgment, then [r]ule 60(a) allows a correction; if the judgment captures the original meaning but is infected by error, then the parties must seek another source of authority to correct the mistake." See United States v. Griffin, 782 F.2d 1393, 1396-1397 (7th Cir.1986). ⁵ "The [r]ule does not permit alterations of factual and legal decisions deliberately made," Id. at 1396, or correction of "errors of substantive judgment," Jones v. Anderson-Tully Co., 722 F.2d 211, 212 (5th Cir.1984). In this case, rule 60(a) would allow only the enforcement of the first judge's intent in entering the divorce judgment, not a change in its substantive provisions.

On the record presented in this case, the only fair indication of the judge's intent is the wording of the judgment. Contrast DeLuca v. DeLuca, 26 Mass.App. at 193, 194, 525 N.E.2d 435 (judge who entered original judgment found his own "inadvertence" to have caused language of judgment to reflect inaccurately his "contemporaneous intention" in framing the judgment). Tracking the language in Judith's complaint for divorce, the first judge ordered Robert to convey real estate located at 265 Ames Rd., Hampden, "as more fully described in the Hampden County Registry of Deeds in Book 3829, Page 508" (emphasis supplied). The specification of the land parcel as "265 Ames Rd." is broad enough to encompass both lots now described as comprising the Fontaines' former marital home. Nevertheless, the clause "as more fully described," along with the book and page citation to the Hampden County Registry of Deeds, makes clear the first judge's intent to incorporate into his judgment only the description of the parcel of land on that book and page. Compare In re Village by the Sea, Inc., 98 B.R. 93 (Bankr.S.D.Fla.1989) (rule 60[...