In re Marriage of Schoenthal, 04-126.

• Decision Date: 15 February 2005
• Docket Number: No. 04-126.,04-126.
• Citation: 326 Mont. 15,2005 MT 24,106 P.3d 1162
• Parties: In re the MARRIAGE OF Shane William SCHOENTHAL, Petitioner and Appellant, and Leann Jean Schoenthal, Respondent and Respondent.
• Court: Montana Supreme Court

106 P.3d 1162

2005 MT 24

326 Mont. 15

In re the MARRIAGE OF Shane William SCHOENTHAL, Petitioner and Appellant, and

Leann Jean Schoenthal, Respondent and Respondent.

No. 04-126.

Supreme Court of Montana.

Submitted on Briefs July 7, 2004.

Decided February 15, 2005.

For Appellant: Paula M. Johnson-Gilchrist, Whitefish, Montana.

For Respondent: George B. Best, Kalispell, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Shane Schoenthal ("Shane") and LeAnn Siderius Schoenthal ("LeAnn") were married July 4, 1995. The marriage produced one child. The District Court entered a decree of dissolution and distribution of the marital estate on September 19, 2003. Thereafter, Shane filed a Rule 59(g), M.R.Civ.P., motion to alter or amend judgment. The District Court denied this motion as untimely. Shane also filed a motion for relief from judgment under Rule 60, M.R.Civ.P., which was denied. Shane appeals the denial of his post-trial motions and challenges the District Court's property distribution. We affirm the District Court in part, and reverse and remand for further proceedings.

¶ 2 Shane presents twelve issues on appeal. The first five issues address the denial of Shane's Rule 59, M.R.Civ.P., motion to amend the decree because it was untimely; and the denial of his Rule 60, M.R.Civ.P., motion for relief from the decree. Then, Shane attempts to raise seven additional issues on appeal. These latter seven issues concern whether the District Court abused its discretion in distributing the marital estate. Because we affirm the District Court's conclusion that Shane's Rule 59 motion was untimely, the challenges to the District Court's property distribution were not timely appealed and are not properly before this Court. Thus, they will not be addressed. We restate and address the issues before us as follows:

¶ 3 1. Did the District Court err in concluding Shane's motion for post-trial relief under Rule 59 was untimely?

¶ 4 2. Did the District Court abuse its discretion in not granting Shane's Rule 60(a), M.R.Civ.P., motion to correct clerical mistakes?

¶ 5 3. Did the District Court abuse its discretion in not granting Shane relief under Rule 60(b)(1) or 60(b)(6), M.R.Civ.P.?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Shane and LeAnn were married on July 4, 1995. One child was born of the marriage. The parties separated in February of 2000 and a Petition for Parenting Plan and Dissolution was filed in November of 2000.

¶ 7 On September 19, 2003, the District Court entered its findings of fact and conclusions of law dissolving the marriage, determining custody, setting child support, and distributing the marital estate. Notice of entry of judgment was filed and mailed to Shane's counsel on September 26, 2003. On October 16, 2003, Shane, through counsel, filed a Rule 59, M.R.Civ.P., motion to reconsider, for a new trial, and to alter or amend judgment. LeAnn objected to the motion as untimely. On November 21, 2003, Shane replied to LeAnn's objection that his Rule 59 motion was untimely, and included in such reply a motion under Rule 60, M.R.Civ.P., for relief from the September 19, 2003, decree. On December 9, 2003, the District Court entered its order denying Shane's Rule 59 motion as untimely, and denying all relief under Rule 60, M.R.Civ.P. Shane appeals the District Court's December 9, 2003, order.

¶ 8 Additional facts are set forth below as necessary.

STANDARD OF REVIEW

¶ 9 We review discretionary trial court rulings to determine whether a district court abused its discretion. Johnson v. Hamilton, 2003 MT 199, ¶ 9, 317 Mont. 24, ¶ 9, 75 P.3d 778, ¶ 9. "This standard may be applied to rulings on post-trial motions, which `encompa[ss] the power of choice among several courses of action, each of which is considered permissible.'" Johnson, ¶ 9 (citations omitted).

DISCUSSION

ISSUE 1

¶ 10 Did the District Court err in concluding Shane's motion for post-trial relief under Rule 59 was untimely?

¶ 11 Rule 59(b) and 59(g), M.R.Civ.P., provide that motions for a new trial or to alter and amend a judgment must be served within ten days after service of the notice of entry of judgment. Concerning the time to file such motions we have held:

Rule 6(a), M.R.Civ.P., provides that when a rule calls for less than eleven days, Saturdays and Sundays are not counted. However, we held in DeTienne that Saturdays and Sundays would not be excluded from the initially added three days which are allowed for mailing and that these days would be counted prior to the counting of the prescribed period for serving a motion.

Dunkelberger v. Burlington Northern R. Co. (1994), 265 Mont. 243, 247, 876 P.2d 218, 220.

¶ 12 Notice of entry of judgment was entered and mailed on September 26, 2003. From this date Shane had ten days to file his Rule 59, M.R.Civ.P., motion. Pursuant to Rule 6(a), M.R.Civ.P., intermediate Saturdays, Sundays and holidays are excluded from the ten day computation. In this instance, Monday, October 13, 2003, was also excluded as under § 1-1-216, MCA, Columbus Day is a legal holiday. Further, because the notice of entry of judgment was mailed, Shane had an additional three days. Rule 6(e), M.R.Civ.P. Calculating the time in accordance with the above mentioned rules and DeTienne Assoc. Ltd. Partnership v. Montana Rail Link, Inc. (1993), 261 Mont. 238, 241-42, 862 P.2d 1106, 1108, Shane's motion for a new trial or to alter or amend the judgment needed to be filed on or before October 14, 2003. Here, Shane filed his Rule 59 motion on October 16, 2003.

¶ 13 Although Shane urges this Court to overrule DeTienne, and conclude that his Rule 59(g) motion was timely, we decline to do so.

¶ 14 Under Rule 5(a)(1), M.R.App.P., notice of appeal must be filed within 30 days from the date of the entry of the judgment or order appealed from. Because Shane's Rule 59, M.R.Civ.P., motion was untimely, it did not toll the time period for Shane to appeal the District Court's decree of September 19, 2003. Rule 5(a)(4), M.R.App.P. The time to file an appeal concerning the matters decided in the September 19, 2003, decree expired and the decree became final, subject only to Shane's motion for relief under the various provisions of Rule 60, M.R.Civ.P. A Rule 60, M.R.Civ.P., motion, however, may not be used as a substitute for appeal. Donovan v. Graff (1991), 248 Mont. 21, 25, 808 P.2d 491, 494; see also Lussy v. Dye (1985), 215 Mont. 91, 93, 695 P.2d 465, 466 ("The proper avenue for seeking redress from an allegedly erroneous decision, solely on the basis that it is erroneous, is the appeal process").

ISSUE 2

¶ 15 Did the District Court abuse its discretion in not granting Shane's Rule 60(a), M.R.Civ.P., motion to correct clerical mistakes?

¶ 16 Shane argues that although a Rule 59, M.R.Civ.P., motion may be untimely, under some circumstances we have allowed an untimely Rule 59 motion to be considered as a timely Rule 60, M.R.Civ.P., motion.

[A] motion that is made under Rule 59, which is not timely and hence may not properly be considered under that Rule, may, nevertheless, be considered as a motion under Rule 60 when it states grounds for relief under this latter rule.

Ring v. Hoselton (1982), 197 Mont. 414, 424, 643 P.2d 1165, 1171 (citations omitted). Shane filed a motion for relief from the September 19, 2003, decree under Rule 60(a), (b)(1), (6), M.R.Civ.P., within 60 days of the notice of entry of judgment. Thus, it was within the discretion of the District Court to grant him relief, guided by applicable precedent.

¶ 17 Shane has averred that he is entitled to relief from alleged clerical errors made by the District Court under Rule 60(a), which provides:

(a) Clerical mistakes in judgments, orders or other parts of the record, and in pleadings, and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party after such notice, if any, as the court orders.

¶ 18 Rule 60(a) is only for the purpose of correcting clerical mistakes.

Rule 60, M.R.Civ.P., permits a court to correct "clerical mistakes" in judgments, orders, pleadings, or "other parts of the record" upon motion of a party or its own initiative. Rule 60(a), M.R.Civ.P. The court may also "on motion and upon such terms as are just," and for a variety of reasons, relieve parties from judgments or final orders. Rule 60(b), M.R.Civ.P.

Rule 60(a), M.R.Civ.P., which permits the correction of clerical errors, is of occasional use to judges and lawyers but seldom has a crucial effect. The courts have not permitted it to be used to relitigate matters already decided or to change what the court has deliberately done. It simply allows the doing, at a later date, of what was originally intended but not accomplished.

In re Marriage of Cannon (1985), 215 Mont. 272, 274-75, 697 P.2d 901, 902,citing William F. Crowley, Montana Pleading and Practice Forms, 275 (1983).

¶ 19 "Rule 60(a) preserves the common-law power of District Courts to correct clerical errors in judgments at any time, since correction of such error by definition does not alter the substantive rights of the parties." Thomas v. Thomas (1980), 189 Mont. 547, 550, 617 P.2d 133, 135. Clerical mistakes and errors are those errors which misrepresent the court's original intention. Muri v. Frank, 2001 MT 29, ¶ 12, 304 Mont. 171, ¶ 12, 18 P.3d 1022, ¶ 12. It is not the purpose of Rule 60(a) to set aside a judgment actually rendered nor change what was originally intended. State v. Owens (1988), 230 Mont. 135, 138, 748 P.2d 473, 474, citing Dahlman v. Dist. Court, Seventeenth Jud. Dist. (1985), 215 Mont. 470, 473, 698 P.2d 423, 425. In Thomas v. Thomas, 189 Mont. at 550-51, 617 P.2d at 135-36, we readopted State ex rel. Union Bank & Trust Co. v. Dist. Court (1939), 108 Mont. 151, 156, 91 P.2d 403, 406, regarding the use of Rule 60(a), M.R.Civ.P., to correct omissions:

In case of an omission or error in the record, the power

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