Peck v. Peck
| Decision Date | 24 January 2020 |
| Docket Number | No. 20180732-CA,20180732-CA |
| Citation | 459 P.3d 1033 |
| Court | Utah Court of Appeals |
| Parties | Reggie Ann PECK, Appellee, v. Kevin Scott PECK, Appellant. |
¶1 Kevin Scott Peck appeals the district court’s denial of several motions aimed at correcting an alleged clerical error in a qualified domestic relations order (QDRO) entered by the court. We affirm the district court’s determination that the QDRO reflected the parties’ intent but reverse the court’s dismissal of Kevin’s1 rule 60(b) motion on timeliness grounds and remand for further proceedings.
¶2 Kevin married Reggie Ann Peck on June 15, 2001, and the parties divorced on July 15, 2003. Their decree of divorce awarded Kevin all interest in his retirement pension.
¶3 After a short separation, the parties began cohabiting and then remarried on October 22, 2004. The parties divorced a second time on November 19, 2010. The parties’ second decree of divorce, which was based on the parties’ stipulation, referenced the prior marriage, stating that the parties "had previously been married to each other on June 15, 2001, then divorced." With respect to retirement, the second decree provided, "Retirement will be divided according to the formula set forth in the case of Woodward v. Woodward ." It also provided that the division would be accomplished by the entry of a QDRO.
¶4 In early 2016, Reggie submitted a QDRO for approval, which stated, The QDRO further stated that "[t]he Alternate Payee is awarded 50% of the Member’s benefits accrued during the marriage." Kevin did not object to the QDRO, and the court signed it on May 12, 2016.2
¶5 On October 24, 2017, seventeen months after the final QDRO was signed, Kevin filed a motion for a nunc pro tunc order to correct the date of the parties’ marriage in the QDRO from June 15, 2001, to October 22, 2004, asserting that the second decree divided only retirement accrued during the second marriage. Reggie objected, asserting that the date used in the QDRO reflected the parties’ intent to "use[ ] the [first] marriage to equitably divide the retirement" "[b]ecause there was not that much of a gap between the [first] marriage and the second remarriage."
¶6 The court held a hearing on the matter on January 18, 2018. At the hearing, Reggie submitted a letter sent to her counsel from prior counsel that included a QDRO drafted in 2010 that had been approved as to form by Kevin’s prior attorney. Like the QDRO ultimately filed with the court, this QDRO included a marriage date of June 15, 2001. Reggie argued that the earlier QDRO demonstrated that the parties had "always" intended to "put the first marriage date as the date the QDRO would be divided and through the divorce period." Her attorney explained that he "didn’t think [the Decree] needed [the date] because [Kevin’s prior attorney] signed off on the QDRO where it said that." The district court found, based on the QDRO signed by Kevin’s attorney in 2010, "that there is enough evidence to show that the parties intended to use the first marriage date to split the retirement." It therefore denied Kevin’s motion to enter a nunc pro tunc order amending the QDRO.
¶7 Kevin next filed a motion pursuant to rules 60(a) and 60(b) of the Utah Rules of Civil Procedure, requesting that the court either correct the date as a clerical error or set aside the QDRO using "the residuary clause of rule 60(b)" due to gross attorney negligence. (Quotation simplified.) The court denied this motion as well. First, the court rejected Kevin’s rule 60(a) argument because it found, "based upon the previous findings and ruling by the Court at the January 18, 2018, hearing," "that there was no clerical mistake." Second, the court rejected Kevin’s rule 60(b) argument because it determined that Kevin’s arguments on this point were "based on mistake or excusable neglect," matters that must be raised, according to rule 60, "not more than 90 days after entry of the judgment or order." Utah R. Civ. P. 60(c). The court found that Kevin was attempting to "circumvent the three month period" by framing his arguments under the rule 60(b)(6) residuary clause when his allegations as to the competence of his prior attorneys actually concerned mistake and excusable neglect. The court therefore found Kevin’s rule 60(b) motion to be untimely and denied it on that basis. Kevin now appeals.
¶8 Kevin asserts that the district court erred in denying his motion for a nunc pro tunc order, his rule 60(a) motion to correct a clerical mistake, and his rule 60(b) motion to set aside the QDRO. Because both the motion for a nunc pro tunc order and the rule 60(a) motion turned on the existence of a clerical error, we address Kevin’s arguments with respect to both motions as a single issue. In doing so, we accept the court’s factual findings unless they are shown to be clearly erroneous, Stonehocker v. Stonehocker , 2008 UT App 11, ¶¶ 9, 44, 176 P.3d 476, but review its ultimate determination regarding the existence of a clerical error for correctness, see State v. Rodrigues , 2009 UT 62, ¶ 11, 218 P.3d 610 ; Behrman v. Behrman , 2006 UT App 257, ¶ 8, 139 P.3d 307. With respect to the court’s denial of Kevin’s rule 60(b) motion, the court "is afforded broad discretion ..., and its determination will not be disturbed absent an abuse of discretion." Birch v. Birch , 771 P.2d 1114, 1117 (Utah Ct. App. 1989).
¶9 "A clerical error is one made in recording a judgment that results in the entry of a judgment which does not conform to the actual intention of the court." State v. Rodrigues , 2009 UT 62, ¶ 14, 218 P.3d 610 (quotation simplified). Rule 60(a) of the Utah Rules of Civil Procedure permits a court to "correct a clerical mistake ... whenever one is found in a judgment, order, or other part of the record." Utah R. Civ. P. 60(a). "On the other hand, a judicial error is one made in rendering the judgment and results in a substantively incorrect judgment." Rodrigues , 2009 UT 62, ¶ 14, 218 P.3d 610 (quotation simplified). Judicial errors are not subject to correction under rule 60(a) but must be challenged either in the context of appeal or, in limited cases, through a rule 60(b) motion to set aside. See Fisher v. Bybee , 2004 UT 92, ¶¶ 10–11, 104 P.3d 1198 (); Thomas A. Paulsen Co. v. Industrial Comm’n , 770 P.2d 125, 130 (Utah 1989) (). Lindsay v. Atkin , 680 P.2d 401, 402 (Utah 1984) (quotation simplified).
¶10 Kevin maintains that the use of the first marriage date, rather than the second marriage date, in the QDRO is a clerical error because it does not reflect the intention of the second decree. Reggie, on the other hand, asserts that this cannot be considered a clerical error because the court found that the parties intended to use that date in the QDRO.3
¶11 "[O]ur clerical error analysis generally focuses on (1) whether the order or judgment that was rendered reflects what was done or intended, (2) whether the error is the result of judicial reasoning and decision making, and (3) whether the error is clear from the record." Rodrigues , 2009 UT 62, ¶ 14, 218 P.3d 610. Here, the court found that the parties intended to use the date of the first marriage in the QDRO based on Kevin’s prior attorney’s approval of the QDRO as to form. Kevin does not challenge this finding on appeal but instead asserts that any such intention is irrelevant because the QDRO must reflect the terms of the second decree, which contains no findings or conclusions indicating the parties’ or the court’s intent to divide the retirement based on the first marriage date. See supra note 3. But the fact that the plain language of the divorce decree suggests that it may have been legal error to use the first marriage date in the QDRO does not mean that the parties and the court did not intend to use that date. And Kevin has not challenged the court’s finding that the parties intended—erroneously or otherwise—to use the first marriage date. The fact that the parties stipulated to and the court approved a QDRO that contained a legal error ultimately demonstrates an error of judicial decision making, not a mistake in memorializing the QDRO. But Kevin did not object to the QDRO when it was proposed and therefore lost the opportunity to challenge this legal error directly. While this is unfortunate, he cannot now remedy his failure to timely object by reframing the error as clerical. Because we agree with the district court that Kevin cannot establish that the marriage date used in the QDRO was a clerical error, we affirm the district court’s refusal to enter a nunc pro tunc order reforming the QDRO.
¶12 Kevin next asserts that the district court erred in denying his motion to set aside the QDRO pursuant to the residuary clause of rule 60(b) of the Utah Rules of Civil Procedure on the ground that his prior attorneys were grossly negligent in failing to notify him of hearings and orders, failing to appear at hearings, and failing to object to the QDRO in a timely manner. The district court determined that these arguments could not properly be raised under the residuary clause of rule 60(b) because Kevin’s prior attorneys’ actions "may constitute a mistake or excusable neglect" and therefore would be more properly addressed pursuant to rule 60(b)(1). Because a motion under rule 60(b)(1) must be brought within ninety days, the court dismissed Kevin’s motion as untimely.
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