CourtListener opinion 901472

Evidence quotes

Clean opinion text

#23639-rev & rem-JKM

2006 SD 67

 IN THE SUPREME COURT
 OF THE
 STATE OF SOUTH DAKOTA

 * * * *

THEODORE A. NIST, Plaintiff and Appellee,

 v.

SALLY J. NIST, Defendant and Appellant.

 * * * *

 APPEAL FROM THE CIRCUIT COURT OF
 THE SEVENTH JUDICIAL CIRCUIT
 PENNINGTON COUNTY, SOUTH DAKOTA

 * * * *

 HONORABLE THOMAS L. TRIMBLE
 Judge

 * * * *

TERRI L. WILLIAMS of
Gunderson, Palmer, Goodsell &
 Nelson Attorney for plaintiff
Rapid City, South Dakota and appellee.

LINDA LEA M. VIKEN of
Viken Law Firm Attorney for defendant
Rapid City, South Dakota and appellant.

 * * * *

 ARGUED ON MARCH 21, 2006

 OPINION FILED 07/26/06
 #23639

MEIERHENRY, Justice.

[¶1.] Ted and Sally Nist were divorced by a judgment and decree of divorce

entered on January 19, 1996. Nine years later, Ted sought an order amending the

judgment to state expressly that Sally is not entitled to a pro rata share of Ted's

pension and survivor benefits under the Foreign Service Act. The trial court

granted Ted's motion and amended the judgment nunc pro tunc. Sally appeals. We

reverse and remand.

 FACTUAL AND PROCEDURAL BACKGROUND

[¶2.] Ted and Sally Nist were married on May 21, 1983. During their

marriage, Ted served in the federal Foreign Service. After eleven years of marriage,

Ted filed for divorce in September 1994. The matter went to trial on September 29,

1995, before the Honorable Circuit Court Judge Roland Grosshans. The marital

assets included Sally's pension from the Civil Service Pension Program and Ted's

pension from the Foreign Service Pension System. Under federal law, a former

spouse has a right to a portion of an ex-spouse's Foreign Service pension unless that

right is expressly limited by a waiver or a judge's order. Judge Grosshans

announced his ruling at the conclusion of the testimony. Referencing the items of

the joint property exhibit, Judge Grosshans divided the assets, explicitly awarding

Ted's retirement to Ted and Sally's retirement to Sally.1 After the trial, the parties

waived the entry of findings of fact and conclusions of law. Subsequently, the

1. Judge Grosshans stated on the record as follows: "Item 12, FSPS cash value
 of retirement, $93,498.00 is his. . . . Item 17, the FSPS cash value
 retirement, [$]54,758 is hers." The parties agree that regarding Item 17,
 Judge Grosshans meant to reference Sally's Civil Service pension.

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parties made several revisions to and finally agreed upon a proposed Judgment and

Decree of Divorce. The judgment and decree did not expressly address Sally's claim

to Ted's Foreign Service pension. Judge Grosshans signed the judgment and decree

on January 19, 1996, nunc pro tunc, September 29, 1995.

[¶3.] A month later, in February 1996, Ted's counsel sought to amend the

judgment to expressly divest Sally of any claim to Ted's pension. The parties,

however, never reached an agreement, and the judgment was never amended. Ted

then asked Sally to sign a waiver of any claim to his pension. Ted signed a waiver

of any entitlement to Sally's pension; however, Sally refused to sign a reciprocal

waiver regarding Ted's pension. Ted did not pursue the matter until some nine

years later when he realized, while preparing for retirement, that without an

agreement or specific court order, Sally was still entitled to a pro rata share of his

Foreign Service pension.

[¶4.] Thus, in 2005, Ted moved to modify the judgment and decree of

divorce. Ted asked the court to amend the original judgment to include a specific

declaration that Sally was not entitled to a portion of his pension. Ted argued that

Judge Grosshans, who had retired from the bench, did not intend for Sally to

receive those benefits. In response, Sally asserted several defenses to Ted's motion

and filed a motion to dismiss or, in the alternative, for judgment on the pleadings.

In addition, Sally requested alimony in the amount of her pro rata share of Ted's

pension should the court grant Ted's motion to amend. Sally also requested

attorney's fees.

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[¶5.] On April 19, 2005, the Honorable Circuit Court Judge Thomas L.

Trimble held a hearing to consider the parties' motions. Judge Trimble granted

Ted's motion to amend the judgment and decree of divorce to include a provision

specifically stating that Sally was not entitled to a portion of Ted's Foreign Service

pension. Judge Trimble denied Sally's request for alimony and attorney's fees and

did not address her equitable claims of laches, waiver, estoppel, and res judicata.

Sally appeals Judge Trimble's decision. The case presents the following issue for

our consideration:

 ISSUE

 Whether the trial court erred when it amended, nunc pro tunc, the
 prior judgment and decree of divorce.

 DECISION

Amendment of Judgment

[¶6.] Ted's motion to amend was based alternatively on SDCL 15-6-60(a) or

SDCL 15-6-60(b), and the parties presented argument concerning both subsections

on appeal. It appears from the record that the trial judge amended the judgment

under SDCL 15-6-60(a). 2 Therefore, we first address the application of Rule 60(a)

to the facts of this case.

2. At the hearing on Ted's motion, Judge Trimble did not explicitly indicate
 upon which statute his decision was based. He stated:

 I've read through the transcript of the decision that was
 rendered by Judge Grosshans, and basically that's what I'm
 going to render my decision on. It appears to me in that decision
 that he specifically gives [Ted]'s retirement to [Ted], which is the
 FSPS, and [Sally]'s retirement to [Sally], which is the CSRS.
 The amounts were balanced with other properties in there,
 (continued . . .)
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[¶7.] Rule 60(a) provides, in relevant part:

 Clerical mistakes in judgments, orders, or other parts of the
 record 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 and after such notice, if any, as the
 court orders.

___________________
(. . . continued)
 alimony, number of things were used. But what I see in going
 through that was . . . the one apparent thing about him talking
 about maybe using that to guarantee the alimony, and the fact
 that—just the way he line-itemed the matter out. There's no
 question in my mind that's exactly what he did. Consequently, I
 view this as simply enforcing the property settlement dictated
 by the judge, and the technical language which is required . . . .
 The necessity of entering the appropriate language in the decree
 doesn't alter the property settlement as dictated here by the
 Court to the parties at the time of the decision. And by adding
 the language to the decree is only to clarify the decision for
 purposes of the federal retirement program.

 Following that statement, the following exchange took place between Judge
 Trimble and Sally's attorney:

 Mrs. Viken: I will want to do proposed findings, Your Honor.

 The Court: Based upon what? There's no findings.

 Mrs. Viken: No, proposed findings on this motion.

 The Court: There's no testimony.

 ...

 Mrs. Viken: Well there's affidavits and so on.

 The Court: I'm not relying on them. I'm relying on the
 Courts'—that's what I'm saying—I'm relying on the decision of
 the Court, so there's really not a necessity for [findings].

 Judge Trimble's statements establish that he considered Ted's motion under
 SDCL 15-6-60(a) and the amendment of the judgment as clerical.

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SDCL 15-6-60(a). As we have explained, "clerical corrections include the

implementation of what was intended and what the court had accepted as the

proper resolution," but failed "to memorialize [as] part of a decision." Reaser v.

Reaser, 2004 SD 116, ¶29, 688 NW2d 429, 438 (citations and quotation marks

omitted). We review a lower court's ruling on a Rule 60(a) motion for an abuse of

discretion. Cf. Kocher v. Dow Chem. Co., 132 F3d 1225, 1229 (8thCir 1997) ("We

review denials of Rule 60(a) motions for abuse of discretion."); Blanton v. Anzalone,

813 F2d 1574, 1577 (9thCir 1987) ("The standard of review for [a] Rule 60(a) claim

is abuse of discretion."); Walsh v. Larsen, 2005 SD 104, ¶6, 705 NW2d 638, 641

("The decision to grant or deny a motion under [Rule 60(b)] rests with the sound

discretion of the trial court and will not be disturbed on appeal unless there has

been an abuse of discretion.").

[¶8.] The application of Rule 60(a) depends on the characterization of the

correction sought; that is, whether the correction is due to a clerical error or

whether it involves a judicial decision. A clerical error under Rule 60(a) is a

"mistake or omission mechanical in nature," one "which does not involve a legal

decision or judgment by an attorney." Reaser, 2004 SD 116, ¶29, 688 NW2d at 438

(citation omitted). Additionally, the error or omission must be apparent from the

record. Id. Thus, if the correction is clerical, the rule applies; if the correction is

substantive, the rule does not apply. For example, in Wolff v. Weber, we held that

Rule 60(a) could not be used to correct a referee's mistake in applying the child

support guidelines. 1997 SD 52, ¶¶10-13, 563 NW2d 136, 139. In that case, the

record revealed that the referee had misread the guidelines. Id. ¶11. Instead of

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using the amount of support for two children, the referee ordered the amount of

support listed in the column for one child. Id. We found this mistake was not

clerical. Id. ¶12. We declined to characterize the child support error as a correction

within Rule 60(a). Id. We said:

 We find the error here to be one of judicial function rather than
 a clerical mistake. Determination of a party's child support
 obligation requires application of the law to the facts of the case
 and affects the substantive rights of the parties. Such a process
 can never be held to be merely clerical. SDCL 15-6-60(a) does
 not authorize "correction" of a mistake of judicial function.

Id. Thus, even though the record revealed that the referee unintentionally used the

wrong figure from the child support guidelines, we characterized the error as a

substantive change that could not be corrected with a Rule 60(a) motion. Id. ¶¶11-

12. Quoting the Supreme Court of Montana, we said: "‘The authority of a court to

amend its record by a nunc pro tunc order is to make it speak the truth, but not to

make it speak what it did not speak but ought to have spoken.'" Id. ¶13 (quoting

Thomas v. Thomas, 189 Mont 547, 551, 617 P2d 133, 135 (1980)); see also Reaser,

2004 SD 116, ¶29, 688 NW2d at 438 (detailing the nature of clerical errors).

[¶9.] As with Wolff, the omission in the present case was not a clerical error,

but rather was substantive in nature. It involved a judicial function. The judicial

function was to determine whether Sally would be able to claim a portion of Ted's

federal pension. Even though Judge Grosshans may have intended to preclude

Sally from claiming her entitled portion of Ted's pension under the Foreign Service

Act, his intention is not clear from the record. The record contains the judgment,

which merely provided that "the assets and liabilities shall be divided as set forth

on the attached property division sheet." The property division spreadsheet placed

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Ted's retirement in the amount of $93,498 in the column marked "Husband" and

Sally's retirement in the amount of $54,758 in the column entitled "Wife."

Similarly, Judge Grosshans' oral pronouncement gave Ted the cash value of his

pension and Sally the cash value of hers. The record contains no other testimony or

documentation explaining how the cash value of Ted's retirement amount was

calculated or whether the amount included or excluded Sally's entitlement. Sally

provided Judge Grosshans with a copy of the federal statute that required a court

order or spousal agreement to divest Sally of her entitled share. Nevertheless, the

judge made no reference of his intention concerning the federal law either in his

oral ruling or in the judgment. 3

3. The relevant portions of that statute provide:

 (a) Entitlement to share in benefits . . .
 (1)(A) Unless otherwise expressly provided by any spousal agreement
 or court order governing disposition of benefits under this part, a
 former spouse of a participant or former participant is entitled . . . to
 a share . . . of all benefits otherwise payable to such participant
 under this part if such former spouse was married to the participant
 for at least 10 years during service of the participant which is
 creditable under this subchapter with at least 5 of such years
 occurring while the participant was a member of the Foreign Service.

 ...

 (b) Entitlement to survivor benefits . . .
 (1) Unless otherwise expressly provided for by any spousal agreement
 or court order governing survivorship benefits under this part to a
 former spouse married to a participant or former participant for the
 periods specified in subsection (a)(1)(a) of this section, such former
 spouse is entitled to a share . . . of all survivor benefits that would
 otherwise be payable under this part to an eligible surviving spouse
 of the participant.

 22 USC § 4071j (emphasis added).

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[¶10.] Judge Trimble attempted to determine Judge Grosshans' intent from

the record and to amend the judgment to reflect that intent. By amending the prior

judgment under Rule 60(a), however, Judge Trimble impermissibly made "it speak

what it did not speak but [what he thought it] ought to have spoken." Wolff, 1997

SD 52, ¶13, 563 NW2d at 139. Similar to the child support obligation in Wolff,

Sally's entitlement to or divestment of Ted's Foreign Service pension was a judicial

function, not a clerical mistake. Consequently, the trial court abused its discretion

when it amended the judgment entered by Judge Grosshans.

[¶11.] Our holding applies only to the limited issue of whether the judgment

can be amended nunc pro tunc pursuant to SDCL 15-6-60(a). Whether it can be

amended under SDCL 15-6-60(b) is not before us. The trial court did not address in

the first instance Ted's claim for relief under SDCL 15-6-60(b), Sally's claim for

alimony, or Sally's equitable defenses of laches, waiver, estoppel, and res judicata.

We decline to consider them for the first time on appeal. We, therefore, reverse and

remand for the trial court to consider the remaining claims of both parties,

including Sally's claim for attorney fees. 4

[¶12.] Sally is awarded appellate attorney's fees in the amount of $5,000.00.

[¶13.] GILBERTSON, Chief Justice, and SABERS, Justice, concur.

[¶14.] ZINTER, Justice, concurs with a writing.

[¶15.] KONENKAMP, Justice, dissents.

4. Sally sought review of the trial court's denial of attorney fees. The issue of
 attorney fees would need to be reconsidered by the trial court in light of our
 ruling to remand the remaining claims.

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ZINTER, Justice (concurring).

[¶16.] There are three critical facts that distinguish this case from those

involving oversights, omissions, and clerical mistakes. First, under the Foreign

Service Act, Sally possessed a statutory entitlement 5 to a future percentage share of

the ultimate Foreign Service benefits regardless of the present "cash value" 6 Judge

Grosshans placed upon them for purposes of making a property division. Moreover,

prior to making that property division, Judge Grosshans was informed of the Act,

which specifically required a court order or spousal agreement to divest Sally of her

future proportionate share of the Foreign Service retirement benefits. He was also

informed in Sally Nist's pretrial briefs that she had rights "under federal law,

including the survivor's benefit and a certain percentage." Therefore, Judge

Grosshans' use of the present cash value and his failure to provide a divestiture

clause when he divided the then existing value of the marital estate created

uncertainty concerning Sally's future statutory entitlement under the Foreign

Service Act.

[¶17.] Second, it is also significant that, within the time to appeal from the

judgment, the parties apparently realized the legal effect of the judgment because

they began negotiations over a spousal waiver. Yet, for reasons not disclosed in the

record, the parties failed to resolve that legal dispute at that time by seeking a

5. See supra n3 (quoting 22 USC § 4071j(a)-(b)).

6. The divorce court's reference to each party's retirement plan's cash value was
 a reference to the present value (at the time of the divorce) of a future stream
 of estimated retirement benefits, based upon a number of assumptions
 (including mortality).

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clarification from Judge Grosshans. Instead, Theodore waited nine additional years

to resurrect the argument in the Rule 60(a) motion that is now before this Court.

[¶18.] Finally, this case is unlike those relied upon by the dissent where the

judge who rendered the original judgment was asked to correct his or her own

judicial oversight. See e.g. Antepenko v. Antepenko, 584 So2d 836, 838 (AlaCivApp

1991) (noting that "[w]hen the correction of such errors through Rule 60(a) is based

upon the recollection of the court, it is not subject to contest"). Furthermore, those

cases involved relatively easy determinations of oversight. See e.g., Semtner v.

Group Health Serv. of Okla., Inc., 129 F3d 1390, 1392 (10thCir 1997) (involving a

"readily ascertainable and undisputed" omission); In re Walter, 282 F3d 434,

442 (6thCir 2002) (noting that the "bankruptcy court state[d] in clear and

unequivocal language that it intended to remove Pruzinsky entirely from the force

of the order, and that the order, as modified, did not reflect that intent"). In

contrast, in our case, Judge Trimble was asked to divine what retired Judge

Grosshans had intended nine years earlier and was asked to do so without the

benefit of his testimony.

[¶19.] For all these reasons, it is now impossible to unequivocally categorize

Judge Grosshans' failure to divest Sally of her federal entitlement as a mere

oversight, omission, or clerical mistake.

KONENKAMP, Justice (dissenting).

[¶20.] The Court holds that SDCL 15-6-60(a) (Rule 60(a)) cannot be used to

add to the parties' judgment of divorce statutory language reflecting Judge

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Grosshans' oral ruling after trial to award the husband his full pension. Contrary

to this Court's constricted view of the rule, however, other "courts have usually

taken a liberal approach to the terms ‘clerical mistakes' and ‘errors' arising from

oversight or omission, in construing Rule 60(a) for application to a particular

correction sought to be made in a judgment, order, or other part of the record." Jean

F. Rydstrom, Construction of Rule 60(a) of Federal Rules of Civil Procedure, 13 ALR

Fed 794 §4 (1972).

[¶21.] Surely, there can be no doubt from Judge Grosshans' announced

decision that his intention was to award both spouses their own pensions. The fact

that the judgment does not reflect this intention constitutes a simple omission,

precisely the kind of error the law allows to be corrected under Rule 60(a). Judge

Trimble realized this and properly granted the husband's motion to correct the

judgment entered by Judge Grosshans. We are not entitled to reconsider this

matter as if the motion had been originally brought before us. On this kind of

appeal, our standard of review is most deferential. Unless we can say that Judge

Trimble clearly abused his discretion, the decision should stand. Walsh v. Larsen,

2005 SD 104, ¶6, 705 NW2d 638, 641.

[¶22.] All the husband had asked for was that the trial judge's decision be

stated in the judgment. That is what the rule was designed to accomplish. Indeed,

Rule 60(a) "enables a court to ensure that its orders, judgments, and other parts of

its record of proceedings are an accurate reflection of the true actions and intent of

the court and the parties." 12 James Wm. Moore, Moore's Federal Practice §

60.02[1] (3ded 2006). "It is axiomatic that courts have the power and the duty to

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correct judgments which contain clerical errors or judgments which have issued due

to inadvertence or mistake." In the Matter of West Texas Marketing Corp., 12 F3d

497, 504 (5thCir 1994).

[¶23.] Delay in bringing an omission to the attention of the court is not an

overriding consideration. Rule 60(a) allows for the correction "at any time" of

clerical mistakes and errors arising from oversight or omission. SDCL 15-6-60(a);

cf. Fed R Civ P 60(a). Although this Court ignores the "omission" part of the rule

and thus limits the type of error subject to correction in this case, legal scholars

take pains to point out that "Rule 60(a) permits the correction of clerical mistakes in

judgments, orders, or other parts of the record as well as the correction of errors

arising from oversight or omission." 11 Charles Alan Wright, et al., Federal Practice

and Procedure § 2854 (2ded 1995) (emphasis added). Whether the mistake is

designated a "clerical error" or an "oversight or omission" is of no import.

[¶24.] In reaching the opposite conclusion, this Court reasons that the

judgment cannot be corrected because "[e]ven though Judge Grosshans may have

intended to preclude [the wife] from claiming her entitled portion of the husband's

pension under the Federal Service Act, his intention is not clear from the record."

Can there really be any doubt what Judge Grosshans intended when he declared

that each party was to be awarded the full value of his and her own pension? It is

inconceivable to think that while he said that each would get the full value of his or

her pension, at the same time, he really meant that they would nonetheless be

entitled to a portion of each other's pensions. Nothing in his oral decision suggests

such an incongruous ruling. Indeed, in accord with the judge's order to both parties

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to sign any documents necessary to effectuate his ruling, the husband followed

through with his understanding of the judge's decision: he signed a written waiver

of any claim to the wife's pension.

[¶25.] Following the divorce trial, the parties agreed upon a proposed

judgment and decree of divorce. Judge Grosshans signed the judgment and decree

in January 1996. A month later, the husband's attorney sought to amend the

decree to reflect that the wife had no claim to the husband's pension. However, the

parties were unable to agree and the judgment was never amended. 7 When the

husband began the retirement process, he realized that certain boilerplate language

required under the Federal Service Act governing Foreign Service pensions was

missing from the decree. Before the federal government can comply with the

decree, this language must be inserted. Adding the language to reflect the decision

Judge Grosshans made is purely a mechanical act, a formality. It involves no

judicial interpretation and no adjustment for an error of law or fact. It merely

corrects an "oversight or omission."

[¶26.] In a variety of circumstances, federal courts have applied Rule 60(a) to

correct the type of omission we have here. In Dudley v. Penn-America Ins. Co., 313

F3d 662 (2dCir 2002), an amended judgment was approved that corrected a judicial

oversight arising from the court's failure to include a monetary award in its original

judgment. The same result was sanctioned in Semtner v. Group Health Serv. of

7. That Judge Grosshans was given a copy of the federal statute governing
 Foreign Service pensions is of no significance because he asked the lawyers to
 draw the judgment for his signature. The fact that the original judgment did
 not contain the language from the federal statute constituted an oversight.

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Oklahoma, Inc., 129 F3d 1390 (10thCir 1997) (omission of specific amount of

damages may be viewed as a clerical error). Again, in the case of In re Walter, 282

F3d 434, 440-41 (6thCir 2002), cert. denied, Giannetti v. Pruzinsky, 123 SCt 118,

537 US 885, 154 LEd2d 144, where an order approving settlement failed to strike a

party's name so as to preserve his subsequent rights, the appellate court approved

the lower court's correction under Rule 60(a) to remove the party in accord with the

court's intent.

[¶27.] In state divorce proceedings, correcting an error of this type is not

uncommon. Trial courts are often called upon to amend an order to add language to

conform to the original intent of the court or the parties. See Antepenko v.

Antepenko, 584 So2d 836 (AlaCivApp 1991) (omission from decree of award of farm

equipment to husband was correctible under Rule 60(a)); Ozment v. Ozment, 11 P3d

635, 639 (OKCivApp 2000) (QDRO); Brooks v. Brooks, 864 SW2d 645, 647

(TexCtApp 1993) (trial court properly corrected divorce judgment to effectuate

judge's intention to grant husband half of wife's retirement benefits); Spomer v.

Spomer, 580 P2d 1146, 1149-50 (Wyo 1978) (clarifying order properly entered as

correction under Rule 60(a) to resolve whether husband's obligation under decree to

satisfy "mortgage" was intended to serve as property distribution or maintenance).

See also Elsasser v. Elsasser, 989 P2d 106 (Wyo 1999). See other state cases cited

in James L. Buchwalter, Amendment of Record of Judgment in State Civil Cases to

Correct Judicial Errors and Omissions, 50 ALR 5th 653 (1997).

[¶28.] We are not here to decide whether we agree or disagree with the

original decision made by Judge Grosshans, who is now retired. Our only function

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is to decide whether Judge Trimble appropriately amended the judgment to

facilitate the decision Judge Grosshans made. Under our standard of review, the

question is whether Judge Trimble abused his discretion. The record shows that he

did not, and therefore his decision should be affirmed.

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