                 Filed 6/2/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 114

Amy M. Axtman,                                          Plaintiff and Appellee
   v.
Myron A. Axtman,                                    Defendant and Appellant



                                No. 20190300

Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable Dann E. Greenwood, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Diane F. Melbye, Dickinson, ND, for plaintiff and appellee.

Daniel J. Nagle, Mandan, ND, for defendant and appellant.
                             Axtman v. Axtman
                               No. 20190300

VandeWalle, Justice.

      Myron Axtman appealed from an amended judgment distributing the
parties’ marital property. Myron Axtman argues the district court abused its
discretion in amending the judgment, and the court amended judgment under
N.D.R.Civ.P. 60(a) without providing proper notice. We affirm.

                                       I

      This is an appeal from a divorce action that was commenced in 2017. The
only issue was division of the parties’ marital property. Included as part of the
parties’ marital property was Myron Axtman’s Hess pension. The pension
benefits commenced on February 1, 2015, at which time Myron Axtman began
receiving $2,891.60 per month.

       The district court issued findings of fact and conclusions of law and
ordered judgment. The judgment stated Myron Axtman’s Hess pension account
“shall be divided equally between the parties as of the date of commencement
of this action for divorce” through a qualified domestic relations order (QDRO).
If Myron Axtman’s Hess pension account could not be equally divided by a
QDRO, the court suggested the issue should be dealt with by motion under
N.D.R.Civ.P. 60.

      Myron Axtman filed a proposed QDRO on March 26, 2019. The proposed
QDRO did not address the pension payments Myron Axtman received during
the pendency of the divorce. The same day, Amy Axtman filed an objection to
the proposed QDRO, alleging the proposed QDRO did not conform to the
judgment. The court scheduled a status conference to discuss the QDRO with
the parties. At the status conference, the court stated its intent was for the
judgment to equally divide the pension payments received by Myron Axtman
during the pendency of the divorce:

      Sometimes in these things problems arise that the Court didn’t
      consider at the time. There’s unintended consequences, but in part


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      we have an issue with the fact that our legislature has decided that
      division of assets occurs effective the date of the commencement of
      the action; whereas, up until that time, the Court generally was
      making divisions as of the date of trial, and try as I may to keep
      that in mind, sometimes it’s difficult to do so. And the thing that I
      didn’t contemplate in my decision was the fact that considerable
      time had passed between the date of the commencement of the
      action and the date of the decision in the context of the Hess plan.
      That’s one issue. It’s possible that, in making the decision, the
      Court is intending that the division should occur in an equal
      fashion. The question is whether or not the Court considered what
      had passed before the date of the decision.
            If we were making the decision as of the date -- I mean, the
      evaluation and the division as of the date of the trial, I would have
      had in mind that any existing checking accounts and the like
      would be divided and those types of things that had passed in the
      meantime would come out in the wash. But the division of the
      checking accounts and savings accounts and the like was of the
      date of the division as well, and as a result, there probably was no
      similarity between the value of those accounts and the date of trial
      as there was on the date of the separation or commencement of
      suit.

At the conclusion of the status conference, the court informed the parties it
intended to sign the QDRO, and if Amy Axtman wanted to further address the
issue of the pension payments Myron Axtman received during the pendency of
the divorce, she would have to do so by separate motion.

      Amy Axtman filed a motion for relief from judgment under N.D.R.Civ.P.
60(b)(3) and (6). The district court amended the judgment under N.D.R.Civ.P.
60(a). In its order, the court declared it failed to take into consideration
N.D.C.C. § 14-23-05, and its failure to do so resulted in a mistake arising from
oversight or omission justifying relief under Rule 60(a). The court further
declared it was the court’s intent that Amy Axtman be awarded half of the
pension benefit payments received by Myron Axtman from the commencement
of the divorce action onward. The district court issued an amended judgment
awarding Amy Axtman half of the pension benefit payments received by Myron
Axtman from the date of commencement of the divorce action.


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      After the district court amended judgment, Myron Axtman filed a
“Motion to Vacate Order on Motion for Relief from Judgment.” Myron Axtman
argued the court’s use of Rule 60(a) to amend the judgment was improper, and
the court did not notify the parties it was amending the judgment pursuant to
Rule 60(a) on its own. The district court denied Myron Axtman’s motion. In its
order, the court declared Myron Axtman had been provided with sufficient
notice that it was correcting a mistake in the judgment under Rule 60(a), that
the mistake in the judgment was from oversight or omission, and further
discussed its intent for Amy Axtman to receive half the pension benefit
payments from the commencement of the divorce action.

                                       II

       Under N.D.R.Civ.P. 60(a): “The court may correct a clerical mistake or a
mistake arising from oversight or omission whenever one is found in a
judgment, order, or other part of the record. The court may do so on motion or
on its own, with notice.” In Fargo Glass & Paint Co. v. Randall, 2004 ND 4, ¶
5, 673 N.W.2d 261 (quoting First W. Bank v. Wickman, 513 N.W.2d 62, 64
(N.D.1994)), we explained our standard for applying this rule:

      This Court has clearly held that Rule 60(a) is not a substitute for
      an appeal on the merits.

                   “Generally, Rule 60(a) can only be used to make
            the judgment or record speak the truth and cannot be
            used to make it say something other than what
            originally was pronounced. We believe it clear that
            Rule 60(a) was not designed to affect substantive
            portions of a judgment or order, nor to act as a
            substitute for appeal. The rule is appropriately
            utilized only for ‘the correction of irregularities which
            becloud but do not impugn [the judgment].’ United
            States v. Stuart, 392 F.2d 60, 62 (3d Cir. 1968). The
            problem is essentially one of characterization. Kelley
            v. Bank [Bldg. & Equip. Corp. of Am.], 453 F.2d 774,
            778 (10th Cir. 1972). It must be determined ‘whether
            a substantive change or amendment was made or



                                       3
            whether the amended conclusions and judgment were
            in the nature of corrections.’ Kelley, supra.

                   “A court may correct, pursuant to Rule 60(a),
            errors created by oversight or omission that cause the
            judgment to fail to reflect what was intended at the
            time of trial. However, Rule 60(a) is not a vehicle for
            relitigating matters that have already been litigated
            and decided, nor to change what has been deliberately
            done.” (Citations, footnote omitted.)

      Gruebele v. Gruebele, 338 N.W.2d 805, 811–12 (N.D. 1983); see
      also Volk v. Volk, 435 N.W.2d 690, 692 (N.D. 1989).

Thus, “[a] court may correct, pursuant to Rule 60(a), errors created by
oversight or omission that cause the judgment to fail to reflect what was
intended at time of trial.” Gruebele, at 811 (citing Mullins v. Nickel Plate
Mining Co., 691 F.2d 971, 973 (11th Cir. 1982); Warner v. City of Bay St. Louis,
526 F.2d 1211, 1212 (5th Cir. 1976); Pattiz v. Schwartz, 386 F.2d 300, 303 (8th
Cir. 1968)).

       In considering federal case law interpreting Fed. R. Civ. P. 60, from
which N.D.R.Civ.P. 60 was adopted, we have said “typical” clerical mistakes
include transcription and mathematical errors, but “the federal rule authorizes
a district court to correct ambiguities and errors of omission or oversight to
clarify and reflect the court’s intent when the initial judgment was
entered.” Roth v. Hoffer, 2006 ND 119, ¶ 9, 715 N.W.2d 149 (citing 12 J.
Moore, Moore’s Federal Practice § 60.11[1] and [2] (3rd ed. 2006)). Additionally,
we have further distinguished clerical from substantive mistakes:

      “The basic distinction between ‘clerical mistakes’ and mistakes
      that cannot be corrected pursuant to Rule 60(a) is that the former
      consist of ‘blunders in execution’ whereas the latter consist of
      instances where the court changes its mind, either because it made
      a legal or factual mistake in making its original determination, or
      because on second thought it has decided to exercise its discretion
      in a manner different from the way it was exercised in the original
      determination.”



                                       4
Id. (internal citation omitted) (quoting Blanton v. Anzalone, 813 F.2d 1574,
1577 n.2 (9th Cir. 1987)).

       In Kukla v. Kukla, 2013 ND 192, ¶ 4, 838 N.W.2d 434, the parties owned
real property and other mineral interests. The divorce judgment distributed
the real property to both parties, but made no mention of any mineral interests.
Id. Over eight years after entry of the judgment, Bobbi Kukla moved the
district court for relief from judgment under N.D.R.Civ.P. 60(a) and 60(b)(1)
and (6). Id. at ¶ 5. Bobbi Kukla alleged the court committed a clerical error
because the court failed to address the parties’ mineral interests in the
judgment. Id. After the district court held a hearing, in which it received
testimony and evidence, the court granted Bobbi Kukla’s motion for relief from
judgment. Id. at ¶¶ 5-6. We reversed, stating, “Under these circumstances, we
conclude N.D.R.Civ.P. 60(a) does not apply, because the amended judgment
went beyond merely correcting a ‘clerical mistake’ or a ‘mistake from an
oversight or omission,’ but rather affected a substantive portion of the divorce
judgment.” Id. at ¶ 20. Our decision was based on the fact that the district
court “held a hearing, received testimony and evidence, and construed the
language of the stipulation to find a mistake from omission and to enter the
amended judgment.” Id. at ¶ 19.

       In Roth, 2006 ND 119, ¶ 11, 715 N.W.2d 149, the district court issued a
memorandum opinion awarding 65% of Roth’s 401(k) to Hoffer and 35% to
Roth. At trial, evidence was introduced valuing the 401(k) at $68,352.41 with
an outstanding loan of $11,233.77 against the account. Id. at ¶ 11. The
judgment, which was prepared by Hoffer, stated the 401(k) had a value of
$53,620.91 with an $11,233.77 loan against it, leaving a net value of
$42,387.14. Id. at ¶ 2. The judgment awarded Hoffer 65% of the net value
stated in the judgment ($27,551.64). Id. A QDRO authorized the administrator
of the 401(k) to hold $27,551.64 for Hoffer. Id. Hoffer filed a Rule 60 motion
claiming there was a clerical mistake because the judgment did not accurately
reflect the amount of money she was to receive from the 401(k) plan. Id. at ¶
3. The district court granted Hoffer’s motion “to the extent that she [sought]
supplementary court orders to assure that the 401(k) plan proceeds that were
awarded in the divorce judgment be made available to her.” Id. at ¶ 4. The

                                       5
district court amended the judgment to award Hoffer “65% of the net value of
$42,027.22,” and amended the QDRO to require the 401(k) administrator to
pay Hoffer “$42,827.22 (65% of the total account balance of $65,657.26).” Id.
We affirmed the amended judgment because the language in the memorandum
decision, which differed from the findings of fact, judgment, and QDRO
prepared by Hoffer’s counsel, supported the district court’s conclusion that
there was a clerical mistake or “blunder in execution” in preparing the findings
of fact, judgment, and QDRO. Id. at ¶ 12. Our reason for affirming was based
entirely on the district court’s intent. See id.

       In Gruebele, 338 N.W.2d at 808, a divorce decree ordered certain real and
personal property owned by the parties be sold and the proceeds from the sale
be divided equally between them. The decree did not contain language
directing a reservation of mineral interests. Id. at 810. The sale of the real
property was advertised with a reservation of the mineral interests, of which
the parties together owned an undivided one-half interest. Id. at 809. Jacob
Gruebele was the successful bidder at the sale of the property. Id. at 808. Jacob
Gruebele’s bid was only for the surface interest, yet he received both the
surface and mineral interests. Id. at 812. The court entered an order
confirming the sale of the property to Jacob Gruebele and ordering a receiver’s
deed be executed and delivered. Id. at 808. Neither the court’s order confirming
the sale nor the receiver’s deed contained any language reserving the mineral
interests in the property. Id. After the receiver’s deed was delivered, the
district court issued an ex parte order conveying an undivided one-fourth
mineral interest to Erna Gruebele. Id. at 808-09. We affirmed the ex parte
order under N.D.R.Civ.P. 60(a). Id. at 812. We reasoned the district court’s
intent was to equally divide the property, selling the property was the only way
of attaining that objective, and a clear mistake had occurred in carrying out
the court’s objective because Jacob received both the surface and mineral
interests for the price of the surface. Id. at 812. However, we stated we would
have preferred the court’s correction have been made under Rule 60(b), but the
correction was proper under Rule 60(a). Id.

     The facts of this case are analogous to the facts in Roth and Gruebele.
The judgment stated Myron Axtman’s “Hess Retirement account shall be

                                       6
divided equally between the parties as of the date of commencement of this
action for divorce by use of a Qualified Domestic Relations Order.” The
amended judgment ordered Myron Axtman pay Amy Axtman half of the
pension payments he had received since the commencement of the divorce
action. As expressed in the original judgment, the court intended for Amy
Axtman to receive half of the pension payments received by Myron Axtman
from the beginning of the commencement of the divorce action. A mistake
occurred because the original judgment did not award Amy Axtman half the
payments Myron Axtman received from the commencement of the divorce
action until judgment was entered. Amending the judgment to award Amy
Axtman half the payments received by Myron Axtman during the pendency of
the divorce corrected an oversight in the original judgment and was consistent
with the court’s intent as set forth in the original judgment. The court’s
omission amounts to a “blunder in execution.” The court did not change its
mind on the share or amount of the Hess pension Amy Axtman was to receive.
The court intended for Myron Axman’s Hess pension to be divided equally from
the date of the commencement of the divorce, and a mistake resulting from the
court’s oversight and unintended omission occurred. Because of the court’s
oversight and omission, Rule 60(a) was a proper mechanism to amend the
judgment.

       We prefer the use of N.D.R.Civ.P. 60(b), rather than N.D.R.Civ.P. 60(a),
when a party seeks to change a previously entered judgment. Fargo Glass &
Paint Co., 2004 ND 4, ¶ 7, 673 N.W.2d 261 (citing Disciplinary Action Against
Wilson, 461 N.W.2d 105, 109 (N.D. 1990); Prod. Credit Ass’n v.
Obrigewitch, 443 N.W.2d 304, 309 (N.D. 1989); Volk v. Volk, 435 N.W.2d 690,
692 (N.D. 1989); Gruebele, 338 N.W.2d at 812)). Amy Axtman moved the
district court for relief from judgment under Rule 60(b)(3) and (6), but the court
amended judgment under Rule 60(a). Although we would have preferred the
judgment have been amended under Rule 60(b), amending judgment under
Rule 60(a) was proper here.

      Amy Axtman brought her motion under Rule 60(b)(3) and (6). Under
subsection (3), a party may be relieved from judgment due to “fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or misconduct by

                                        7
an opposing party.” There is nothing in the record providing a basis for a claim
of fraud or misconduct against Myron Axtman. Granting relief from judgment
pursuant to Rule 60(b)(3) would have been improper.

       Subsection (6) is also inapplicable. Subsection (b)(6) should not be used
when another subsection may apply. Kukla, 2013 ND 192, ¶ 23, 838 N.W.2d
434 (citing Suburban Sales & Serv., Inc. v. Dist. Court of Ramsey Cty., 290
N.W.2d 247, 252 (N.D. 1980); Brigham Oil & Gas, L.P. v. Lario Oil & Gas
Co., 2011 ND 154, ¶ 47, 801 N.W.2d 677; 11 Charles Alan Wright, et
al., Federal Practice and Procedure § 2864 (3d ed. 2012)). But, “Rule 60(b)(6)
may be used when ‘the grounds for vacating a judgment or order are’ within
another subsection, but ‘something more’ or ‘extraordinary’ is present to justify
relief from the judgment.” Id. Amy Axtman did not assert anything “more” or
“extraordinary” existed to justify relief from judgment under subsection (b)(6).
Granting relief from judgment pursuant to Rule 60(b)(6) would have also been
improper.

      Relief from judgment under Rule 60(b) may only be granted on motion
from a party; the court may not provide relief on its own. However, under Rule
60(a), a district court may provide relief from judgment on its own. The court
believed its mistake was from an oversight or omission for failing to take into
consideration N.D.C.C. § 14-23-05 (declaring marital property valued at time
of commencement of action). It is unclear how the court failed to take § 14-23-
05 into consideration when the judgment stated the Hess account shall be
“divided equally between the parties as of the date of commencement of this
action.” But what is clear is that the court intended the Hess pension be divided
equally between the parties as of the date of commencement of the divorce
action. The original judgment did not take into account the payments Myron
Axtman had received from the time between when the action was commenced
to when judgment was entered. Because Amy Axtman did not bring her motion
for relief under any applicable provisions of Rule 60(b), the court could not
provide relief under Rule 60(b). The court could only provide relief under Rule
60(a) because it was doing so on its own. Because, as previously discussed,
omitting an award to Amy Axtman of half the payments received by Myron
Axtman during the pendency of the divorce was a mistake arising from

                                       8
oversight or omission, the district court was within the boundaries of Rule
60(a) to amend the judgment to correct its mistake.

                                      III

       Rule 60(a), N.D.R.Civ.P., states a court may correct a mistake in a
judgment “on its own, with notice.” Prior to amending the judgment, the
district court had not provided the parties notice that it was considering
amending the judgment pursuant to Rule 60(a). Myron Axtman addressed this
issue in his “Motion to Vacate Order on Motion for Relief from Judgment.” The
court denied Myron Axtman’s motion after determining it provided sufficient
notice, stating, “Notwithstanding that the Court concluded that the Plaintiff
was effectively asserting that this problem arose as a result of the Court’s
oversight or mistake, the decision to grant the relief was based upon Plaintiff’s
motion after notice and opportunity to be heard.”

       Amy Axtman’s motion noticed and argued relief from judgment under
Rule 60(b), not Rule 60(a). Although the district court recognized at the status
conference it had made a mistake by omitting from the original judgment
division of the pension payments received by Myron Axtman during the
pendency of the divorce, the court did not correct the judgment on its own when
it could have done so. Rather, it signed the QDRO and directed Amy Axtman
to make a motion to correct the judgment. In doing so, the court did not direct
or advise Amy Axtman to make her motion under Rule 60(a). Rule 60(a) was
a proper mechanism for the court to amend the judgment to correct the mistake
resulting from its oversight and omission, but the court did not provide notice
to the parties it was considering amending judgment pursuant to Rule 60(a).

      However, the court’s error is harmless because, after the court amended
the judgment, Myron Axtman brought his “Motion to Vacate Order on Motion
for Relief from Judgment.” In his motion, Myron Axtman argued the district
court erred in amending the judgment under Rule 60(a) because the original
judgment’s failure to divide the pension payments received by Myron Axtman
during the pendency of the divorce was not a clerical mistake or a mistake
arising from oversight or omission, which is the argument he now raises on
appeal. The court denied Myron Axtman’s motion declaring the amended

                                       9
judgment was issued because of a mistake arising from oversight or omission.
Had the district court provided notice to the parties that it was considering
amending judgment under Rule 60(a), Myron Axtman would have raised the
same issues and made the same arguments he did in his “Motion to Vacate
Order on Motion for Relief from Judgment.” The district court considered
Myron Axtman’s arguments and denied his motion. Furthermore, Myron
Axtman was aware the district court recognized it failed to take into
consideration the payments Myron Axtman received during the pendency of
the divorce in the original judgment, and that Amy Axtman was attempting to
amend the judgment to account for the payments Myron Axtman received
during the pendency of the divorce. The court’s error in not providing notice
does not require reversal. It would be futile for this Court to remand to the
district court for Myron Axtman to raise the same arguments he did in his
“Motion to Vacate Order on Motion for Relief from Judgment” and that he now
raises on appeal.

                                    IV

     The amended judgment is affirmed.

     Gerald W. VandeWalle
     Jerod E. Tufte
     Lisa Fair McEvers
     Jon J. Jensen, C.J.

     I concur in the result.
     Daniel J. Crothers




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