                                     No. 96-527
                IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                          1997


IN RE THE MARRIAGE OF
THEODOREC. MCFARLAND,
               Petitioner    and Respondent,
         and
MARLA R. MCFARLAND, n/k/a          MARLA R. WARD,
               Respondent    and Appellant.


MARLA R. MCFARLAND, n/k/a          MARLA R. WARD,
               Plaintiff    and Appellant.
         v.
THEODOREc. MCFARLANDand
CLINTON L. MCFARLAND,
               Defendants    and Respondents.



APPEAL FROM:           District  Court of the Thirteenth Judicial District,
                       In and for the County of Yellowstone,
                       The Honorable Robert W. Holmstrom, Judge presiding.

COUNSEL OF RECORD:
               For Appellant:
                       Randy S. Laedeke;      Laedeke Law Office,    Billings,
                       Montana
               For Respondents:
                       James A. Patten;      West, Patten,   Bekkedahl   &
                       Green, Billings,      Montana


                                     Submitted     on Briefs:   December 5, 1996
                                                     Decided:   February 18, 1997
Filed:
Justice          Karla              M. Gray             delivered                 the     Opinion               of      the        Court.



          Pursuant                  to        Section          I,      Paragraph                3 (c),          Montana              Supreme               Court

1995 Internal                       Operating               Rules,               this     decision                shall            not     be cited               as

precedent              and shall                 be published                     by its         filing              as a public                   document

with      the      Clerk             of        the      Supreme             Court         and by a report                            of      its         result

to     Montana               Law Week,                State          Reporter             and West                Publishing                    Company.

          This          is     an appeal                by Marla                 R. Ward,            formerly                known         as Marla               R.

McFarland                (Marla),                from          orders              entered            on        June          4,         1996,          by     the

Thirteenth               Judicial                District              Court,            Yellowstone                   County,             determining
that      her      postjudgment                       motion           had been deemed denied                                      by operation                   of

law,      and         granting                  the     motion              of        Theodore             C. McFarland                        (Theodore)

compelling                   her         to     enter          a partial                 satisfaction                        of     judgment.                     We

affirm       the         court's                order       on Marla's                   motion            and,        on that             basis,             also

affirm          the          court's            order          granting                 Theodore's                motion.

                                                                      BACKGROUND

          This           case             arises          out          of         a     proceeding                     for         dissolution                    of

marriage           instituted                     by Theodore,                        during         the        course             of      which           Marla

asserted              an action                  as plaintiff                         against         Theodore                    and his               father,

Clinton           L.          McFarland                  (collectively,                         McFarlands)                              The       District

Court      filed              its        findings,             conclusions                  and order                   in    those            underlying

proceedings                    on        November               13,         1995.               In     pertinent                     part,              and       in

addition           to         dissolving                the         parties'             marriage,                the        court         distributed
therein          Theodore                     and Marla's               marital            assets,               with         the        exception                of

the      Lazy         Heart              Nine        cattle.                With        regard             to     the        cattle,               it        found

that       Theodore                 had         22 of          the       cattle            at        the        time         of      the        marriage,

                                                                                  2
that          Marla             helped         increase                 the         number        during           the      marriage,                and that

Theodore's                       father              held          the         cattle             as        constructive                   trustee           for

Theodore                   and Marla;                it        further              found       that        Marla          should          receive          "one

half          of      the        increase                 of     the      cattle."                 Insufficient                   evidence             having

been           presented                     at       trial              regarding                 the           number           of       cattle,           the

District                   Court         determined                     that         further            proceedings                    were      necessary

for      purposes                  of     determining                     the        number            of    cattle,             Marla's          share          of

the          cattle             and       of       any          proceeds              from         the        sale         of     cattle,             and    the

amount             of       attorney                 fees         to     be awarded                    to    Marla.

              Theodore's                  father                filed          a motion            to       amend or             for       a new trial,

which           the         court         denied,                and further                    proceedings                 were        held      relating

to      the         cattle.                  On January                   19,         1996,        the        District              Court         filed          an

Order              and          Memorandum                  containing                    its      findings               with         regard          to    the

total           number             of        cattle             and the              number            to    which         Marla         was entitled
as "one-half                       of     the         increase                 in    the        cattle            during         the       marriage          .        .

.       I,            It        also         found             that      Marla            was entitled                     to     judgment             in    the

amount               of         $2,678.71                 representing                      her        marital             share         of      livestock

sold          before               the         livestock                  inventory                was           taken,          and        $10,000          for

reasonable                      attorney              fees.              Judgment               was entered                 thereon            on January

31,          1996.
              Thereafter,                      the        McFarlands                 moved         for        relief            from       the       judgment

pursuant                   to    Rule          60(b)           (61,      M.R.Civ.P.                      Marla         responded,                a hearing

was held,                   and the               District               Court            denied            the     McFarlands'                  motion          on

March           4,         1996.

              On March                 27,        1996,          Marla          filed           a motion             which         was styled               as a

Rule          60(a),             M.R.Civ.P.,                    motion              to correct              alleged             clerical          mistakes


                                                                                      3
in    the      court's              order            specifying             the         number            of        livestock              and amount
of    sale       proceeds                set     over         to her         and in the                   judgment                entered            in     the

case     on January                  31,        1996.              Mar-la        also        moved         for         an order              in     aid      of

execution.                 The           following                day,      the         McFarlands                    moved          for      an order

compelling             Marla             to enter             a partial                satisfaction                    of      judgment.                  They

claimed           to      have             tendered                to      Marla             the        monetary                  amount            of      the

judgment,              plus          interest                thereon              from            the      date         of        the        judgment,

conditioned               on her            execution                of     a partial               satisfaction                     of      judgment,

and     that        she        refused                the     tender.                 The parties                     filed          memoranda               in

support           of     their             own motions                     and         in     opposition                     to      each          other's

motions.

            On      June            4,         1996,          the          District                 Court              entered               an          order

concluding                 that                the          time          provided                  for             ruling              on         Marla's

postjudgment                   motion            had        passed          and,            as a result,                      that         her      motion

was deemed              denied             by operation                     of        law.         The court                  also         entered           an

order        granting                the        motion              to     compel             Marla            to      execute               a partial

satisfaction                   of        judgment              satisfying                    the        portion              of      the         judgment

requiring              payment             to        her     of      $12,678.71.

            Marla         appeals                    from          both          of         the         June           4,         1996,            orders.
Additional              facts            are     set        forth         below         as necessary                     to our            discussion

and resolution                      of     the         issues            before         us.

            Did the District       Court err in concluding that Marla's
            postjudgment     motion   was deemed denied by operation    of
            law?

            The District                   Court            concluded             that         Marla's                postjudgment                   motion

had been            deemed               denied         pursuant             to        Rule         60(c),            M.R.Civ.P.,                   due to

its     failure           to        rule        on the         motion            within            the         time     provided                  therein.


                                                                             4
Marla's                sole         argument               in        this       regard         is      that         the          Rule      60(c)           time

period            does         not          apply         to      her        motion          because          the        motion           was brought

under         Rule           60(a),           M.R.Civ.P.,                    and that           the     District                 Court           committed

reversible                     error           in         concluding                     otherwise.                  We review                    a      trial

court's             conclusions                      of     law        to     determine              whether             the      interpretation

of     the        law         is     correct.               In       re Marriage               of     Barnard              (1994),               264 Mont.

103,         106,         870 P.2d               91,           93.

             The Montana                     Rules          of       Civil          Procedure           provide             that,           if     certain

postjudgment                        motions               are        not      ruled          upon      within             60 days,                they       are

deemed             denied.                    Specifically,                         the      60-day           deemed              denial           governs

motions             for        relief           from           judgment              made under              Rule        60(b),           M.R.Civ.P.,

motions                for          new       trial              made         under           Rule         59(a),              M.R.Civ.P.,                   and

motions                 to          alter            or          amend          judgment              made          under               Rule            59 (g) ,
M.R.Civ.P.                         See Rules               60(c),            59(d),          and 59(g),                  M.R.Civ.P.

             In        addition                to         the        postjudgment                    motions              referenced                  above,

however,                a party              may file                 a postjudgment                   motion              for         correction                of

clerical                mistakes                in        judgments                 or     orders       pursuant                  to     Rule           60(a),

M.R.Civ.P.                         By its        terms,               Rule          60(a),      M.R.Civ.P.,                      permits           a trial

court             to          correct                clerical                 mistakes               and        errors                 arising             from

oversight                 or        omission               "at       any time,"               whether           on its            own initiative

or     on motion                    of       a party              and after                notice.            In         addition,                the      Rule

60   Cc)          "deemed             denial"               period             is        expressly            limited              to      Rule          60(b)

motions             and,           therefore,                   does not             apply      to     a Rule             60(a),          M.R.Civ.P.,

motion.

             This         brief             review          of       the      Rules          makes      it      clear            that       if     Marla's
motion             was         a Rule            60(a),               M.R.Civ.P.,               motion              to      correct               clerical


                                                                                     5
mistakes,                 the        District                  Court              erred               in        concluding                  that        the            motion
was deemed                 denied           by operation                            of          law        under         Rule          60(c),              M.R.Civ.P.

Thus,          we          address                 whether                   Marla's                       motion            was            a      Rule                60(a),

M.R.Civ.P.,                    motion            to        correct                 clerical                     mistakes.

          The starting                      point               for     Marla's                       assertion              of        error           is        that       her

motion              was         styled                a        "Rule               60(a)                  Motion            to         Correct                   Clerical

Mistakes."                      We are                not           bound,                  however,                by       the         caption                  a party

places           on        a        motion;                rather,                     it        is         appropriate                     to        examine               the

substance                of      the       motion.                    See Miller                           v.    Herbert               (1995),              272 Mont.

132,       135-36,                  900     P.2d               273,      275.                        In      the       event           of        an     issue             over

whether             a motion               is       a mere motion                                to        correct,              the        test           is     whether

the     requested                   change            will           merely                 make the               record             speak           the        truth          as

to      what        was         determined                      or     done,                    or        intended               to     be determined                           or

done,          or        whether             the           change                 will               alter          such          action              or         intended

action.                  Matters             properly                   supporting                              a mere            correction                      must          be

"apparent                on the           face            of    the      record                       . . . ;'I they                   cannot              effectuate

an      actual             change            in        the            judgment                       rendered               or        change            the            rights

fixed      by the               judgment.                      Morse              v.         Morse              (1945),           116 Mont.                     504,      508,

154      P.2d            982,        983-84                (citation                        omitted).                  Examining                   the           specific

requests             for        change            or correction                              contained                 in Marla's                  postjudgment

motion,             in        the      context                 of      the             overall                  case      and the                record                before

us,      we conclude                      that         the          motion                  was not                a Rule             60(a),          M.R.Civ.P.,

motion          and,            therefore,                     that          it             was deemed                 denied               by operation                        of

law.

          The first                   "clerical                     mistake"                    of which               Marla           sought              correction

relates               to            one          liability                        distributed                          to             Theodore                   via        the

                                                                                            6
dissolution                      and          judgment            thereon.                       In        its         November                  13,             1995,
findings,               conclusions                     and order,                    the      District                Court             set          forth         the

parties'               assets            and liabilities                          in       their           entirety                and distributed

those            assets            and        liabilities.                        Theodore                 was assigned                         all         of      the

liabilities,                       including                  those          at        several              banks             and         specifically

including                  a      liability                at     First            Citizens                  Bank            in         the          amount          of

$1,300;              the         District             Court's              conclusions                      of        law     incorporated                          the
asset            and       liability               distribution                        contained                 in     its         findings.                       The

judgment               entered                thereon            distributed                       the       assets                and         liabilities

accordingly,                      by     attaching                Exhibit                  A which           reflected,                       among              other

things,                the         distribution                       of        the           $1,300               First                Citizens                  Bank

liability               to        Theodore.

            In       her         motion,           Marla          requested                    "correction"                        of     the             judgment

with         regard                to       the         First          Citizens                    Bank          liability                      to         include

specific               enforcement                      language                based          on        alleged              events                  occurring

after          the      judgment.                   She asserted                       that          language               requiring                     Theodore

to      make           arrangements                      to      either                pay      off          the        loan             or          to     assume

liability                  for       the       loan        had been                "inadvertently"                            omitted                     from      the

judgment.                      However,             nothing                on     the         face          of        the         judgment,                   or      in

comparison                 to the             earlier           findings,                  conclusions                  and orders                        on which

the     judgment                 was entered,                   suggests               that          the     failure                to        include              such

enforcement                    or payment                provisions                   with       regard            to the               First             Citizens

Bank        liability                   was in          the      nature               of      a clerical                    mistake              or        that       it

was         inadvertently                         omitted             by        the          trial           court                contrary                  to      its

intent.                 The        judgment                does        not        include                  "enforcement"                         provisions

with         regard               to        any       of        the        marital                 liabilities                      distributed                       to

                                                                                  7
Theodore              and,            indeed,                judgments                     in          dissolution                        proceedings
ordinarily                 do not            contain              such         language                with              regard           to         each         and

every        liability               distributed                    to        a party.                   As        a result,                    it        is      not

possible           to       conclude             that         the        District                Court's                  failure              to     include

such       provisions                with        regard             to        the        First          Citizens                  Bank           liability

was        inadvertent                     or         a      mere             clerical                  error.                       In         addition,

particularly                 since         the        motion         to        "correct"                in     this          regard              was based

on alleged               postjudgment                     matters             not     of        record,             it      is      clear            that         the

purported             need         for       correction                  is     not         "apparent                    on the           face            of      the

record          . .        . .'I         See Morse
                                             -I                     154 P.2d               at      983-84.                   We conclude                        that
this        portion             of        Marla's             motion                did          not         seek           a       mere             clerical

correction.

           Marla's           next         request             for        a "clerical                     correction"                      was for                 the
inclusion             of     costs           pursuant               to        5 25-10-101,                    MCA, and expenses                                   she

incurred           in        her         third-party                 action                to     recover                  her       share                of      the

cattle.               She       noted           that          she        had         prayed             for          this           relief                in      her

third-party                complaint,                 that         she was entitled                           to          those        costs              as the

prevailing                 party           in     the             case,             and         that          the           District                  Court's

judgment          stated             that,        except             for       that         portion                of      her       attorney                   fees

specifically                 awarded             to        her,      the        parties                would             be responsible                           for

their        own         fees        and        costs.               Her        motion             asserts                  that          the         court's

inclusion             of     the      word       costs            was a "mistake,"                            since           she was entitled

to      costs      as a matter                   of        law.
           Marla's            argument                that         the        District                 Court's               failure                 to        award

her       costs       is     a "clerical                     mistake"               is     without                 merit.              Whatever                   the
legal        merits          of      Marla's               underlying                 request                for          costs,          it         is        clear


                                                                               8
that          the        District                    Court            rejected                  that        request            when      it     included                in

its           judgment                    that             each           party             would             be        responsible                for           costs

incurred.                      A court's                        action           on substantive                           relief         requested                by a

party,             even         if        erroneous,                      is     not        a mere             clerical              mistake;            it      is     an

affirmative                     and             intended                  act         by        the         court.             Such      an      act          may be
subject              to        revision                    pursuant               to        a Rule             59,        M.R.Civ.P.,               motion              to

alter          or amend or                        a Rule               60(b),          M.R.Civ.P.,                        motion        for      relief               from

judgment,                     but         it         is        not       subject                 to     revision                pursuant           to         a Rule

60     (a),        M.R.Civ.P.,                            motion          to      correct               clerical               mistakes           because               it

would          alter            the            action              taken          or       intended                to        be taken.            See Morse,

154 P.2d                 at     984.
              Marla's                next            requested                   "correction"                        of       a "clerical               mistake"

was her              request                   that            the      exhibit                 to     the     District               Court's           judgment

which              set        forth              the           numbers            of        cattle             of         various         types           and          the
distribution                         of        those             cattle           to       Marla            and Theodore                 be "corrected"

to reflect                    the         District                   Court's           consistently                       stated        intent            that         she

receive              half            of        the         increase              in        the        herd      which           occurred          during               the

parties'                 marriage.                        Again,           we disagree                      that        Marla's         request               was for

a mere              "correction                           of     a clerical                      mistake"               in     the     judgment                rather
than          a substantive                                change--in                  her            favor--in               the      rights           fixed           by

that          judgment.

              The        District                     Court            determined                      that         Theodore            had      22 head                of

cows          at     the        time            of         the        parties'              marriage.                     Marla       does       not          dispute

this           determination                                   and,         indeed,                   she      describes                those             cows          as

pregnant                  cows.                  The             District              Court                determined                that       the           cattle
which              constituted                        a marital                   asset                were        86 cows,             12 heifers,                     84

                                                                                            9
calves           and 3 herd                 bulls.            The District                        Court          awarded                Marla           32 cows,

4 heifers,                    31       calves           and           1 herd               bull.               It          is         clear          that         the
District                Court            subtracted                   the           22      premarital                      cows              from        the          86

marital             asset           cows,        leaving               64 cows;                  the      court             then         awarded               Marla

32 of        those           cows--precisely                          half          the     increase                  in     the        number           of     cows

during           the        parties'             marriage.                    Likewise,                  the        court             came       very          close

to     awarding               Marla            half      of        the        heifers              and half                     of     the       herd          bulls

which         constituted                    the       marital               asset.

            Marla's            primary                argument               is     that         the      number                 of     calves           she was

awarded            does        not       reflect           the         District               Court's               clear              intent           to award

her       half         of     the        increase             in       the         herd          during          the            marriage.                   By her

reckoning,                   she was entitled                          to         precisely               half             the        84 calves                which

were        part        of     the        marital             asset,              or 42 calves,                       and was awarded                           only

31        calves.               Thus,            she       sought                 what           she      perceives                      to      be       a mere

"mathematical                       correction"                  in      the        judgment              to        reflect              her         50% share

of     the       calves.
            Given            the         more         general               "half           of      the          increase"                    approach                 as

contrasted                   with        the       District                  Court's              specific                  itemization                   of      the

number           of     the         various            types           of         cattle           to     which             Marla             was found                to

be        entitled,                 we      cannot            say            that          the          record              before              us       clearly
reflects              that         the      District               Court           intended              its        general               determination

to     control               over         its         specific                numerical                  distribution.                               Moreover,

Marla's             math       is        too     direct,               in         this      instance,                      as it         fails           to     take

into        account            her        own description                          of      the      premarital                        cows as pregnant

cows.            Since         the        cows were              premarital                      and it          is        undisputed                   that      the

District              Court          properly            deducted                   them         from      the         total            number           of cows


                                                                                   10
to     determine                   that           the        increase               during              the     parties'                 marriage              was 64
cows,            the         same             also          must          be      true            of     the      calves                those         cows          were
carrying                at        the         time           of         the      marriage.                    Thus,          the         22 calves                 being

carried            by the               premarital                       cows      at     the          time      of     the         marriage             properly

can be deducted                               from          the         total       number              of     calves             in     order        to       arrive

at       the           increase                   in         the          number             of         calves           during               the        parties'

marriage.                        By      that           calculation,                      the           84 calves                 by      which          the        herd

increased                   during             the          marriage              must         be reduced                by the               22 premarital

calves,               for         an increase                      of         62 calves                during          the        marriage,              of        which

Marla            was             entitled                   to      31          under          the           court's              "one         half           of     the

increase”                   approach.                       That          is     the      precise               number             of      calves           awarded

to Marla               by the               District                    Court.           On that               basis,             we cannot              conclude

that        increasing                      the        number             of      calves            awarded            to Marla               from         31 to        42

would            be     a mere                 mathematical                        correction                    to     reflect               the        District
Court's            intent                in     specifying                      that      Marla              should          receive             "half         of     the

increase"                   in        the      herd.

            The next                    "clerical                  mistake"              Marla            sought             to        "correct"            via      her

postjudgment                          motion                was         the      omission                of      certain                cattle           from         the

judgment.                    She contends                          that          the     number               and description                       of      heifers
born        in        1994,             calves              born          in      1995 and herd                       bulls            must      be added               to

the      judgment                  in         order          to         ensure          that           she receives                     her      share         of     the

cattle            which               the         District                     Court       determined                   were             marital            assets.

While          her          argument                   in        this          regard          is      not      particularly                       clear,           what

Marla          seeks             appears               to be a substantive                                   addition             to the           judgment             or

to     the        District                     Court's                  findings               regarding                the            number         of       cattle

determined                   to         be a marital                           asset.             While         such          a revision                 may have


                                                                                        11
been appropriate                   under         some other             rule     of civil          procedure,            it    could
not be accomplished                        via     a Rule 60(a),                    M.R.Civ.P.,           motion.
        Marla          also        requested              correction                of    a "clerical             mistake"            or
mere mathematical                    error         with      regard            to the $2,678.71                  to which            the
District          Court       found she was entitled                            as her share of the proceeds
of    certain          cattle         sold         before             the      livestock           inventory             taken        on
November 27,               1995,          and which              the        court        included         in     its     judgment
dated       January           31,     1996.              According             to Marla,           the      total        proceeds
from the          cattle           sold      in May and June of                           1995 were $8,036.44                    and,
under       the      court's           "one half                 of     the     increase"           approach,             she was
entitled          to     a judgment                of      half         that        amount,        or    $4,018.22.                  She
sought       to have the judgment                           "corrected"                  in this        regard.
        While          Marla's        math is correct,                         scrutiny           of both        the District
Court's       findings             after         further         proceedings               regarding           the cattle            and
its     judgment           entered           thereon             establishes               that    her motion             did        not
seek a mere correction                           in math.              The District               Court's         "one half           of
the increase"              approach              clearly         related         to an equitable                 distribution
of the livestock                   inventoried              as of November 27, 1995; the court                                       did
not make a "one half                         of the          increase"               finding       with         regard        to the
proceeds          from the sale                   of cattle             prior        to that        time.           Rather,          the
District           Court           found          that       Marla's            marital            share         of     the      sale
proceeds          was the sum certain                        of $2,678.71.                   On that           basis,     Marla's
request       for      additional                sale proceeds                 sought       a substantive               change in
the     findings           and judgment                   which         could        not     be accomplished                   via     a
Rule 60(a),             M.R.Civ.P.,                motion.
           Marla's         final       request             for        correction           of a "clerical                mistake"

                                                                      12
in     the        District              Court's             January                 19,          1996         findings           and      its         January

31,       1996          judgment             relates              to        calf         weight               slips       dated          February                 14,
1996,         and an appraisal                         of     the            cattle              herd         dated       February              27,        1996,

which         purport                 to      show          that             additional                      cattle            should           have         been

included                as marital                 assets.                  Since           Marla's              motion          established                    the

date         of         these         documents               as            after             the       proceedings                 regarding                   the

cattle,                the     court's            findings              and the                   judgment,              they      could         not         have

been matters                    of     record         at the                time         of       the        District           Court's           findings

or      judgment               which         Marla's              motion             purportedly                        sought      to      "correct."

Marla's                 request              in      this              regard               is          to      reopen           and       relitigate

substantive                     matters             already                 concluded                    by      the      January               31,        1996,

judgment.                    As       such,         the      request                 was not                  for       the      correction                  of     a

clerical                mistake            under          Rule          60(a),              M.R.Civ.P.
           We conclude                      that       Marla's                postjudgment                          motion        was not              a Rule

60 (a),            M.R.CiV.P.,                     motion              to      correct                   clerical              errors.                Such          a

motion            is     the      only        postjudgment                     motion               not        subject           to deemed denial

after         60 days                under         either          Rule             59(d),              Rule          59(g),       or Rule             60(c),

M.R.Civ.P.                     The sole             argument                 Marla            makes           on appeal            from         the        order

determining                    that        her      postjudgment                         motion              was deemed denied                        is     that

the      District                 Court       erred          in        applying                   the        deemed denial                time         limits

to      her        motion.                  We hold           that             the          District                  Court       did      not         err         in

concluding                   that          Marla's           motion                was deemed                    denied          by operation                      of

law.

             Did the District                        Court err in granting                                          Theodore's            motion
             compelling    Marla                      to execute  a partial                                           satisfaction             of
             judgment?

             As set            forth         above,          Theodore                    sought              an order           compelling                 Marla


                                                                                    13
to   execute             a partial                  satisfaction                    of     judgment.                 The District                  Court
granted           Theodore's                   motion            and Marla                 appeals.
           Marla's             argument              in        this         regard         hinges              entirely          on her           having

succeeded                in         her        position                 on         the      first               issue       in      this           case.
Assuming            that            we will               have         vacated             the        District             Court's              "deemed

denied"           determination,                      she argues                    here     that          the      amount        of money             set

forth        in      the         District                 Court's                 judgment            will          be     inadequate               and,

therefore,                    that            she         is          not         required                to       execute             a     partial
satisfaction                   of      judgment                in      the        amount         previously                awarded.

           We have              concluded                 above,                 however,           that         Marla's          postjudgment
motion            was         not         a    Rule            60(a),             M.R.Civ.P.,                   motion           and       that        the

District            Court             did       not            err          in     determining                   that      her         motion          was

deemed         denied                by       operation                 of         law.          As        a result,              we need              not

address           this         issue          further            and we affirm                      the        District          Court's           order

granting            Theodore's                  motion.

           Affirmed.                                                                                                         0
