This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re the Marriage of:

Anthony Edward Pelzer, petitioner,





Monica Eleanor Pelzer,



Filed April 20, 2004

Reversed and remanded

Toussaint, Chief Judge


Stearns County District Court

File No. F5-93-3805



Virginia A. Bell, Mary R. Vasaly, Elizabeth Jo Anderson, Maslon Edelman Borman & Brand LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant)


John R. Koch, Reichert, Wenner, Koch & Provinzino, P.A., 501 E. Germain Street, P.O. Box 1556, St. Cloud, MN 56302 (for respondent)



            Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge


             On appeal from the district court’s determination that it lacked jurisdiction to correct an error in the parties’ dissolution decree, appellant argues that the error was a “clerical error,” which may be rectified at any time under Minn. R. Civ. P. 60.01, rather than a “mistake,” which may not be corrected more then one year after judgment under Minn. R. Civ. P. 60.02.  Because there is clear clerical error creating ambiguity on the face of the dissolution decree, we reverse and remand to the district court for clarification.



Prior to their marriage dissolution in 1994, appellant Anthony Pelzer and respondent Monica Pelzer owned approximately 134 acres of real property in Stearns County.  Minnesota Highway 23, running north-south, bisected the property, separating the 33-acre homestead and an additional ten acres (to the west of the highway) from the remaining 91acres to the east.

            The parties’ dissolution decree awarded appellant the homestead and provided a legal description of the 33-acre property.  Respondent, in turn, received “the real estate located across from the homestead . . . of approximately 101 acres.”  The decree later described respondent’s property as the “property across the highway.”  Notwithstanding the decree’s language, an attachment incorporated into the decree provided a legal description of respondent’s property that included the ten acre parcel to the west of Highway 23, the homestead, and acreage that was sold prior to the parties’ divorce.

            The present dispute arose in September 2001 after appellant, believing all 43 acres of the property west of the highway belonged to him, attempted to sell both the homestead and the ten additional acres.  The prospective buyer surveyed the entire property and informed appellant that the decree’s legal description of the homestead property “omitted” the ten additional acres. 

            Appellant moved the court to clarify the decree under Minn. R. Civ. P. 60.01 and correct what he deemed a “clerical error,” thereby changing the legal description of appellant’s property to include the ten acres.  Citing Minn. R. Civ. P. 60.02, the district court determined that it could not address appellant’s claim because the court was divested of jurisdiction to correct “mistakes” after one year.  He now appeals.



Appellant argues that the district court erred in determining that it lacked authority to correct the decree due to Rule 60.02’s one-year time limitation for relief of mistake, inadvertence, surprise, inexcusable neglect, or fraud.[1]  He contends that his claim instead involves “clerical errors” under Minn. R. Civ. P. 60.01, which can be addressed by the court at any time after entry of judgment.  The district court’s conclusions of law, including the interpretation of statutes and rules, are reviewed de novo.  Minnesotans for Responsible Recreation v. Dep't of Natural Res., 651 N.W.2d 533, 538 (Minn. App. 2002). 

Minn. R. Civ. P. 60.01 provides that “[c]lerical 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 upon its own initiative or on the motion of any party. . ..”  (emphasis added).  Minn. R. Civ. P. 60.02 and its statutory counterpart for marital dissolutions, Minn. Stat. § 518.145, however, provide a one-year limit for a court’s authority to grant relief for mistake, inadvertence, surprise, inexcusable neglect, or fraud.

The distinction between the “clerical mistakes” of rule 60.01 and the “mistakes” of rule 60.02 has been an area of contention in Minnesota courts specifically because of rule 60.02’s one-year limitation.  In Egge v. Egge, this court squarely addressed the difference between the two rules, finding that “clerical errors” are “the errors of form made by the court itself,” while “mistakes” under rule 60.02 are errors of a more substantial nature.  361 N.W.2d 485, 488 (Minn. App. 1985).  “Mistakes,” according to Egge, include “error[s] of the parties in expressing their basic intent.”  Id. 

Respondent asserts that Egge should be dispositive, contending that the error here lies – if at all – in the expression of the parties’ basic intent.  But the facts of Egge make it readily distinguishable from the present case.  The flaws in the Egge decree derived from an error by the parties in formulating the distribution of marital property.  Id. at 486-87.  Facially, however, the decree was unambiguous and consistent with the stipulation read into the record.  Id. at 488. 

Here, however, the decree’s inconsistencies make its true intent unascertainable.  Though one portion of the decree refers to respondent’s property as the “property across the highway,” another describes the property with an acreage total that, if correct, would have to include property on both sides of the highway.  The legal description of respondent’s property, attached to and incorporated into the decree, includes the homestead, property on both sides of the highway, and property no longer owned by the parties at the time of the dissolution.  This is not, therefore, solely an “error of the parties in expressing their basic intent.”  Instead, the decree is erroneous and ambiguous on its face, and should be corrected to clarify this ambiguity.  See Eid v. Hodson, 542 N.W.2d 402, 405-06 (Minn. App. 1996) (determining that evidence on face of record supported trial court’s correction of omission).

We are aware of the Minnesota Supreme Court’s caveat that “granting relief for clerical error [may] become a shield behind which to conceal an attack upon the verdict itself.”  Bauer v. Kummer, 244 Minn. 488, 492, 70 N.W.2d 273, 276 (1955).  Under the present circumstances however, that very injustice to the original verdict could result from inaction by the district court.  As such, though the district court may not vacate or amend the original decree, it erred in determining that it could not re-open and correct the judgment to reflect its contemporaneous intent.  See Eid, 542 N.W.2d at 405; see also Edelman v. Edelman, 354 N.W.2d 562, 563-64 (Minn. App. 1984) (holding that court may clarify decree at any time, but is limited in its power to modify decree). 

Because we find conflicting and ambiguous language on the face of the decree concerning the distribution of the parties’ property, we reverse and remand to the district court to correct its clerical errors under rule 60.01, and to clarify the terms of the original decree.  Because we are reversing due to clerical error, we need not address appellant’s additional claims.

Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] It appears that the district court here adopted respondent’s argument that rule 60.02’s explicit exclusion of marriage dissolution decrees from the “final judgments” that a court may re-open only applies to the dissolution itself, and not to property agreements at the time of dissolution.  Though respondent cites a number of cases supporting this assertion in her brief to the district court, these cases were decided before the adoption of Minn. Stat. § 518.145, subd. 2.  1988 Minn. Laws ch. 668, § 11.  Since 1988, section 518.145 has specifically provided the guidelines for the re-opening of all dissolution decrees.  Id.; Maranda v. Maranda, 449 N.W.2d 158, 164 n.1 (Minn. 1989).   But because the language of section 518.145, subdivision 2, is nearly identical to rule 60.02, including rule 60.02’s one-year time limitation, the district court’s reasoning need not be abandoned for its failure to apply the statute.