Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Therese Ann Novick, petitioner,
Timothy George Novick,
Filed May 12, 1998
File No. F4-93-667
Mark W. Benjamin, Parker, Satrom, O'Neil & Benjamin, P.A., 123 South Ashland, Cambridge, MN 55008 (for respondent)
Steven A. Sicheneder, Tennis, Sicheneder & Collins, P.A., Suite 202, 20 North Lake Street, Forest Lake, MN 55025 (for appellant)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Foley, Judge.
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Appellant challenges the trial court's modification of an amended judgment and decree of dissolution. Appellant argues that the trial court abused its discretion by modifying the amended order filed July 1, 1997, pursuant to Minn. R. Civ. P. 60.01, because it did not correct a clerical mistake and had lost jurisdiction to amend the order further. Appellant also asserts that the trial court abused its discretion by reserving respondent's request for spousal maintenance. We reverse.
Appellant Timothy George Novick and respondent Therese Ann Novick were married in 1985. They separated in 1993 and were divorced pursuant to a judgment and decree of dissolution filed May 13, 1996.
Following an appeal by Timothy Novick, this court affirmed in part, reversed in part, and remanded the issue of spousal maintenance. Novick v. Novick, No. C4-96-1859 (Minn. App. Apr. 22, 1997). On July 1, 1997, the trial court filed an order amending the dissolution judgment and decree. Respondent made a motion to modify the trial court's amended dissolution order. However, the trial court denied respondent's motion, holding that it was without jurisdiction to consider her motion for amended findings because she failed to timely serve a motion for amended findings pursuant to Minn. R. Civ. P. 59.03.
Nevertheless, the trial court held that, pursuant to Minn. R. Civ. P. 60.01 (clerical mistakes), it maintained jurisdiction to modify the July 1 amended order. In an amended order filed September 22, 1997, the trial court deleted the phrase "[f]urther, the court is permanently barred from jurisdiction to award spousal maintenance to Wife." In place of the deleted phrase, the trial court substituted the phrase "[t]he issue of spousal maintenance is reserved."
District courts exercise broad discretion in deciding whether to award maintenance and in determining its amount and duration. Zamora v. Zamora, 435 N.W.2d 609, 611 (Minn. App. 1989). Absent an abuse of discretion, a district court's determination of spousal maintenance is final. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).
Appellant argues that the trial court abused its discretion by modifying the amended order filed July 1, 1997, pursuant to Minn. R. Civ. P. 60.01, because it did not correct a clerical mistake, but instead modified a substantive portion of its decision relative to spousal maintenance.
Respondent has failed to serve and file a brief. However, we consider this appeal on the merits, pursuant to Minn. R. Civ. App. P. 142.03.
Minn. R. Civ. P. 60.01 provides:
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 upon its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency on an appeal, such mistakes may be so corrected with leave of the appellate court.
A "clerical error" is an error of form made by the court itself or error attributable to one of the parties in drafting the order or judgment. Egge v. Egge, 361 N.W.2d 485, 488 (Minn. App. 1985). Rule 60.01 "'deals solely with the correction of errors that properly may be described as clerical or as arising from oversight or omission.'" Johnson v. Johnson, 379 N.W.2d 215, 218 (Minn. App. 1985) (quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2854 (1st ed. 1973)). In Johnson, we held that
"[e]rrors of a more substantial nature are to be corrected by a motion under Rule 60.02. Thus, a motion under Rule 60.01 can only be used to make the judgment and record speak the truth and cannot be used to make it say something other than what originally was pronounced."
In the present case, the record does not demonstrate any evidence that an error of form was made by the trial court itself, nor is there evidence that an error attributable to one of the parties was made in drafting the order filed July 1, 1997. The trial court made no finding that any such error has been made. The purpose of rule 60.01 is to correct an error of form made by the court itself or error attributable to one of the parties, not to alter the order to say something entirely different from what was originally stated. Id.; Egge, 361 N.W.2d at 488. Here, the trial court's modified order deleted a phrase, then added another phrase that had an entirely different meaning. This type of substantial modification is not the type of correction allowed under the rule.
Furthermore, the July 1, 1997, amended order did not specifically reserve the trial court's jurisdiction over the issue of spousal maintenance. Instead, the trial court's order denied respondent any spousal maintenance and permanently barred the court's jurisdiction to award spousal maintenance at a later date. Respondent failed to timely serve a motion for amended findings pursuant to rule 52.02 and never filed an appeal from this order. Thus, the July 1 order divested the trial court of any jurisdiction to consider awarding respondent spousal maintenance at a future date. See Eckert v. Eckert, 299 Minn. 120, 124-25, 216 N.W.2d 837, 839-40 (1974) (where divorce decree fails to award maintenance and does not reserve jurisdiction of issue of maintenance for determination at later date, trial court cannot thereafter modify decree to award alimony since to allow such a practice would allow modification of something that never existed).
Therefore, we conclude that the trial court abused its discretion in modifying the July 1, 1997, order and reverse the trial court's amended order filed September 22, 1997.
Because we find that the trial court abused its discretion in modifying the order filed July 1, 1997, we need not consider whether the trial court abused its discretion in reserving respondent's request for spousal maintenance.