State v. Vetter , 2023 ND 146 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 2, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 146State of North Dakota, ex rel, and
B.T.S., minor child, by and through Amy Salter, Plaintiffs
v.
Tyler Vetter, Defendant and Appellant
No. 20230031
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.
REVERSED AND VACATED IN PART.
Opinion of the Court by McEvers, Justice.
Amy Salter on behalf of B.T.S., Mandan, ND, plaintiff; no appearance.
Justin D. Hager, Bismarck, ND, for defendant and appellant.
State, et al. v. Vetter
No. 20230031
McEvers, Justice.
[¶1] Tyler Vetter appeals from a fifth amended judgment entered after the
district court denied his motion to hold Amy Salter in contempt and, on its own
motion, invoked N.D.R.Civ.P. 60(a) to modify a fourth amended judgment. We
reverse and vacate a portion of the fifth amended judgment, holding the
district court erred when it invoked Rule 60(a) to make a non-clerical change
to the judgment.
I
[¶2] The district court entered a judgment requiring Vetter to pay Salter child
support in this action. The judgment has been amended various times for
reasons not relevant to this appeal. In a separate action, the court ordered
primary residential responsibility changed from Salter to Vetter. The court
subsequently entered a fourth amended judgment in this action requiring
Salter to reimburse Vetter child support amounts he paid. It stated:
Testimony at the hearing in this matter indicated that
Tyler’s child support obligation was taken out from January [2022]
to May [2022] and distributed to Amy Salter. This resulted in her
receiving $586.00 for each of those months. During that time, she
did not support the minor child B.S. at all. As Tyler is now relieved
of his child support obligation for those months, Amy must pay
that money back to Tyler. Since an offset of child support
obligations is not possible in this matter (as would be the normal
way to deal with an overpayment), Tyler is granted judgment
against Amy Salter in the amount of $2,930.00.
(Emphasis omitted.) Two days after the court entered its order to amend the
judgment, we issued our opinion in Hamburger v. Hamburger, which explained
a vested child support obligation cannot be retroactively modified, 2022 ND
154, ¶ 7, 978 N.W.2d 709. Neither party appealed the fourth amended
judgment.
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[¶3] Vetter moved for an order to hold Salter in contempt for not paying him
the $2,930. The district court held an evidentiary hearing. At the hearing, the
court explained it believed its decision requiring Salter to pay Vetter was
implicated by our opinion in Hamburger. The court ordered the parties to
submit briefing as to whether Hamburger “impacts any aspect of the judgment
that was entered.” After Vetter submitted briefing, the court entered an order
denying his motion for contempt and modifying the fourth amended judgment
to remove the provision requiring Salter to pay Vetter. The court explained:
Upon a careful reading of Hamburger v. Hamburger, and
applying the law of that case to the facts here, the Court concludes
that it committed error in making a retroactive modification of the
child support obligation of Tyler Vetter to pay child support . . . . It
was further error to require Amy Salter to “reimburse” Tyler Vetter
for those lawfully ordered child support payments.
(Emphasis in original.) The court, citing N.D.R.Civ.P. 60(a), ordered the fourth
amended judgment “be modified to reinstate the child support obligation of
Tyler Vetter” for the earlier period and to “strik[e] the obligation of Amy Salter
to make reimbursement.” A fifth amended judgment was entered accordingly.
Vetter appeals challenging the court’s decision to modify the fourth amended
judgment. He does not challenge the court’s denial of his contempt motion.
II
[¶4] Vetter argues the district court lacked authority to amend the judgment
under N.D.R.Civ.P. 60(a), which provides:
(a) Corrections Based on Clerical Mistakes; Oversights and
Omissions. 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. . . .
We review a district court’s decision under N.D.R.Civ.P. 60(a) for an abuse of
discretion. Black Stone Minerals Co., L.P. v. Brokaw, 2017 ND 110, ¶ 19, 893
N.W.2d 498. “‘A district court abuses its discretion when it acts in an arbitrary,
unreasonable, or unconscionable manner, or when it misinterprets or
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misapplies the law.’” Id. (quoting Kukla v. Kukla, 2013 ND 192, ¶ 24, 838
N.W.2d 434).
[¶5] Rule 60(a), N.D.R.Civ.P., is not a substitute for an appeal. Fargo Glass &
Paint Co. v. Randall, 2004 ND 4, ¶ 5, 673 N.W.2d 261. Rule 60(a) was designed
to allow courts to correct errors created by oversight or omission—to make the
judgment “speak the truth”—but it does not allow the court to “change what
has been deliberately done.” Kukla, 2013 ND 192, ¶ 11 (quoting Fargo Glass &
Paint Co., at ¶ 5); see also Gruebele v. Gruebele, 338 N.W.2d 805, 811 (N.D.
1983) (stating the court may not make the judgment “say something other than
what originally was pronounced”). The court may correct “blunders in
execution,” but it may not change its mind based on a legal or factual mistake.
Hageness v. Davis, 2017 ND 132, ¶ 13, 896 N.W.2d 251. Cf. 11 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2854 (3d ed. April
2023 update) (“The fact that a decision is shown to be erroneous by a
subsequent decision of a higher court is not the kind of clerical mistake or error
of inadvertence that is within [Fed. R. Civ. P. 60(a)].”).
[¶6] The district court’s modification of the judgment in this case did not
correct a clerical mistake or a mistake arising from oversight or omission as
authorized by Rule 60(a). Based on the court’s understanding of subsequent
case law, the court amended the judgment to relieve Salter of her obligation to
pay Vetter, which the court had intentionally imposed upon her. Even if the
court was correct that its original decision was based upon a mistaken view of
the law, Rule 60(a) does not authorize the court’s modification. We conclude the
court abused its discretion by misapplying the law when it invoked Rule 60(a)
to relieve Salter of her obligations under the fourth amended judgment.
III
[¶7] We decline to address the remaining issues raised by Vetter because they
are unnecessary to our decision. We reverse and vacate the portion of the fifth
amended judgment modifying Salter’s obligations under the fourth amended
judgment.
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[¶8] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Jay A. Schmitz, D.J.
[¶9] The Honorable Jay A. Schmitz, D.J., sitting in place of Bahr, J.,
disqualified.
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