Opinion
20-P-123
05-07-2021
Kerry KEOHANE v. John WHALEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The question before us is whether a judgment in this divorce matter was properly amended, some nine months after it entered, pursuant to Mass. R. Dom. Rel. P. 60 (a) (which is identical to Mass. R. Civ. P. 60 [a]). On February 28, 2019, a Probate and Family Court judge issued a modification to the parties’ divorce judgment which provided, among other things, that John Whalen, the former husband, should have paid Kerry Keohane, the former wife, $97,184 in alimony for the year ending April 30, 2018 (2019 judgment). The husband did not move to amend the 2019 judgment within ten days, nor did he notice an appeal. Nine months later, on December 6, 2019, the judge amended the 2019 judgment by reducing the amount of alimony for 2018 to $92,684 (December 6 amendment) -- a difference of approximately $4,500. The wife appeals from the December 6 amendment, arguing that there is no basis under the Rules of Civil Procedure for the judge to have amended the judgment as she did. The husband argues that the amendment was proper pursuant to rule 60 (a). We affirm.
Background. The genesis of the dispute here is the language in the parties’ separation agreement (agreement) that governs the calculation of alimony. The parties were married in 1992, and a judgment of divorce nisi entered on December 1, 2010. The 2010 judgment incorporated the agreement, which included a formula for calculating adjustments to alimony. That provision provided in full:
"b. The new alimony amount shall be determined by calculating the difference in the Parties’ earned incomes and applying the percentage set forth below to that difference, and then calculating the monthly payment amount:
| Difference in the Parties’ Earned Incomes | % |
|---|---|
| Up to $200,000 | 37% |
| $200,000-250,000 | 36% |
| $250,000-300,000 | 35% |
| $300,000-350,000 | 33% |
| Over $350,000 | 33% of $350,000 |
"For example, and solely for purposes of illustration, (a) if [Father] earns $325,000, and [Mother] has no earned income, the alimony would be $325,000 times 33% = $107,250 in monthly installments of $8.937.50; and (b) if [Father] earns $375,000 and [Mother] has no earned income, the alimony would be $350,000 times 33% = $115,000 in monthly installments of $9,625."
In 2016, the husband's income was $264,812, and the wife's income was below $40,000 and thus treated as zero. Pursuant to the agreement, 2016 income is used to calculate alimony due from May 2017 through April 2018. Under the above formula, the amount owed should have been calculated as $92,684, which is thirty-five percent of $264,812. This calculation is clear from the agreement's example, which simply applies the applicable percentage to the entirety of the income differential. In this instance the income difference fell between $250,000 and $300,000, so the applicable percentage was thirty-five percent.
The judge's order, however, awarded $97,184, rather than $92,684. The judge's rationale, which accompanied the 2019 judgment, stated as follows:
"153. Beginning May 1, 2017, per the calculation in the Agreement, and using Father's 2016 income of $264,812, Father should have paid Mother $97,184 for the year" (emphasis added).
As noted, the husband neither appealed nor sought to amend the 2019 judgment within ten days. Nor did he pay the alimony set in the 2019 judgment. The wife accordingly filed a complaint for contempt. The judge held a hearing in May of 2019, at which the husband (appearing pro se) for the first time pointed out that the alimony was calculated improperly:
HUSBAND : "That $97,184, Your Honor, is not based on a 35 percent."
After some further discussion, the following exchange took place:
JUDGE : "So I will tell you that I have a different interpretation than you and what that chart meant, then. I take the first 200,000 as 37, the 200 to 250 as 36, which is how you ended up with that amount."
HUSBAND : "But that's not the way it's written in the separation agreement, Your Honor.... [Y]ou apply the whole amount."
Later in the colloquy the judge stated that she will "look again at what [the agreement] says," and took the issue under advisement.
The judge thereafter issued the December 6 amendment, setting the correct alimony figure of $92,684.20. The judge's "Order to Amend" states that she "incorrectly" calculated the 2018 alimony, "in contradiction to the Separation Agreement." The wife appeals from the December 6 amendment.
Discussion. On appeal, the wife sensibly does not argue that the judge improperly calculated the amended figure under the formula of the separation agreement. Rather, the wife argues that even if the 2019 judgment was erroneous, the error was an error in "interpretation" of the agreement, which could not be corrected under rule 60. Put differently, the wife argues that the 2019 judgment became final thirty days after it entered and was not appealed, and that there was no mechanism to correct the judge's "interpretive" error after the appeal period passed. The husband, on the other hand, contends that the December 6 amendment merely corrected a "clerical error," and that such a correction was authorized and permissible under Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974).
We review the judge's order for abuse of discretion or other error of law. Gagnon v. Fontaine, 36 Mass. App. Ct. 393, 400 n.7 (1994). Here we think the December 6 amendment was permissible because it merely conformed the judgment to the judge's intent, which was to apply the unambiguous formula of the agreement.
Rule 60 (a) states in material part:
"(a) Clerical Mistakes. 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 of its own initiative or on the motion of any party ..."
The case law construing this rule has sought to draw a line between those mistakes that are "clerical," and those that are "substantive." Only the former is correctable under the rule; a judge's "substantive" errors must be corrected by other means, such as a motion under rule 59, or on appeal. This court in Gagnon described the distinction as follows: "If the flaw lies in the translation of the original meaning to the judgment, then rule 60 (a) allows a correction; if the judgment captures the original meaning but is infected by error, then the parties must seek another source of authority to correct the mistake." Gagnon, 36 Mass. App. Ct. at 398, quoting United States v. Griffin, 782 F.2d 1393, 1396-1397 (7th Cir. 1986).
Put differently, the cases often ask whether the judgment that entered was consistent with the judge's original intent; if so, then the judgment cannot be corrected. See, e.g., Chapman v. University of Mass. Med. Ctr., 423 Mass. 584, 589 (1996) ; Gagnon, 36 Mass. App. Ct. at 400 ; De Luca v. De Luca, 26 Mass. App. Ct. 191, 194 (1988). Here we are satisfied that the 2019 judgment did not reflect what the judge intended, because the judge simply intended to follow the formula set by the plain meaning of the agreement. The judge said as much in her rationale; the number was to be reached "per the calculation in the agreement." See Gagnon, 36 Mass. App. Ct. at 400 ("An alteration has been deemed ‘clerical’ ... when a portion of the judgment indicates on its face that the alteration reflects a judge's original intent"). We are bolstered in this view by the fact that the judge's December 6 "Order to Amend" treats the mistake as a "calculation error." Although the judge did not specifically cite rule 60 (a), we think the tenor of her order was that the judgment was not what she intended, and that she had made a straightforward mistake. Some deference is due to the judge's own view of her original intent. See Chapman, supra at 589; Gagnon, supra at 400 n.7. Moreover, we find support for the correction of such an error in the plain language of rule 60(a), which allows judges to correct not only "clerical errors," but also errors "arising from oversight." De Luca, supra at 194. The mistake at issue falls comfortably within this category. See M.B. Claff, Inc. v. Massachusetts Bay. Transp. Auth., 441 Mass. 596, 602-603 (2004) (error in calculation of amount owed properly addressed through rule 60 (a) where award itself was not otherwise substantively disputed); De Luca, supra.
The husband has not argued that any of the provisions of rule 60 (b) would have authorized the December 6 amendment. Rule 60 (b) requires a party to make a motion to amend, and there was no written motion filed. However, the husband did raise the issue orally at the May 2019 hearing, which occurred less than one year after the 2019 judgment entered. Since we conclude that rule 60 (a) provided a mechanism to amend here, we need not address whether in these circumstances rule 60 (b) (1) might also have done so.
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We are not persuaded by the wife's arguments to the contrary. The wife leans heavily on the judge's statements, at the May 2019 hearing, to the effect that the original 2019 judgment was based on the judge's "interpretation" of the agreement. But statements made during a hearing do not reflect the rationale of the court, as has been observed before. See, e.g., Gorrasi v. Manzella, 287 Mass. 165, 170 (1934) ("stray expressions" made during proceeding not "rulings of law"). It is a perilous enterprise to attempt to divine a judge's reasoning from statements made during oral argument. Here the judge's December 6 written rationale used terms such as "calculation error," and "incorrectly applied"; these terms do not suggest that the prior mistake was substantive.
Neither Gagnon, nor Lopes v. Peabody, 430 Mass. 305, 313 (1999), dictate a different result. In each of those cases the trial judge had declined to amend a judgment under rule 60 (a), and that decision was affirmed on appeal. This case involves the opposite situation, and the discussions in those cases of the types of errors that can be corrected under rule 60 (a) do not mandate reversal here.
Finally, we note that the wife is seeking a windfall here. She apparently agrees that the additional $4,561 in alimony that she seeks, and that the 2019 judgment ordered to be paid, was not in fact owed to her. Instead, the wife hangs her argument on the need for finality of judgments, a policy that is reflected in the rather strict rules that govern when judgments can be reopened. But while there are very significant policies favoring finality of judgments, we think rule 60 (a) allows for correction of a clear error in applying an unambiguous calculation -- an oversight -- in the circumstances here.
Amended judgment affirmed.