Nichole Warner v. Sean Warner

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2025 VT 70

No. 25-AP-080

Nichole Warner Supreme Court

On Appeal from
v. Superior Court, Bennington Unit,
Family Division

Sean Warner October Term, 2025

Howard A. Kalfus, J.

Alexander M. Dean and Rachel B. Strecker of Barr, Sternberg, Moss, Silver & Munson, P.C.,
Bennington, for Plaintiff-Appellee.

Brian K. Marthage, Bennington, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Cohen and Waples, JJ., and Tomasi, Supr. J.,
Specially Assigned

¶ 1. REIBER, C.J. The trial court issued a final divorce order that included language

awarding wife “50% of the total value of [husband’s] retirement accounts as of the date of

separation.” Wife moved to modify this provision several months later, arguing that the property-

division analysis in the body of the court’s decision reflected an intent to award her half the value

of those accounts as of the date of the parties’ final divorce hearing—not as of the date of their

separation. The court agreed and amended the final order under Vermont Rule of Civil Procedure

60(a), explaining that it was correcting the valuation date to conform to its intended division of the

marital property. Husband appeals, arguing that the court erred in: disregarding his response to

wife’s motion as untimely filed; failing to enforce the final order’s dispute-resolution procedure
as a bar to wife’s motion; and modifying the final order under Rule 60(a). We conclude that the

court did not err in amending the final order under Rule 60(a) and, because the rule authorizes the

court to make such corrections at any time on its own motion, any alleged errors in the handling

of wife’s motion are harmless. We therefore affirm.

I. Background

¶ 2. The parties were married in 2004; they separated in April 2023 and subsequently

initiated this divorce proceeding. The family division held a final divorce hearing over two days

in April 2024. On the first day of the hearing, the parties entered an agreement on parental rights

and responsibilities and parent-child contact for their minor children. The court approved the

agreement and adopted it as a final order. On the second day of the hearing—April 30, 2024—the

parties stipulated to the division of a portion of their marital assets and debts. The court then took

evidence on the remaining contested issues, which included the distribution of the parties’

retirement accounts and wife’s request for a spousal-maintenance award.

¶ 3. In May 2024, the court issued a written final order and decree of divorce. It

included the following factual finding based on the evidence admitted at the April 30 hearing:

“[Husband] has three retirement accounts with current balances of $739,699.30, $66,127.21, and

$50,813.09.” In dividing the marital property, the court weighed the relevant statutory factors.

See 15 V.S.A. § 751(a), (b) (explaining that family court must “equitably divide and assign”

parties’ property upon divorce, and in doing so “may consider all relevant factors,” including those

specified by statute). It held:

The marital estate has a total equity value of $1,330,516.17
including the equity in the marital home, the parties’ retirement
accounts, vehicles, bank accounts and debt. While [husband] alone
earned the first $35,000 of his considerable retirement funds, [wife]
contributed a sizeable portion of her personal injury settlement and
also liquidated two retirement accounts for the benefit of both
parties. Additionally, [wife] acted as the primary care provider for
the children and the home while [husband] worked full-time for
approximately fourteen of the nineteen years of the marriage. Thus,

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the court concludes that [the parties] contributed comparably to the
acquisition, preservation and appreciation of the marital estate.

Awarding each party the vehicles as they have divided them, their
own bank accounts and debts, awarding [wife] her retirement
account and then equally dividing the Robinhood investment
account, the value of all of [husband’s] retirement accounts and the
proceeds from the sale of the marital home after the payments
referenced above will result in [wife] being awarded approximately
48.67% of the marital estate and [husband] being awarded
approximately 51.33%. The court concludes that this is both fair
and equitable.

The court also granted wife’s request for spousal maintenance. It determined that an award with

a nine-year duration was appropriate, but credited husband for monthly payments he had already

made under the court’s temporary maintenance order.

¶ 4. The enumerated orders at the conclusion of the court’s decision provided, among

other things: “For the reasons stated above, it is ORDERED: . . . . [wife] is awarded 50% of the

total value of [husband’s] retirement accounts as of the date of separation.” The court also included

a procedure for the resolution of any disagreement arising between the parties in connection with

the final order. Under this provision, a good-faith attempt to negotiate a resolution, including

attending two sessions facilitated by a professional mediator, was required before either party

could file a post-judgment motion.

¶ 5. In June 2024, husband filed a timely motion to amend the final order under Vermont

Rule of Civil Procedure 59. See V.R.C.P. 59(e) (providing that motion to alter or amend may be

filed within twenty-eight days of entry of judgment). He argued that while the final order reflected

an intent to credit him for all of the maintenance payments he made under the temporary order, the

court overlooked several of those payments in establishing the duration of the award. Husband

therefore requested that the court amend the final order to credit him for those payments. The

court issued an order confirming that its intent had been to credit husband for all of his previous

maintenance payments and indicated that, unless wife disagreed with husband’s representation

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about the number of payments, the motion would be granted. Wife did not object, and the court

accordingly amended the final divorce order under Rule 59(e). Neither party appealed to this

Court. See V.R.A.P. 4(b)(5) (explaining that full time for direct appeal of final judgment begins

to run for all parties from entry of order disposing of timely Civil Rule 59 motion to alter or

amend).

¶ 6. On December 19, 2024, wife filed a motion for relief from judgment under Vermont

Rule of Civil Procedure 60. See Reporter’s Notes, V.R.C.P. 60 (explaining that Rule 60 “is

intended to provide the sole means of obtaining relief from a judgment after the time for a motion

under Rule 59 has run”). She argued that the 48.67%-51.33% property split referenced in the

findings and conclusions of the court’s final decision was not effectuated by its later-stated division

of the marital property. Wife reasoned that because husband’s retirement accounts were valued in

the order at the “date of separation” instead of the “date of final hearing,” the accounts had a lower

valuation under the earlier timeframe. This resulted in wife being awarded a smaller portion of

the total marital estate than intended by the court as reflected in the body of its final order. Wife

therefore claimed a mistake was made by the court not consistent with its intent and requested that

it amend the final order to divide the estate based upon valuations of husband’s three retirement

accounts as of the date of the final hearing.

¶ 7. On January 5, 2025, husband responded to wife’s Rule 60 motion. He asserted that

wife failed to follow the final order’s dispute-resolution procedure before filing her motion and

moved to dismiss it on this basis. He also opposed wife’s request on its merits, arguing no relief

was available under any of the rule’s provisions. Husband further contended that wife could have

sought timely relief by filing a motion under Rule 59—as he did with respect to the maintenance

award—or taking a direct appeal, but the time to pursue either of these options had lapsed.

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¶ 8. The family division granted wife’s motion on January 9, 2025. It observed that no

response had been filed within fourteen days and did not address the arguments raised in husband’s

January 5 filing. It then stated:

The court has reviewed the final divorce order and decree and it is
clear that it intended for the balances of $739,699.30, $66,127.21
and $50,813.09 to be evenly divided between the parties. Since
these were the balances of [husband’s] retirement accounts at the
time of the final hearing, the provision that those accounts be
divided as of the time of separation was a mistake.

On this basis, it amended the conclusion of the final order to award wife “50% of the total value

of [husband’s] retirement accounts as of the date of the final hearing, April 30, 2024.” In a

contemporaneous entry, the court denied husband’s motion to dismiss as moot on grounds that the

order had already been amended.

¶ 9. Husband moved under Rule 59 to strike the January 9 amendment and requested

that the court set a hearing on wife’s Rule 60 motion. He argued that because the court did not

hold a hearing, it had not made findings addressing the considerations necessary to support a grant

of relief under Rule 60(b). The court denied husband’s motion. It explained that this was not a

Rule 60(b) issue warranting a hearing because its modification of the final order instead fell within

the scope of Rule 60(a). The amendment did not impact the parties’ substantive rights, the court

explained, but instead simply modified the order to “accurately reflect[] the court’s decision on the

equitable distribution of property between the parties.” This appeal followed.

II. Analysis

¶ 10. Husband seeks reversal of the trial court’s January 2025 decision modifying the

final divorce order on three grounds. His primary contention is that—for several interrelated

reasons—the trial court erred in correcting the final order under Rule 60(a). He also argues that

the court erred in disregarding his response to wife’s Rule 60 motion as untimely filed because her

request for relief from judgment was a “dispositive motion” to which he had thirty, rather than

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fourteen, days to respond under Vermont Rule of Civil Procedure 7(b)(4). See V.R.C.P. 7(b)(4)

(providing that, unless court orders otherwise, “[a]ny party opposed to the granting of a written

dispositive motion . . . shall file a memorandum in opposition thereto not more than 30 days after

service of the motion” while “[a] memorandum in opposition to any nondispositive motion shall

be filed not more than 14 days after service of the motion”). Finally, he asserts that the court erred

in failing to enforce the final order’s dispute-resolution procedure as a bar to wife’s motion and

should have imposed the sanction of dismissal pursuant to Vermont Rule for Family Proceedings

18. See V.R.F.P. 18(e)(2) (providing that where party does not comply with mediation

requirement, court may “dismiss the action or any part of the action” as sanction). For the reasons

set forth below, we conclude that husband has not demonstrated that the court erred in amending

the final divorce order under Rule 60(a) and therefore do not reach his remaining arguments.

¶ 11. Rule 60(a) provides, in relevant part: “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 and after such notice, if

any, as the court orders.” V.R.C.P. 60(a). The rule is based on Federal Rule of Civil Procedure

60(a) and is identical to its federal analogue in all material respects. 1 Reporter’s Notes, V.R.C.P.

60 (“This rule is substantially identical to Federal Rule 60.”); Reporter’s Notes, V.R.C.P. 1

(providing that Vermont’s rules “are based on the Federal Rules of Civil Procedure”). It is also in

accord with our earlier case law, see Reporter’s Notes, V.R.C.P. 60, which recognized the

“discretionary power” of trial courts to “open, vacate and correct their own judgments . . . . to

relieve a party against the unjust operation of a record resulting from a mistake on the part of the

1 Federal Rule 60(a) states that “[t]he 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,” and “may do so on motion or on its own, with or without notice.” F.R.C.P. 60(a).
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court, rather than the fault, neglect or purposeful act of the parties.” Town of Putney v. Town of

Brookline, 126 Vt. 194, 201, 225 A.2d 388, 393 (1967).

¶ 12. This Court has had few opportunities to interpret Rule 60(a) since its adoption. In

1988, we briefly explained that it does not authorize trial courts to correct “error[s] in substantive

law.” Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 367, 543 A.2d 1320, 1322

(1988). In doing so, we cited to the First Circuit’s decision in Scola v. Boat Frances, R., Inc.,

pointing out the “narrowness” of the clerical-mistake doctrine under the “virtually identical federal

rule.” Id. at 367, 543 A.2d at 1399 (citing Scola, 618 F.2d 147, 152-53 (1st Cir. 1980)). The

following year, in State v. Champlain Cable Corp., we again relied on federal jurisprudence in

explaining that Rule 60(a) “envisions giving relief from minor errors,” while “errors that affect

substantial rights of the parties” fall beyond its reach. 147 Vt. 436, 439, 520 A.2d 596, 598-99

(1986) (citing Warner v. City of Bay St. Louis, 526 F.2d 1211, 1212 (5th Cir. 1976); 11 C. Wright

& A. Miller, Federal Practice and Procedure § 2854, at 149 (1973)), partially superseded by rule

as recognized in In re A.B., 2025 VT 12, ¶ 2, __ Vt. __, 336 A.3d 437 (mem.).

¶ 13. Here, husband argues that if the court made a mistake in awarding wife half the

value of his retirement accounts as of the date of the parties’ separation instead of as of the date of

the final hearing, this was not a “clerical mistake” or “error . . . arising from oversight or omission”

subject to correction under Rule 60(a), but instead an error of substantive law. Relying primarily

on Champlain Cable, he contends that the error identified by the court was one that affected his

substantial rights, and therefore relief was not available under Rule 60(a). Relatedly, husband

asserts that the court erred in denying his request for a hearing on wife’s motion, because, in his

view, the court was required to make findings “quantify[ing] the impact of the amended judgment”

on his substantial rights before reaching a decision. Finally, husband urges us to conclude that

wife should be prohibited from using Rule 60(a) in place of a timely Rule 59 motion or direct

appeal.

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¶ 14. Where Rule 60(a) applies, the trial court has discretion in determining whether to

enter a corrected judgment, and we review only for an abuse of that discretion. See V.R.C.P. 60(a)

(providing that clerical errors “may be corrected by the court” (emphasis added)); N.E. Phoenix

Co. v. Grand Isle Veterinary Hosp., Inc., 2022 VT 10, ¶ 18, 216 Vt. 227, 275 A.3d 134 (explaining

that “plain, ordinary meaning” of word “may” “connotes discretion”); see also Putney, 126 Vt. at

201, 225 A.2d at 393 (describing trial court’s authority to correct judgment as “discretionary

power” pursuant to which “[r]elief may be granted or withheld as justice of the cause may

require”). The predicate question—whether the error the trial court identified here was subject to

correction under Rule 60(a)—is an issue of law that we review without deference. State v.

Amidon, 2008 VT 122, ¶ 16, 185 Vt. 1, 967 A.2d 1126 (“The interpretation of procedural rules is

a question of law which we review de novo.”).

¶ 15. “In interpreting a court rule, we employ tools similar to those we use in statutory

construction.” In re VSP-TK / 1-16-18 Shooting, 2019 VT 47, ¶ 25, 210 Vt. 435, 217 A.3d 560

(quotation omitted). We thus look primarily to the rule’s “plain language and the purpose it was

designed to serve.” Amidon, 2008 VT 122, ¶ 16. Where our rule is substantively “identical to its

federal counterpart, we look to federal cases interpreting the federal rule for guidance.” Id.; see

Reporter’s Notes, V.R.C.P. 1 (explaining that “[f]ederal cases interpreting the Federal Rules are

an authoritative source for the interpretation of identical provisions of the Vermont Rules”).

“[R]eliance on federal case law” is “particularly appropriate” where, as here, this Court has had

limited opportunity to construe the Vermont rule. State v. Villar, 2017 VT 109, ¶ 9, 206 Vt. 236,

180 A.3d 588.

¶ 16. Husband essentially contends that the distinction between “clerical mistakes” and

errors that are not correctable under Rule 60(a) depends on the magnitude of the proposed

correction’s impact on the parties’ obligations under the order. There is no evidence in the record

as to the value of husband’s retirement accounts on the date of the parties’ separation, but husband

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asserts that the change to the valuation date would result in him having to pay wife an additional

$100,000. In his view, the trial court was required to hold a hearing to assess the impact of the

contemplated correction on his financial obligations and, based on that evidence, determine

whether the change was one that would impact his substantial rights.

¶ 17. Federal courts, however, overwhelmingly take a different approach to Federal Rule

60(a). The magnitude of the correction’s impact on the parties does not determine the availability

of relief; rather, “the scope of a court’s authority under Rule 60(a) to make corrections to an order

or judgment is circumscribed by the court’s intent when it issued the order or judgment.” Sartin

v. McNair L. Firm PA, 756 F.3d 259, 264, 266 (4th Cir. 2014). Under this view, the “basic

distinction” between clerical mistakes and errors that cannot be corrected under Rule 60(a) “is that

the former consist of blunders in execution,” while the latter “consist of instances where the court

changes its mind,” either because it made a substantive error in its original determination, “or

because on second thought it has decided to exercise its discretion in a manner different from the

way it was exercised in the original determination.” Blanton v. Anzalone, 813 F.2d 1574, 1577

n.2 (9th Cir. 1987) (quotation omitted); see Rivera v. PNS Stores, Inc., 647 F.3d 188, 194 (5th Cir.

2011) (“A Rule 60(a) motion can only be used to make the judgment or record speak the truth and

cannot be used to make it say something other than what originally was pronounced.” (quotation

omitted)); Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995) (explaining that Rule 60(a)

“permits only a correction for the purpose of reflecting accurately a decision that the court actually

made”).

¶ 18. The analysis of whether a judgment is subject to correction under federal Rule 60(a)

thus “focuses on what the court originally intended to do.” Blanton, 813 F.2d at 1577; Bainbridge

v. Gov. of Fla., 75 F.4th 1326, 1333-34 (11th Cir. 2023) (describing trial court’s original intent as

“touchstone” of Rule 60(a) analysis). If this analysis reveals that “the flaw lies in the translation

of the original meaning to the judgment, then Rule 60(a) allows a correction.” United States v.

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Griffin, 782 F.2d 1393, 1397 (7th Cir. 1986). The federal cases also clarify that—contrary to

husband’s argument—where an error is appropriately classified as clerical under this test, its

correction necessarily has no impact on the parties’ substantial rights because the correction merely

conforms the judgment to the trial court’s intended disposition of those rights. See Dudley v.

Penn-Am. Ins. Co., 313 F.3d 662, 65 (2d Cir. 2002) (Sotomayor, J., concurring) (“The heart of the

distinction between an error that is correctable under Rule 60(a) and one that is not is that a

correction under Rule 60(a) cannot alter the substantive rights of the parties, but rather may only

correct the record to reflect the adjudication that was actually made.”). Thus, “[w]here the record

makes it clear that an issue was actually litigated and decided but was incorrectly recorded,” the

trial court can correct the judgment pursuant to Rule 60(a), even if “doing so materially changes

the parties’ positions and leaves one party to the judgment in a less advantageous position.”

Rivera, 647 F.3d at 199; see also Griffin, 782 F.2d at 1397 (explaining that Rule 60(a) “applies to

all clerical miscues, trivial and important alike”).

¶ 19. With this understanding of the federal case law, we turn to Vermont’s Rule 60(a)

and husband’s related arguments. We first consider his contention that the error the court identified

here was substantive. As husband points out, while “[a]ssets are normally valued for distribution

as of the day of the final divorce hearing, regardless of whether they were acquired during or after

the parties separated,” Golden v. Cooper-Ellis, 2007 VT 15, ¶ 10, 181 Vt. 359, 924 A.2d 19, the

trial court “has broad discretion to equitably allocate marital property based on all relevant

factors,” and, “[i]n allocating certain assets . . . may find relevant the date of the parties’

separation.” MacKenzie v. MacKenzie, 2017 VT 111, ¶¶ 31-32, 206 Vt. 244, 180 A.3d 855

(explaining that court “must consider for distribution all property owned by the parties” and value

it “as closely as possible to the date of the final divorce hearing” but “[h]ow the court allocates the

marital property is an entirely different matter”). But it does not follow—as husband argues—that

the error the court identified here was inconsistent with the decision it actually made. In exercising

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its “broad discretion to consider the statutory factors and fashion an appropriate order,” the court

“provide[d] a clear statement as to what was decided and why.” Turner v. Turner, 2004 VT 5, ¶ 7,

176 Vt. 588, 844 A.2d 764 (mem.). The court’s original decision demonstrates that it intended to

exercise its discretion to award wife half the value of husband’s retirement accounts as of the final

divorce hearing, creating the 48.67%-51.33% property split it deemed equitable based on the

statutory factors.2 The court’s task was to “equitably divide” the marital estate, see 15 V.S.A.

§ 751, and the property division it determined was equitable was expressly predicated on wife

receiving half of the value of husband’s retirement accounts as of the April 30 hearing. The court’s

expressly intended division of the marital estate, as reflected in the final order, could be effectuated

only if based on the April 30 values. The mistaken valuation date was thus not a choice consistent

with the court’s decisional judgment, but instead a “blunder[] in execution” of the type federal

courts recognize as correctable under Rule 60(a). See Blanton, 813 F.2d at 1577 n.2 (quotation

omitted).

¶ 20. Husband suggests, however, that our decision in Champlain Cable marked a

deviation from the federal case law. In Champlain Cable, the trial court entered judgment against

the defendant employer under the Vermont Fair Employment Practices Act (VFEPA), providing

that the State “may recover its costs of action” and that all other requests for relief not specifically

addressed in the order were denied. Id. at 437, 520 A.2d at 597. The State later moved for an

award of attorney’s fees, arguing that the phrase “costs of action” encompassed those expenses.

The trial court granted the State’s motion, explaining that its intention had been to allow attorney’s

fees through the final judgment order’s reference to “costs.” Employer appealed, arguing, among

2 To the extent husband suggests that the Rule 60(a) analysis should differ here because
the final divorce order was also signed by an assistant judge, we do not reach this contention
because it was raised for the first time in his reply brief. See Vasseur v. State, 2021 VT 53, ¶ 15,
215 Vt. 224, 260 A.3d 1126 (“Our law is clear that issues not raised in an appellant’s original brief
may not be raised for the first time in a reply brief.” (quotation omitted)).
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other things, “that its decision not to take an appeal from the $70,500 judgment might well have

been different had it been confronted with an award for attorney’s fees in addition to the judgment

on the merits.” Id. at 438, 520 A.2d at 598.

¶ 21. Crucially, our analysis in Champlain Cable began with the observation that—in

sharp contrast to the circumstances here—“[a]lthough the court later stated it had intended to allow

attorney’s fees in its ruling, there was no way to derive that meaning from the language of the

order.” Id. at 438, 520 A.2d at 598 (explaining that term “costs of action” ordinarily does not

encompass attorney’s fees and observing that prior VFEPA case held that attorney’s fees “are a

litigation expense, not a ‘cost’ ” (quoting State v. Whitingham Sch. Bd., 140 Vt. 405, 409, 438

A.2d 394, 397 (1981))). We then turned to the State’s alternative argument—that the trial court

could have granted the motion under Rule 60(a). Id. at 439, 520 A.2d at 598. We again looked to

federal case law and, relying on that authority, explained:

Rule 60(a) envisions giving relief from minor errors; errors that
affect substantial rights of the parties are outside the scope of the
rule. See [Warner, 526 F.2d at 1212]; 11 C. Wright & A. Miller,
Federal Practice & Procedure § 2854, at 149 (1973). If a court does
not render judgment, or renders one that is imperfect or improper, it
has no power to remedy any such error or omission by treating it as
a clerical mistake. See Recile v. Ward, 496 F.2d 675, 680 (5th Cir.
1974).

Id. at 598-99. Secondly, we noted that the grant of a motion to correct a clerical error under Rule

60(a) could not extend the time to appeal the underlying judgment, and the employer “would thus

have been foreclosed from taking an appeal from the underlying judgment had it desired to do so

following a Rule 60(a) grant of attorney’s fees.” Id. at 439, 520 A.2d at 599. But see In re A.B.,

2025 VT 12, ¶¶ 2-3 (recognizing that language in Champlain Cable regarding time to appeal was

superseded by amendments to Vermont Rule of Appellate Procedure 4). We held that “[u]nder

the circumstances of this case, the award of $61,222.07 in attorney’s fees and investigation costs

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was not a minor error to be corrected under the auspices of Rule 60(a).” Champlain Cable, 147

Vt. at 439, 520 A.2d at 599.

¶ 22. This case is fundamentally unlike Champlain Cable. There is a substantial

difference between construing the intent of a court that employs the word “costs” and comparing

passages in the written analysis in a family court’s final divorce order with its conclusion.

Moreover, Champlain Cable’s language that “Rule 60(a) envisions giving relief from minor

errors,” 147 Vt. at 439, 520 A.2d at 598-99, cites Warner, a federal decision that does speak to our

view here. In Warner, the Fifth Circuit distinguished between “merely clerical errors” of the type

often “made in transcribing or recording the judgment,” and scenarios where the trial court

“allegedly made an error of law, but the judgment did state what was intended”—in which case,

the mistake “is not within the limited type of error encompassed by Rule 60(a).” Warner, 526 F.2d

at 1212-13 (explaining that under Rule 60(a), “the court may correct errors, created by mistake,

oversight, or omission, that cause the . . . judgment to fail to reflect what was intended at the time

of trial”). The focus on the trial court’s original intent in the federal cases we have looked to is in

harmony with our decision here. Champlain Cable did not involve a circumstance where the trial

court’s stated intent was, in fact, supported by the language of its original order. Given this

threshold distinction, our analysis in Champlain Cable has no bearing on the application of Rule

60(a) to the instant case.3

¶ 23. The trial court appropriately declined to take additional evidence, concluding that

Rule 60(a) authorized it to correct a clerical error in its original decision to reflect its

3 Husband also compares this case to Maille v. Kirkpatrick, No. 23-AP-111, 2023 WL
6786095 (Vt. Oct. 13, 2023) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/
documents/eo23-111.pdf. Maille is an unpublished panel decision and, like Champlain Cable, it
did not involve a scenario where an aspect of the trial court’s final order could be read to conflict
with its otherwise-expressed intent. As a result, it has no persuasive value here. See V.R.A.P.
33.1(d) (explaining that an unpublished panel decision “may be cited as persuasive authority but
is not controlling precedent”).
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contemporaneous intent as clearly laid out in that same decision. As the court explained, this

modification did not alter the parties’ substantial rights—it merely amended the order to accurately

reflect its intended adjudication of those rights. The court was not required to hold an evidentiary

hearing on the motion or, as husband contends, make factual findings in support of the conclusion

that the alteration did not impact his substantive rights. The operative question for the court was

what it “originally intended.” See Blanton, 813 F.2d at 1577. Under the circumstances of this

case, any findings the court could have made regarding the difference between the value of

husband’s retirement accounts as of the date of separation as opposed to the value of those accounts

as of the final hearing could have no bearing on its analysis.

¶ 24. Finally, husband argues that the court’s error effectively allowed wife to utilize

Rule 60(a) in lieu of a timely motion under Rule 59 or direct appeal from the judgment. In support,

he points to our case law surrounding Rule 60(b)(6), “the so-called catchall provision,” Hill v.

Springfield Hosp., 2023 VT 23, ¶ 20, 218 Vt. 64, 297 A.3d 504, that allows the trial court to relieve

a party from a final judgment for any reason beside those set forth in the first five sections of Rule

60(b), provided the request is “filed within a reasonable time,” V.R.C.P. 60(b). It is true that “Rule

60(b)(6) may not substitute for a timely appeal or provide relief from an ill-advised tactical

decision or from some other free, calculated, and deliberate choice of action,” but is instead

“intended to accomplish justice in extraordinary situations that warrant the reopening of final

judgments after a substantial period of time.” Riehle v. Tudhope, 171 Vt. 626, 627, 765 A.2d 885,

887 (2000) (mem.). Thus, to determine the “limits on when relief is available” under Rule

60(b)(6), courts “must be concerned about the certainty and finality of judgments so that litigation

can reach an end.” Richwagen v. Richwagen, 153 Vt. 1, 4, 568 A.2d 419, 421 (1989). Husband

asks that we graft these same considerations onto the Rule 60(a) analysis. We reject this invitation

as inconsistent with the plain language and the purpose of Rule 60(a).

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¶ 25. The issue here is trial court’s clerical error. While motions under Rule 60(b)(6)

must be filed “within a reasonable time,” a trial court may correct a clerical error under Rule 60(a)

“at any time.” V.R.C.P. 60. The authority granted by Rule 60(a) thus “does not depend on whether

a motion for relief is made within a reasonable time or within one year of judgment, as is required

where the relief must be sought under Rule 60(b).” Scola, 618 F.2d at 152. The plain language of

the rule therefore forecloses husband’s argument. See In re VSP-TK, 2019 VT 47, ¶ 25 (explaining

that in interpreting court rule, we consider its plain language and “do not supply words which have

been omitted”).

¶ 26. In reaching this conclusion, we do not diminish the importance of finality of

judgments in this or any other context. Rather, we recognize that the drafters of the rules weighed

those considerations and concluded that if there is a “clerical mistake” within the meaning of Rule

60(a), the goal of allowing the party to receive the relief the court intended to provide necessarily

outweighs the goals of finality and repose. The various provisions of Federal Civil Rules 59 and

60 governing the modification of judgments “weigh the value of finality and repose against the

various grounds that a party may have for moving to alter a judgment,” and “place varying

limitations on the time within which such motions may be made.” In re Frigitemp Corp., 781 F.2d

324, 327 (2d Cir. 1986). The rationale for the provision that a Rule 60(a) motion may be made at

any time “is that the judgment simply has not accurately reflected the way in which the rights and

obligations of the parties have in fact been adjudicated .” Id. “In those circumstances, the goals of

finality and repose are outweighed by the equitable goal of allowing a party who has in fact

established [her] right to relief to receive that relief.” Id.; see Lowe v. McGraw-Hill Cos., 361

F.3d 335, 342 (7th Cir. 2004) (noting that there is no deadline for Rule 60(a) relief and observing

that “clerical errors within the rule’s meaning are not the kind of error that invites reliance, because

they do not deceive either party concerning the content of the judgment; and so a deadline is not

important to protect reliance”). The same is true of the Vermont corollary.

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¶ 27. Husband has shown neither an error of law nor an abuse of discretion in the court’s

analysis under Rule 60(a). This places his remaining arguments beyond the scope of our review.

Though different in substance, these two contentions are identical in thrust: husband asserts that

the court’s decision to modify the final order must be reversed because, as a matter of procedure,

the court erred in considering the arguments raised in wife’s December motion for relief from

judgment. Specifically, husband argues that because the court mistakenly concluded that his

opposition was untimely, it did not consider his arguments in opposition to modification—

including the argument that the mediation requirement barred the motion and required its

dismissal. Although wife’s motion alerted the court to the valuation-date discrepancy, Rule 60(a)

authorized the court’s correction of a clerical mistake “at any time of its own initiative,” and the

court retained the power to correct what it identified as a mistake independent of wife’s motion.

As a result, there was no prejudice to husband and any error alleged in the handling of wife’s

motion is necessarily harmless. See Sumner v. Sumner, 2004 VT 45, ¶ 14, 176 Vt. 452, 852 A.2d

611 (applying harmless-error standard to family court’s ruling on post-judgment motions in

divorce).

Affirmed.

FOR THE COURT:

Chief Justice

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