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Appeals Court Draws Further Distinction Between A Clerical Error And Substantive Error In A Judgment

In the recent case Keohan v. Whalen, the parties’ original divorce judgment provided that alimony would be calculated based on the difference of the parties’ earned income by applying the following percentages:

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.

The divorce judgment also provided the following: “For example, and solely for purposes of illustration, (a) if [husband] earns $325,000, and [wife] has no earned income, the alimony would be $325,000 times 33% = $107,250 in monthly installments of $8.937.50; and (b) if [husband] earns $375,000 and [wife] has no earned income, the alimony would be $350,000 times 33% = $115,000 in monthly installments of $9,625.”

Under the formula of the divorce judgment, alimony for the year 2018 should have been $92,684, which is 35% of the husband’s income of $264,812 (the wife’s income at the time was treated as $0). However, on February 28, 2019, the Probate and Family Court judge issued a modification judgment to the parties’ divorce, which provided that the husband should have paid the wife $97,184 in alimony for 2018. The husband neither appealed nor sought to amend the modification within 10 days, nor did he pay the alimony amount ordered in the modification judgment. As a result, the wife filed a complaint for contempt.

During the contempt hearing approximately 9 months later, the husband explained that alimony was calculated improperly in the modification judgment. The judge stated that she had a different interpretation of the alimony chart in the divorce judgment, believing that the alimony should be 37% of the first $200,000 of the husband’s income, then 35% of his income between $200,000 and $250,000, and so on, but she indicated she would review the language of the divorce judgment. The judge then amended the modification judgment by reducing the amount of alimony that the husband was ordered to pay for 2018 from $97,184 to $92,682.

The wife appealed, arguing there was no basis under the Rules of Civil Procedure for the judge to have amended the modification as she did. She claimed that the judge’s error in the original modification judgment was one of interpretation, not a clerical error, and therefore could not be corrected under  Rule 60(a).

Rule 60(a) provides that “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 …” Case law draws a distinction between errors that are clerical and those that are substantive and only the former are correctable. To determine the difference, the cases often ask whether the judgment that entered was consistent with the judge’s original intent. If it was, then the judgment cannot be corrected.

Here, the Appeals Court found that the modification judgment did not reflect the judge’s intent because she simply intended to follow the formula set by the divorce judgment, as indicated in her rationale. Additionally, the order amending the modification judgment referred to the mistake as a “calculation error,” and the Appeals Court found that some deference is due to the judge’s own view of her original intent. Further, Rule 60(a) allows judges to correct not only clerical errors, but also errors arising from an oversight. As such, the Appeals Court found the mistake was not substantive and affirmed the amendment to the modification judgment.

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