Intent-Centered Use of Vermont Rule 60(a) to Correct Divorce Property Judgments: Commentary on Warner v. Warner, 2025 VT 70

Intent-Centered Use of Rule 60(a) to Correct Divorce Property Judgments:
Commentary on Nichole Warner v. Sean Warner, 2025 VT 70

I. Introduction

Warner v. Warner, 2025 VT 70, is a significant Vermont Supreme Court decision at the intersection of civil procedure and family law. It clarifies the scope of Vermont Rule of Civil Procedure 60(a) and aligns Vermont practice with the dominant federal “intent-based” understanding of what counts as a clerical mistake in a judgment.

The case arose from a divorce decree in which the family division’s narrative reasoning clearly contemplated a particular equitable distribution of the marital estate—roughly 48.67% to wife and 51.33% to husband, based on retirement-account balances as of the final hearing date. Yet the decretal paragraph at the end of the order mistakenly awarded wife 50% of husband’s retirement accounts “as of the date of separation,” which yielded a materially smaller share for wife.

Months after the Rule 59 deadline and the appeal period had expired, wife sought correction. The family division amended the decree under Rule 60(a), changing the valuation date from separation to the date of the final hearing. Husband appealed, arguing that:

  • The change was not a “clerical mistake” but a substantive change to property rights, outside Rule 60(a).
  • The court erred procedurally by:
    • treating his opposition as untimely (using a 14-day instead of a 30-day deadline), and
    • failing to enforce a contractual mediation / dispute-resolution clause in the divorce order that purportedly barred wife’s motion.

The Supreme Court affirmed. It held that a discrepancy between the court’s clearly expressed intent in the body of an order and the operative decretal language can be corrected under Rule 60(a), even if doing so substantially affects the dollar amounts owed. The correct test is not “how big is the financial impact?” but “does the correction make the judgment accurately reflect what the court decided at the time?”.

The Court also held that, because Rule 60(a) empowers the court to make such corrections “at any time” on its own initiative, any missteps in the handling of wife’s motion were harmless. The opinion has broad consequences for:

  • divorce and property-division practice in the family division, and
  • civil practice generally whenever relief is sought from a written judgment that arguably misstates the court’s prior decision.

II. Factual and Procedural Background

A. The Marriage and the Divorce Case

Nichole and Sean Warner married in 2004, separated in April 2023, and then pursued divorce. The family division held a final divorce hearing over two days in April 2024.

  • Day one: The parties reached agreement on parental rights and responsibilities and parent–child contact for their minor children. The court approved these and entered them as a final order.
  • Day two (April 30, 2024): The parties stipulated to division of some marital assets and debts. Remaining contested issues included:
    • Distribution of husband’s retirement accounts, and
    • Wife’s request for spousal maintenance.

B. The Original Final Divorce Order (May 2024)

In its written decision, the family division:

  1. Found the value of husband’s three retirement accounts, expressly “based on the evidence admitted at the April 30 hearing”:
    • $739,699.30
    • $66,127.21
    • $50,813.09
    These figures are implicitly as of the final hearing date.
  2. Performed an equitable-distribution analysis under 15 V.S.A. § 751(a), (b):
    • It found the total marital estate equity to be $1,330,516.17 (home equity, retirement accounts, vehicles, bank accounts, and debts).
    • It emphasized:
      • Husband’s earnings funding the retirement accounts.
      • Wife’s contributions of a personal injury settlement and liquidation of two retirement accounts to benefit both parties.
      • Wife’s role as primary caregiver and homemaker for most of the 19-year marriage.
    • It explicitly concluded the parties had “contributed comparably” to acquisition, preservation, and appreciation of the marital estate.
    • Using the April 30 retirement values, the court found that giving:
      • each party the vehicles they had divided,
      • each their own bank accounts and debts,
      • wife her own retirement account,
      • an equal division of the Robinhood investment account,
      • an equal division of all of husband’s retirement accounts, and
      • an equal division of the net proceeds from sale of the marital home,
      would result in wife receiving about 48.67% of the marital estate and husband 51.33%.
    • The court expressly deemed this split “both fair and equitable.”
  3. Set spousal maintenance:
    • It awarded wife spousal maintenance for nine years.
    • It intended to credit husband for all temporary maintenance payments he had already made under a prior temporary order.
  4. Included decretal language inconsistent with the analysis:

    At the conclusion, under “ORDERED” provisions, the court wrote:

    “[Wife] is awarded 50% of the total value of [husband’s] retirement accounts as of the date of separation.”

    This language uses a different valuation date (separation) from the date implicit in the findings (final hearing). Because retirement accounts had presumably grown between separation and the final hearing, measuring at separation reduced the amount wife would receive—undermining the intended 48.67/51.33 split.

  5. Added a dispute-resolution procedure:
    • The order required any party with a dispute under the final order to:
      • attempt good-faith negotiation, and
      • attend two mediation sessions with a professional mediator
      before filing a post-judgment motion.

C. Early Post-Judgment Activity: Husband’s Rule 59 Motion

In June 2024, husband filed a timely motion to amend the final order under Vermont Rule of Civil Procedure 59(e), limited to the spousal-maintenance credit.

  • He argued the court had mistakenly failed to credit several temporary maintenance payments when setting the nine-year duration and corresponding obligations.
  • The family division confirmed it had intended to credit him for all temporary payments.
  • Because wife did not dispute husband’s accounting, the court granted the Rule 59(e) motion and amended the final order accordingly.
  • No party appealed. Under V.R.A.P. 4(b)(5), the appeal period for the final judgment runs from the order disposing of a timely Rule 59 motion. That period then expired without an appeal.

D. Wife’s Later Rule 60 Motion and the January 2025 Amendment

On December 19, 2024—months after the Rule 59 and appeal deadlines—wife filed a motion for relief from judgment, citing Vermont Rule of Civil Procedure 60.

  • Wife’s argument:
    • The findings and analysis in the decision clearly contemplated a 48.67%–51.33% split based on retirement-account values as of the final hearing (April 30, 2024).
    • Using the “date of separation” valuation date in the decretal paragraph meant that:
      • husband’s retirement accounts were treated as worth less,
      • wife’s actual share of the entire marital estate fell below the intended 48.67%,
      • the written order did not reflect the property division the court had actually decided upon.
    • She characterized this as a “mistake” inconsistent with the court’s intent and asked the court to amend the order to divide husband’s retirement based on the balances as of the final hearing date.
  • Husband’s January 5, 2025 response:
    • He moved to dismiss, arguing wife had violated the order’s mediation/dispute-resolution clause by filing the motion without first mediating.
    • He contended that Rule 60 provided no relief on the merits:
      • The alleged error was substantive, not clerical.
      • Wife should have filed a timely Rule 59 motion or direct appeal if she believed the decree was wrong.
    • He invoked the response times in V.R.C.P. 7(b)(4), arguing he had 30 days to respond to this “dispositive” motion.
  • Family division’s January 9, 2025 order:
    • The court treated wife’s motion as unopposed, noting that “no response had been filed within fourteen days” (apparently viewing the motion as nondispositive).
    • Without addressing husband’s opposition, the court granted wife’s request, stating:
      “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.”
    • The decree was amended so that wife would receive:
      “50% of the total value of [husband’s] retirement accounts as of the date of the final hearing, April 30, 2024.”
    • In a separate entry, the court denied husband’s motion to dismiss as moot because the order had already been amended.
  • Husband’s Rule 59 motion to strike the amendment:
    • Husband requested a hearing and argued:
      • The court had failed to make findings necessary for Rule 60(b) relief.
      • Relief under Rule 60(b) would require a showing of extraordinary circumstances, which had not been addressed.
    • The family division denied the motion, explaining that:
      • It had acted under Rule 60(a), not Rule 60(b).
      • The amendment was merely a correction to make the order accurately reflect the intended equitable distribution; it did not change the substantive rights as originally adjudicated.

Husband then appealed to the Vermont Supreme Court.

E. Issues on Appeal

Husband presented three main arguments:

  1. The trial court erred in using Rule 60(a) to change the valuation date:
    • The alleged mistake was not “clerical” but an error (if any) of substantive judgment affecting his substantial rights.
    • The court should have held a hearing and made findings about how the amendment affected his rights.
    • Wife should not be allowed to obtain relief under Rule 60(a) after failing to pursue timely Rule 59 relief or a direct appeal.
  2. The trial court erred in disregarding his opposition as untimely:
    • He argued wife’s motion was a “dispositive motion” under V.R.C.P. 7(b)(4), allowing 30 days to respond, not 14.
  3. The court erred in failing to enforce the divorce order’s mediation/dispute-resolution clause:
    • He contended that under V.R.F.P. 18(e)(2), noncompliance with mandatory mediation could be sanctioned by dismissal of the motion.

III. Summary of the Supreme Court’s Opinion

The Vermont Supreme Court affirmed the amended divorce order.

The Court’s key holdings can be summarized as follows:

  1. Definition and scope of “clerical mistakes” under Rule 60(a):
    • Vermont Rule 60(a) is materially identical to Federal Rule 60(a), and federal interpretations are strongly persuasive.
    • Under the prevailing federal approach, the central question is:
      Did the written judgment accurately capture what the court actually decided at the time, or is there a “blunder in execution” that mis-transcribed the decision?
    • “Clerical mistakes” include errors in executing or recording the court’s intended decision, even when the correction has substantial financial implications.
    • What Rule 60(a) does not permit is using the rule to change the court’s mind or correct an error of substantive law when the original judgment accurately reflected that (possibly erroneous) decision.
  2. Application to the Warner decree:
    • The court’s findings and analysis show it intended to divide husband’s retirement accounts equally based on their values as of the final hearing.
    • The reference to “date of separation” in the decretal paragraph was inconsistent with that intent and therefore a correctable “blunder in execution.”
    • Amending the judgment to use the April 30 values did not change the parties’ substantive rights as the court had adjudicated them; it merely made the written judgment conform to that adjudication.
  3. Champlain Cable and earlier Vermont law:
    • The Court distinguished State v. Champlain Cable Corp., 147 Vt. 436, 520 A.2d 596 (1986), where the trial court later asserted an intent that could not be reconciled with the actual language of the original judgment.
    • Champlain Cable does not bar corrections under Rule 60(a) when the original record clearly reveals that the judgment language failed to reflect the court’s intent.
  4. No hearing or quantification of impact required:
    • Because the decisive issue under Rule 60(a) is the court’s original intent, there was no need for an evidentiary hearing on the dollar-value impact of the change.
    • If an error is truly clerical under the intent-based test, its correction by definition does not alter the parties’ substantive rights; it only implements what they were supposed to be all along, even if this materially shifts the financial bottom line.
  5. Rule 60(a) is not constrained by Rule 60(b)(6) finality principles:
    • Rule 60(b)(6) relief is limited, prospective in nature, and cannot substitute for a timely appeal or correct deliberate litigation choices.
    • By contrast, Rule 60(a) expressly allows correction of clerical mistakes “at any time.”
    • The Court refused to import Rule 60(b)(6)’s “extraordinary circumstances” and timeliness constraints into Rule 60(a).
  6. Harmless error regarding procedural handling of wife’s motion:
    • Even assuming errors in:
      • treating husband’s opposition as late, or
      • failing to enforce the mediation clause,
      there was no prejudice to husband.
    • Rule 60(a) permitted the court to correct the clerical mistake sua sponte (“on its own initiative”) at any time; wife’s motion merely brought the discrepancy to the court’s attention.
    • Because the court had this independent authority, any procedural infirmities in the handling of wife’s motion were necessarily harmless.

IV. Detailed Analysis

A. The Core Question: What Is a “Clerical Mistake” Under Rule 60(a)?

Vermont Rule of Civil Procedure 60(a) 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 of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”

Key features:

  • It covers:
    • “clerical mistakes,” and
    • “errors arising from oversight or omission.”
  • Corrections may be:
    • on the court’s own initiative, or
    • on a party’s motion.
  • Critically, they may be made “at any time,” with such notice as the court deems appropriate.

The rule is “substantially identical” to Federal Rule 60(a), and the Court therefore applies the normal Vermont approach: when state and federal rules are materially the same, federal case law interpreting the federal rule is a primary guide. (Amidon; In re VSP-TK; V.R.C.P. 1 Reporter’s Notes.)

B. Federal Precedents: The Intent-Based Test

Federal courts largely converge on a central principle: Rule 60(a) corrections turn on the court’s original intent, not on how large or small the impact of the change may be.

The Supreme Court in Warner synthesizes several federal decisions:

  • Sartin v. McNair Law Firm P.A., 756 F.3d 259 (4th Cir. 2014):
    • Rule 60(a) authority is “circumscribed by the court’s intent when it issued the order or judgment.”
  • Blanton v. Anzalone, 813 F.2d 1574 (9th Cir. 1987):
    • Identifies the “basic distinction”:
      • Rule 60(a) addresses “blunders in execution” (e.g., transcription or drafting errors that misstate the actual decision), whereas
      • Errors outside Rule 60(a) occur when “the court changes its mind” or made a substantive error in the original decision itself.
    • The crucial inquiry is whether the judgment, as signed, said what the court meant at the time.
  • Rivera v. PNS Stores, Inc., 647 F.3d 188 (5th Cir. 2011):
    • Rule 60(a) may 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.”
    • If the record makes clear that an issue:
      • “was actually litigated and decided but was incorrectly recorded,”
      the court may correct it even if that “materially changes the parties’ positions and leaves one party in a less advantageous position.”
  • Truskoski v. ESPN, Inc., 60 F.3d 74 (2d Cir. 1995):
    • Rule 60(a) “permits only a correction for the purpose of reflecting accurately a decision that the court actually made.”
  • United States v. Griffin, 782 F.2d 1393 (7th Cir. 1986):
    • If “the flaw lies in the translation of the original meaning to the judgment, then Rule 60(a) allows a correction.”
  • Dudley v. Penn-Am. Ins. Co., 313 F.3d 662 (2d Cir. 2002) (Sotomayor, J., concurring):
    • Stresses that a correction under Rule 60(a) “cannot alter the substantive rights of the parties,” but that is because substantive rights are defined by what the court decided—and the correction merely aligns the written record with that original adjudication.
  • Warner v. City of Bay St. Louis, 526 F.2d 1211 (5th Cir. 1976):
    • Distinguishes “merely clerical errors” from situations in which the court “allegedly made an error of law, but the judgment did state what was intended.” The latter are beyond Rule 60(a) and must be addressed by appeal or other rules.

Taken together, these decisions generate the core test the Vermont Supreme Court adopts:

If the written judgment fails to reflect what the court actually intended and decided at the time—due to oversight, omission, or drafting error—Rule 60(a) permits correction, even if the correction substantially affects the magnitude of the parties’ obligations.

The inquiry is not “does this change the dollar figure a lot or a little?”; it is “does the change simply make the judgment say what the court originally decided, or does it change that decision?”.

C. Vermont Precedents Harmonized: Putney, Greenmoss, and Champlain Cable

Prior Vermont case law on Rule 60(a) was sparse. The Court surveys and harmonizes it with the federal intent-based approach.

1. Town of Putney v. Town of Brookline

In Town of Putney v. Town of Brookline, 126 Vt. 194, 225 A.2d 388 (1967), before Rule 60’s adoption, the Court recognized the trial court’s “discretionary power” to open, vacate, and correct judgments:

“to relieve a party against the unjust operation of a record resulting from a mistake on the part of the court, rather than the fault, neglect or purposeful act of the parties.”

Warner notes that Rule 60(a) codifies this power, reinforcing that the focus is on mistakes by the court in embodying its decision in the record.

2. Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc.

Greenmoss Builders, 149 Vt. 365, 543 A.2d 1320 (1988), briefly recognized that Rule 60(a) does not permit correction of “error[s] in substantive law.” Warner embraces this, consistent with federal law: if the judgment accurately reflects a (substantively) mistaken legal conclusion, Rule 60(a) cannot be used to “fix” that; the remedy is via appeal or other mechanisms, not by rewriting history.

3. State v. Champlain Cable Corp.

Champlain Cable, 147 Vt. 436, 520 A.2d 596 (1986), is the linchpin of husband’s argument and thus receives careful treatment.

In that case:

  • The State prevailed under the Vermont Fair Employment Practices Act, and the judgment allowed recovery of “costs of action.”
  • Later, the State moved for attorney’s fees, arguing they were included in “costs.”
  • The trial court granted the motion, explaining it had intended to include attorney’s fees.
  • This Court reversed, holding:
    • “Costs of action” did not include attorney’s fees, especially given prior Vermont authority to the contrary.
    • There was “no way to derive” the trial court’s purported intent to award attorney’s fees from the language of the original judgment.
    • Rule 60(a) “envisions giving relief from minor errors; errors that affect substantial rights of the parties are outside the scope of the rule.”
    • Adding $61,222.07 in fees and costs was not a “minor error” correctable under Rule 60(a).

In Warner, husband seized upon Champlain Cable’s phrasing—especially “minor errors” and “substantial rights”—to argue that:

  • Any error that materially changes his obligations (he claimed an approximate $100,000 impact) is necessarily outside Rule 60(a), and
  • The trial court should have held a hearing to “quantify” how his rights would be affected before deciding whether the error was “clerical” or “substantive.”

The Supreme Court rejects this reading and confines Champlain Cable to its facts:

  • In Champlain Cable, “there was no way to derive” the claimed intent from the text of the judgment. The trial court’s after-the-fact assertion was essentially an attempt to change the earlier ruling, not to correct a misrecording of it.
  • The case involved a situation in which the original order, fairly read, had denied the relief later sought (attorney’s fees). The later grant could therefore not be a mere correction of an “oversight or omission” in drafting.
  • The “minor errors” formulation in Champlain Cable was rooted in federal sources (Warner v. City of Bay St. Louis, Wright & Miller), which themselves distinguish between:
    • clerical/transcription errors that thwart the intended judgment, and
    • errors of law or judgment that are reflected in the judgment and thus not correctable under Rule 60(a).

Warner reconciles its prior language with the federal intent-based approach by clarifying:

The “minor error” concept refers to the nature of the error—did the judgment fail to reflect the decision?—not the magnitude of the financial consequences of correcting it.

In Warner itself, by contrast:

  • The body of the divorce order clearly shows the court intended a 48.67%–51.33% split predicated on retirement-account values as of the final hearing.
  • The phrase “as of the date of separation” in the decretal paragraph directly conflicts with that intention.
  • This is precisely the sort of “blunder in execution” that federal courts treat as a Rule 60(a) issue.

The Court also notes that portions of Champlain Cable dealing with appeal deadlines have been superseded by later amendments to V.R.A.P. 4, as recognized in In re A.B., 2025 VT 12, further limiting its reach.

D. Why the Wrong Valuation Date Was a Rule 60(a) Clerical Error

Husband argued that even if the decree’s valuation date was mistaken, it was a mistake of substantive choice—the kind of legal judgment about which valuation date to use in divorce—rather than a clerical misstatement. Vermont law does give the family division discretion regarding valuation dates.

  • Golden v. Cooper-Ellis, 2007 VT 15, ¶ 10, 181 Vt. 359, 924 A.2d 19:
    • “Assets are normally valued for distribution as of the day of the final divorce hearing.”
  • MacKenzie v. MacKenzie, 2017 VT 111, ¶¶ 31–32, 206 Vt. 244, 180 A.3d 855:
    • The court must consider for distribution “all property owned by the parties,”
    • Value it as close as possible to the final hearing, but
    • Has “broad discretion” in allocation and may consider separation date as relevant to how property is distributed.

From this, husband reasoned that choosing “date of separation” over “date of final hearing” is an exercise of that discretion, inherently substantive, and thus not remediable under Rule 60(a).

The Supreme Court draws a critical distinction:

  • Yes, the choice of valuation date is normally a substantive decision—but
  • In this case, the court had already made that decision in favor of the final hearing date as shown in its findings and equitable-distribution analysis.

The Court emphasizes:

  • The family division provided a “clear statement as to what was decided and why” (Turner v. Turner, 2004 VT 5, ¶ 7):
    • It computed the marital estate and percentages explicitly using the April 30 balances.
    • It then declared that this distribution produced an approximately 48.67%–51.33% split that was “fair and equitable.”
  • The equitable division the court “concluded was equitable was expressly predicated on wife receiving half of the value of husband’s retirement accounts as of the April 30 hearing.”
  • That intended distribution could be realized only if the April 30 values were used.

Accordingly:

“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).”

The Court also rejects husband’s call for an evidentiary hearing to determine the actual dollar impact (which he claimed would be about $100,000). Under the intent-based test:

  • Evidence about the change in financial impact is irrelevant to whether an error is clerical.
  • Once the record shows that the written judgment misstates the decision that was actually made, the error is clerical regardless of how large the correction will be in monetary terms.

Therefore, the family division was not required to:

  • take additional evidence, or
  • make findings quantifying the dollar impact of switching valuation dates.

Its task was simply to determine, from the existing record, what it “originally intended.” It did so and found that the “date of separation” clause was an oversight inconsistent with that intent.

E. Rule 60(a) and the Finality of Judgments: Why Rule 60(b) Principles Do Not Apply

Husband further argued that allowing wife to seek Rule 60(a) relief months after the Rule 59 deadline (and after the appeal period had run) improperly substituted Rule 60 for a timely appeal—contravening Vermont case law under Rule 60(b)(6) that emphasizes finality.

Vermont’s Rule 60(b)(6) (“any other reason justifying relief”) is indeed narrowly construed:

  • Riehle v. Tudhope, 171 Vt. 626, 765 A.2d 885 (2000) (mem.):
    • Rule 60(b)(6) “may not substitute for a timely appeal or provide relief from an ill-advised tactical decision,” and
    • is reserved for “extraordinary situations” warranting reopening of final judgments.
  • Richwagen v. Richwagen, 153 Vt. 1, 568 A.2d 419 (1989):
    • Rule 60(b)(6)’s availability must be balanced against the need for certainty and finality.
  • Hill v. Springfield Hospital, 2023 VT 23, 218 Vt. 64, 297 A.3d 504:
    • Recognizes Rule 60(b)(6) as a “catchall” provision subject to demanding standards.

The Supreme Court acknowledges these finality concerns but holds that they do not govern Rule 60(a) because the rules are textually and functionally different:

  • Rule 60(b) applies when a party seeks to change the effect of a judgment going forward based on specific grounds (mistake, newly discovered evidence, fraud, etc., plus subsection (6)’s “other reasons”).
  • Rule 60(b) motions must be filed:
    • within one year for some grounds, and
    • “within a reasonable time” for all grounds.
  • Rule 60(a), in contrast:
    • deals with the accuracy of how an already-made decision is recorded,
    • allows correction “at any time,” and
    • is not constrained by the “reasonable time” requirement.

The Court, echoing the Second Circuit in In re Frigitemp Corp., 781 F.2d 324 (2d Cir. 1986), explains the rationale:

  • The various timing rules in Rules 59 and 60 “weigh the value of finality and repose against the various grounds” for alter-or-amend motions.
  • The absence of any deadline for Rule 60(a) reflects a specific policy judgment:
    • When the written judgment does not accurately reflect what the court actually decided, the judgment “simply has not accurately reflected” the adjudication of rights.
    • In that situation, “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.”
  • As the Seventh Circuit observed in Lowe v. McGraw-Hill Cos., 361 F.3d 335, 342 (7th Cir. 2004), clerical errors “are not the kind of error that invites reliance, because they do not deceive either party concerning the content of the judgment.”

Thus, the Court holds:

Rule 60(a) is not a means to revisit deliberate substantive decisions after the time for appeal has passed; it is a mechanism to ensure the written judgment faithfully reflects the decision already made. Because of that narrow scope, it may properly be invoked (or used sua sponte by the court) at any time.

Wife’s failure to file a Rule 59 motion or direct appeal is therefore irrelevant to the availability of Rule 60(a) relief. The key question is whether the written decree properly embodied the decision the court had already reached—not whether wife diligently pursued appellate review of that decision.

F. Harmless Error: Why the Court Did Not Reach the Procedural Issues

Having upheld the January 2025 amendment under Rule 60(a), the Supreme Court declined to address husband’s remaining procedural arguments, finding any errors harmless.

Husband’s procedural complaints:

  • Response time under V.R.C.P. 7(b)(4):
    • He argued wife’s Rule 60 motion was “dispositive,” giving him 30 days to respond.
    • The family division appeared to treat it as “nondispositive,” applying a 14-day deadline and noting, incorrectly, that he had not opposed it.
  • Failure to enforce mediation/dispute-resolution clause:
    • The order required mediation before filing a post-judgment motion.
    • He argued that, under V.R.F.P. 18(e)(2), the court should have sanctioned wife’s noncompliance by dismissing her motion.

The Supreme Court reasons:

  • Rule 60(a) expressly allows the court to correct clerical errors “at any time of its own initiative.”
  • Wife’s motion did no more than draw the court’s attention to an inconsistency that the court had the independent power to correct, even without any motion.
  • Once the Court concludes that:
    • the valuation-date discrepancy was a Rule 60(a) clerical error, and
    • the correction was permissible and appropriate,
    it follows that:
    • the court’s power to act did not depend on whether wife complied with mediation or
    • whether husband’s opposition was timely under Rule 7(b)(4).
  • Thus, any misapplication of procedural rules in handling wife’s motion did not affect the outcome, because the court could (and would) have made the same correction sua sponte.

Under Vermont’s harmless-error doctrine (Sumner v. Sumner, 2004 VT 45, ¶ 14, 176 Vt. 452, 852 A.2d 611), an error that causes no prejudice to the appellant does not warrant reversal. That standard is satisfied here: even had the trial court correctly treated husband’s response as timely and confronted the mediation argument head-on, its independent Rule 60(a) authority would have supported the same result.

G. Implications for Family Division Practice

Warner has important practical implications for lawyers and judges in divorce and other family cases:

  1. Heightened importance of coherent findings and conclusions:
    • The family division’s detailed explanation of its equitable-distribution analysis was crucial. It allowed both the trial court and the Supreme Court to reconstruct the court’s original intent and demonstrate that the decretal paragraph was inconsistent with that intent.
    • Well-structured findings and clear explanation of the property division serve as the “anchor” that permits later Rule 60(a) corrections when drafting errors creep into the decretal language.
  2. Retirement-account valuation dates remain discretionary—but must be internally consistent:
    • Courts retain broad discretion to consider separation dates or other valuation dates when equity requires.
    • However, once a court has set a valuation date and structured its reasoning around that date, the decretal paragraph must track it. Inconsistencies are subject to correction under Rule 60(a).
  3. Timing of post-judgment relief strategies:
    • Parties should still:
      • use Rule 59(e) for quick corrections or re-argument of substantive decisions, and
      • file timely appeals to challenge substantive legal or factual determinations.
    • However, where there is a mismatch between the court’s reasoning and the formal language of the judgment, practitioners should now think in terms of Rule 60(a), which:
      • is not subject to a short deadline, and
      • can be invoked even long after the appeal period has expired—so long as the record clearly shows the intended decision was different from what the judgment says.
  4. Limited effect of dispute-resolution clauses on the court’s inherent powers:
    • While mediation clauses remain enforceable and important, they cannot strip the court of its independent authority under Rule 60(a) to correct its own clerical mistakes.
    • Parties cannot, by contractual language in a divorce order, prevent the court from ensuring that its judgments accurately record the decisions it made.
  5. Risk management for parties relying on “beneficial” clerical errors:
    • A party who benefits from a drafting error (as husband initially did from the separation-date reference) now has diminished ability to argue that time alone has insulated that error from correction.
    • So long as the record shows the error is clerical, the court can correct it “at any time,” even if the correction is economically significant.

V. Complex Concepts Simplified

1. Rule 59(e) vs Rule 60(a) vs Rule 60(b)

  • Rule 59(e) – Motion to Alter or Amend Judgment:
    • Must be filed within 28 days of entry of judgment.
    • Can be used to:
      • correct clear errors of law,
      • present newly discovered evidence (in narrow circumstances),
      • clarify or reconsider substantive rulings.
    • Filing a timely Rule 59 motion extends the time for taking an appeal (V.R.A.P. 4(b)(5)).
  • Rule 60(a) – Clerical Mistakes:
    • Applies to “clerical mistakes” or “errors arising from oversight or omission” in judgments or the record.
    • Focuses on whether the written judgment accurately reflects what the court actually decided.
    • Cannot be used to change the court’s mind or fix a substantive legal or factual error that was part of the original decision.
    • May be invoked by motion or by the court on its own, “at any time.”
    • Does not extend the time to appeal the underlying judgment (subject to modern V.R.A.P. 4 rules).
  • Rule 60(b) – Relief from Judgment:
    • Provides six specific grounds:
      • (1) mistake, inadvertence, surprise, or excusable neglect;
      • (2) newly discovered evidence;
      • (3) fraud, misrepresentation, or misconduct;
      • (4) void judgment;
      • (5) satisfaction, release, or discharge of judgment; or
      • (6) “any other reason justifying relief.”
    • Strict time limits:
      • One year for (1), (2), and (3).
      • “Within a reasonable time” for all, especially (6).
    • Subsection (6) is a narrow “catchall,” not a substitute for appeal.

2. “Clerical Mistake” vs Substantive Error

  • Clerical Mistake:
    • Arises in the process of recording or transcribing the decision, not in making the decision itself.
    • Examples:
      • Typographical errors in dates or numbers.
      • Failure to include a term that was clearly stated on the record.
      • Inconsistency between the written judgment and earlier findings or oral pronouncement.
    • Correctable under Rule 60(a).
  • Substantive Error:
    • Occurs when the court’s underlying legal or factual decision is itself arguably wrong:
      • Misinterpretation of law,
      • Erroneous weighing of evidence,
      • Unfair exercise of discretion.
    • The written judgment properly reflects the (possibly faulty) decision.
    • Cannot be corrected under Rule 60(a); the remedy is appeal, Rule 59, or certain Rule 60(b) grounds.

3. Valuation Date in Divorce Property Division

  • Default practice:
    • Marital assets are generally valued “as of the day of the final divorce hearing” (Golden).
  • Court’s discretion:
    • Under 15 V.S.A. § 751, the court has “broad discretion” to equitably divide property.
    • In some cases, it may reasonably use a separation date or other reference point when equity so requires (MacKenzie).
  • What Warner adds:
    • Once the court has clearly anchored its analysis to a particular valuation date, and its findings demonstrate that its equitable division depends on that date, a conflicting valuation date in the decretal paragraph is a clerical inconsistency—subject to correction under Rule 60(a).

4. Dispositive vs Nondispositive Motions (Rule 7(b)(4))

  • Dispositive motion:
    • One that, if granted, disposes of a claim or entire case (e.g., motion for summary judgment, motion to dismiss).
    • Typically allows a 30-day response period under V.R.C.P. 7(b)(4), unless the court orders otherwise.
  • Nondispositive motion:
    • Addresses intermediate or procedural issues, not case-ending relief.
    • Generally carries a 14-day response deadline under the same rule.
  • In Warner:
    • Husband argued wife’s Rule 60 motion was “dispositive,” giving him 30 days.
    • The trial court appeared to treat it as “nondispositive,” applying 14 days.
    • The Supreme Court deemed any misclassification harmless because the court could have corrected the error sua sponte under Rule 60(a) regardless of the motion’s characterization.

5. Harmless Error on Appeal

  • Appellate courts will not reverse a trial court’s decision based on an error that did not affect the outcome or prejudice the complaining party.
  • In Sumner v. Sumner, the Court applied the harmless-error standard to post-judgment motions in divorce cases.
  • In Warner, because the trial court’s Rule 60(a) authority was independent of wife’s motion:
    • Any mistake in treating husband’s response as late or not enforcing mediation requirements did not change the result.
    • Thus those alleged errors were harmless and did not justify reversal.

VI. Broader Impact on Vermont Law

Although Warner arises from a divorce proceeding, its doctrinal impact extends across Vermont’s civil docket.

A. Clear Adoption of the Federal Intent-Based Rule 60(a) Standard

The decision firmly aligns Vermont with the dominant federal interpretation of Rule 60(a). Going forward, trial and appellate courts in Vermont are to analyze Rule 60(a) issues by asking:

  1. What did the court actually intend and decide at the time the original judgment was entered?
  2. Does the written judgment accurately reflect that decision?
  3. If not, is the discrepancy reasonably attributable to oversight, omission, or transcription/drafting error?

If the answer to (3) is yes, Rule 60(a) authorizes correction at any time, whether initiated by a party or by the court itself.

B. Enhanced Role of the Record in Determining Intent

Warner highlights the importance of:

  • Detailed, consistent written findings and conclusions.
  • Clear articulation of calculations, percentages, and valuation dates.
  • Transcripts of oral pronouncements (in other cases) when written orders are later drafted.

When a later dispute arises, the question will be: does the judgment deviate from what the decision-making record (findings, oral rulings, etc.) shows the court to have decided? Practitioners should be attentive to building a record from which intent is clear.

C. Limits: No Use of Rule 60(a) to Re-Open or Re-Argue Substantive Decisions

The flip side of Warner’s broad reading of Rule 60(a) is that:

  • Parties cannot use Rule 60(a) to:
    • relitigate valuation disputes they lost initially,
    • change property percentages, or
    • raise new legal theories that were not adopted in the original decision.
  • When the judgment faithfully reflects a decision that may be substantively flawed, the proper route remains:
    • timely Rule 59 motion,
    • direct appeal, and in limited cases,
    • Rule 60(b) relief.

D. Contractual Clauses vs. Court’s Inherent Authority

Though the Court did not squarely decide whether a mediation clause could ever bar Rule 60(a) relief, Warner strongly suggests:

  • Parties cannot contractually eliminate the court’s Rule 60(a) power to correct its own judgments.
  • Dispute-resolution provisions may govern the parties’ conduct and justify sanctions, but they cannot prevent the court from correcting a clerical error once identified.

E. Appellate Practice: Preservation and Reply Briefs

The Court notes that it declined to consider an argument husband raised for the first time in his reply brief (relating to an assistant judge’s signature) under the standard rule that issues not raised in the opening brief are waived (Vasseur v. State, 2021 VT 53, ¶ 15).

This is a reminder that:

  • All substantive arguments, especially those challenging the legality of a judgment, must be properly preserved in the trial court and presented in the appellant’s initial brief.
  • Reply briefs are for responding to appellee’s arguments, not for introducing new theories.

VII. Conclusion

Warner v. Warner is an important clarification of Vermont law on post-judgment corrections. Its main contribution is the explicit adoption of an intent-centered understanding of Rule 60(a):

  • When a written judgment fails, due to oversight or drafting error, to reflect the decision the court actually made, the error is “clerical” within the meaning of Rule 60(a).
  • Such errors may be corrected “at any time,” including long after the Rule 59 and appeal deadlines have passed, even if the correction materially changes the parties’ financial obligations.
  • This power is distinct from the more constrained relief available under Rule 60(b)(6) and does not undermine the general finality of judgments, because it does not reopen or change substantive decisions—it merely ensures that the record truthfully embodies them.

In the family-law context, Warner reaffirms the importance of clear, coherent findings and conclusions in divorce decrees, especially in property-division cases involving complex financial assets. It also signals that neither party can permanently benefit from a drafting mistake that contradicts the court’s documented intent.

Going forward, Vermont practitioners should:

  • Read judgments holistically, spotting inconsistencies between analysis and decretal language.
  • Recognize when Rule 60(a), rather than Rule 59 or Rule 60(b), is the appropriate vehicle for correction.
  • Understand that mediation or dispute-resolution clauses do not displace the court’s inherent power to correct its own clerical errors.

In aligning Vermont Rule 60(a) with federal practice, Warner strengthens the integrity of judicial judgments: parties are entitled not just to a fair decision, but to a written decree that accurately records that decision—and the courts retain the authority to ensure that this is so.

Case Details

Year: 2025
Court: Supreme Court of Vermont

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