Summary 2005 WY 143

Summary of Decision issued November 17, 2005

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Case Name: Glover v. Crayk

Citation: 2005 WY 143

Docket Number: 04-174

Appeal from the District Court of Laramie County, Honorable Thomas T.C. Campbell, Judge

Representing Appellant (Plaintiff): Donald A. Cole, Cheyenne, Wyoming

Representing Appellee (Defendant): John J. Metzke and Billie LM Addleman of Hirst & Applegate, Cheyenne, Wyoming

Date of Decision: November 17, 2005

Issues: Whether the district court erred in modifying the formula for determining the Appellee's proportionate share of Appellant's military pension as set forth in the property settlement agreement and divorce decree.

Holdings: Neither the parties nor the district court specify under what authority Appellee's motion was brought or granted. Appellee's motion was styled a "Motion to Amend and/or Modify Decree of Divorce." Such a motion, however, could not be entertained by the district court because, once their divorce became final, the district court no longer had the authority to modify the property division provided by the divorce decree. The district court, however, retained the authority to clarify an ambiguous property settlement provision provided in the original decree in order to effectuate the provision. The appropriate manner to handle such a clarification is by way of a W.R.C.P. 60(a) motion to correct a clerical mistake. Pursuant to W.R.C.P. 60(a), a court may correct a clerical mistake "at any time of its own initiative. Because of the patent ambiguity in the divorce decree, the district court would have been well within its discretion to sua sponte invoke Rule 60(a). It appears from the record and the order on appeal that the district court approached the proceedings as a request for clarification of an ambiguous divorce decree, thereby implicitly invoking Rule 60(a).

When reviewing a district court's application of Rule 60(a), the Court employs a two-part process. The first question that must be answered is whether the correction or clarification of a judgment relates to a "clerical mistake." If so, the district court's order is reviewed to ascertain whether it clarified or modified the original judgment.

In the present action, the proceeding properly related to clarifying a clerical mistake. The language of the original divorce decree must be reviewed to determine whether the court correctly clarified the decree. To do this, the language of the decree is to be construed within the context in which it was written. The Court may look to the surrounding circumstances, the subject matter, and the purpose of the instrument to ascertain the intent of the parties at the time it was made. The divorce decree in the case at hand provided for the division of Appellant's military retirement benefits. The ambiguity in the decree is the absence of a formula to be applied in calculating the amount Appellee is entitled to from Appellant's retirement benefits. The district court accepted Appellee's argument that her one-half should be calculated pursuant to the "time rule." The "time rule" is computed by multiplying 50% times a fraction, the numerator of which is the number of months of marriage during Appellant's creditable military service and the denominator of which is the total number of months of Appellant's creditable military service. The result is the percentage of Appellant's disposable retired pay to which Appellee is entitled. This formula would allow Appellee to realize a benefit from promotions and pay increases Appellant may have received following the divorce up until the time of his retirement. However, the language of the divorce decree states that Appellee's entitlement is limited to "one-half (1/2) of the sum that accrued in [Appellant's] retirement fund during the first seventeen (17) years of [Appellant's] military career." That this language prohibits Appellee from benefiting from any income increases he received after the seventeen years. Thus, Appellee's formula is inconsistent with the language of the divorce decree. Under these circumstances, the district court erred in adopting Appellee's formula.

The divorce decree does not provide for Appellee to benefit from any promotions and pay increases Appellant received after seventeen years of military service. The order of the district court is reversed, and this matter is remanded to the district court for further proceedings consistent with this opinion.

J. Golden delivered the opinion for the court.