The Vermont Supreme Court has affirmed a family court’s decision to amend a final divorce order, ruling that changing the valuation date for a husband’s retirement accounts was a permissible correction of a clerical error under procedural rules, rather than an impermissible substantive change.
The ruling clarifies the distinction between minor mistakes that can be corrected years after a final judgment and substantive errors that must be caught through timely appeals or specific post-judgment motions.
The Retirement Account Discrepancy
The case centers on the divorce between Nichole and Sean Warner. In May 2024, the Bennington Superior Court, Family Division, issued a final order dividing their marital property. The court’s detailed analysis indicated an intent to achieve an equitable split of roughly 48.67% for the wife and 51.33% for the husband, based on evidence presented at the final hearing in April 2024.
However, the final enumerated order contained a crucial inconsistency: it awarded the wife “50% of the total value of [husband’s] retirement accounts as of the date of separation.”
Several months later, in December 2024, the wife filed a motion seeking relief under Vermont Rule of Civil Procedure 60. She argued that using the separation date valuation resulted in her receiving less than the equitable share intended by the court, as the retirement accounts had grown between the separation date and the final hearing date (April 30, 2024). She requested the court amend the order to use the final hearing date for valuation, which aligned with the overall property split calculated in the body of the decree.
The husband contested the motion, arguing, among other things, that the wife failed to adhere to the final order’s mandatory dispute-resolution procedure (requiring mediation) before filing. He also contended that the requested change was a substantive modification, meaning the time limit for a standard appeal or a Rule 59 motion had long passed.
Court Relies on Rule 60(a) for Clerical Correction
On January 9, 2025, the family court agreed with the wife. It found that the use of the “date of separation” in the final conclusion was a “mistake,” as the valuation figures used ($739,699.30, $66,127.21, and $50,813.09) were the balances as of the final hearing date, April 30, 2024. The court amended the order to reflect the April 30 valuation date, explaining that the change merely made the order “accurately reflect[] the court’s decision.”
The husband appealed this amendment, focusing his challenge on the court’s authority to use Vermont Rule of Civil Procedure 60(a).
Rule 60(a) allows a court to correct “Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission… at any time.”
The Supreme Court, in an opinion written by Chief Justice Reiber, closely examined the rule, relying heavily on its federal counterpart, as Vermont’s rule is nearly identical. The Court emphasized that Rule 60(a) is designed to correct “blunders in execution”—errors in transcription or recording—not to allow a judge to change their mind about the substance of the decision already made.
The husband argued that changing the valuation date substantially affected his financial rights (potentially requiring him to pay an additional $100,000) and thus constituted an error of substantive law, which Rule 60(a) cannot fix.
Intent, Not Magnitude, is Key
The Supreme Court rejected the husband’s argument, adopting the prevailing federal interpretation: the availability of relief under Rule 60(a) is determined by the court’s original intent, not the magnitude of the financial change resulting from the correction.
The Court found clear evidence of the trial court’s intent within the original written decision. The detailed findings explicitly calculated a property split based on an equitable division supported by the April 30 retirement account values. The differing valuation date in the final conclusion was therefore a mistake in recording that intent, not a mistake in the substance of the equitable division itself.
“The court’s expressly intended division of the marital estate… could be effectuated only if based on the April 30 values,” the opinion stated. “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 distinguished this situation from its prior holding in *Champlain Cable Corp.*, where the court attempted to retroactively include attorney’s fees under the ambiguous term “costs”—an action that required interpretation beyond what was explicitly recorded. Here, the court’s true intent was derivable directly from the written analysis.
Procedural Challenges Deemed Harmless
Because the Supreme Court determined the amendment was a proper exercise of the court’s authority under Rule 60(a)—which allows corrections “at any time of its own initiative”—it found the husband’s other procedural arguments moot or harmless.
The husband argued the trial court erred by:
1. Disregarding his response to the wife’s motion as untimely (the court acted on its own initiative, bypassing the motion process).
2. Failing to enforce the mediation requirement before the wife filed her motion (again, the court corrected the record independently).
The Court noted that Rule 60(a) grants the court power to correct clerical mistakes sua sponte (on its own motion) at any time. Since the trial court had the inherent power to make the correction regardless of the procedural posture of the wife’s filing, any alleged errors in processing the wife’s motion were deemed harmless.
Finally, the Court dismissed the husband’s attempt to treat this as a Rule 60(b) issue, which requires motions to be filed within a “reasonable time.” Rule 60(a) has no such time limit because clerical errors do not invite reliance by the parties concerning the judgment’s content.
The Supreme Court affirmed the trial court’s decision to amend the divorce order.