{ "contract_version": "1.0.0-draft.1", "data_as_of": "2026-08-06T02:50:22Z", "record": { "authority_type": "opinion", "body": "North Dakota Supreme Court", "canonical_key": { "content_hash": "46b905ed308e8bb0", "source": "courtlistener" }, "citation_aliases": [ { "confidence": 0.7, "display_value": "Axtman v. Axtman", "normalized_value": "axtman-v-axtman-2b0a85e4", "scheme": "case-name", "source_id": "src:v1:us:opinion:courtlistener" } ], "court": "North Dakota Supreme Court", "created_at": "2026-08-06T02:50:22Z", "heading": "Axtman v. Axtman", "identity_state": "complete", "jurisdiction": "us-state-nd", "kind": "authority_record", "record_id": "rec:v1:15159a4b-491f-7301-899e-4b084550449b", "schema_version": "1.0.0-draft.1", "slug": "axtman-v-axtman-2b0a85e4", "title": "Axtman v. Axtman" }, "verification": { "active_defect_ids": [], "as_of": "2026-08-05", "computed_at": "2026-08-06T02:50:22Z", "currentness": "2020-01-01", "grade": "B", "input_sha256": "46b905ed308e8bb085b6720e046f1c73a3121445abc02c135d9f4165c8cb384f", "kind": "verification", "limitations": [ "Text was ingested from CourtListener public full text.", "Not yet matched byte-for-byte to an official court/reporter PDF or HTML edition.", "Treat as researchable public law text with an open official-verification task." ], "official_receipts": [], "policy_version": "grade-policy-v1-bulk-courtlistener", "reason": "CourtListener public full text captured with content hash; not yet matched to an official court or reporter edition.", "reason_code": "courtlistener_public_full_text_unverified_against_official_reporter", "schema_version": "1.0.0-draft.1", "source_classes": [ "independent_structured_corpus" ], "verified_at": null, "version_id": "ver:v1:fe488fdc-9e6d-7e4e-8d1f-eccbc13361cf" }, "version": { "current_through": "2020-01-01", "decision_date": "2020-01-01", "effective_date": null, "finality_status": "public_full_text_unverified", "kind": "authority_version", "normalization_warnings": [ "Bulk CourtListener import; official reporter comparison pending." ], "normalized_text_sha256": "46b905ed308e8bb085b6720e046f1c73a3121445abc02c135d9f4165c8cb384f", "observed_at": "2026-08-06T02:50:22Z", "parser_id": "bulk-courtlistener-v1", "parser_version": "1", "primary_text": "Filed 6/2/20 by Clerk of Supreme Court\n\n IN THE SUPREME COURT\n STATE OF NORTH DAKOTA\n\n 2020 ND 114\n\nAmy M. Axtman, Plaintiff and Appellee\n v.\nMyron A. Axtman, Defendant and Appellant\n\n No. 20190300\n\nAppeal from the District Court of Stark County, Southwest Judicial District,\nthe Honorable Dann E. Greenwood, Judge.\n\nAFFIRMED.\n\nOpinion of the Court by VandeWalle, Justice.\n\nDiane F. Melbye, Dickinson, ND, for plaintiff and appellee.\n\nDaniel J. Nagle, Mandan, ND, for defendant and appellant.\n Axtman v. Axtman\n No. 20190300\n\nVandeWalle, Justice.\n\n Myron Axtman appealed from an amended judgment distributing the\nparties' marital property. Myron Axtman argues the district court abused its\ndiscretion in amending the judgment, and the court amended judgment under\nN.D.R.Civ.P. 60(a) without providing proper notice. We affirm.\n\n I\n\n This is an appeal from a divorce action that was commenced in 2017. The\nonly issue was division of the parties' marital property. Included as part of the\nparties' marital property was Myron Axtman's Hess pension. The pension\nbenefits commenced on February 1, 2015, at which time Myron Axtman began\nreceiving $2,891.60 per month.\n\n The district court issued findings of fact and conclusions of law and\nordered judgment. The judgment stated Myron Axtman's Hess pension account\n\"shall be divided equally between the parties as of the date of commencement\nof this action for divorce\" through a qualified domestic relations order (QDRO).\nIf Myron Axtman's Hess pension account could not be equally divided by a\nQDRO, the court suggested the issue should be dealt with by motion under\nN.D.R.Civ.P. 60.\n\n Myron Axtman filed a proposed QDRO on March 26, 2019. The proposed\nQDRO did not address the pension payments Myron Axtman received during\nthe pendency of the divorce. The same day, Amy Axtman filed an objection to\nthe proposed QDRO, alleging the proposed QDRO did not conform to the\njudgment. The court scheduled a status conference to discuss the QDRO with\nthe parties. At the status conference, the court stated its intent was for the\njudgment to equally divide the pension payments received by Myron Axtman\nduring the pendency of the divorce:\n\n Sometimes in these things problems arise that the Court didn't\n consider at the time. There's unintended consequences, but in part\n\n 1\n we have an issue with the fact that our legislature has decided that\n division of assets occurs effective the date of the commencement of\n the action; whereas, up until that time, the Court generally was\n making divisions as of the date of trial, and try as I may to keep\n that in mind, sometimes it's difficult to do so. And the thing that I\n didn't contemplate in my decision was the fact that considerable\n time had passed between the date of the commencement of the\n action and the date of the decision in the context of the Hess plan.\n That's one issue. It's possible that, in making the decision, the\n Court is intending that the division should occur in an equal\n fashion. The question is whether or not the Court considered what\n had passed before the date of the decision.\n If we were making the decision as of the date -- I mean, the\n evaluation and the division as of the date of the trial, I would have\n had in mind that any existing checking accounts and the like\n would be divided and those types of things that had passed in the\n meantime would come out in the wash. But the division of the\n checking accounts and savings accounts and the like was of the\n date of the division as well, and as a result, there probably was no\n similarity between the value of those accounts and the date of trial\n as there was on the date of the separation or commencement of\n suit.\n\nAt the conclusion of the status conference, the court informed the parties it\nintended to sign the QDRO, and if Amy Axtman wanted to further address the\nissue of the pension payments Myron Axtman received during the pendency of\nthe divorce, she would have to do so by separate motion.\n\n Amy Axtman filed a motion for relief from judgment under N.D.R.Civ.P.\n60(b)(3) and (6). The district court amended the judgment under N.D.R.Civ.P.\n60(a). In its order, the court declared it failed to take into consideration\nN.D.C.C. § 14-23-05, and its failure to do so resulted in a mistake arising from\noversight or omission justifying relief under Rule 60(a). The court further\ndeclared it was the court's intent that Amy Axtman be awarded half of the\npension benefit payments received by Myron Axtman from the commencement\nof the divorce action onward. The district court issued an amended judgment\nawarding Amy Axtman half of the pension benefit payments received by Myron\nAxtman from the date of commencement of the divorce action.\n\n 2\n After the district court amended judgment, Myron Axtman filed a\n\"Motion to Vacate Order on Motion for Relief from Judgment.\" Myron Axtman\nargued the court's use of Rule 60(a) to amend the judgment was improper, and\nthe court did not notify the parties it was amending the judgment pursuant to\nRule 60(a) on its own. The district court denied Myron Axtman's motion. In its\norder, the court declared Myron Axtman had been provided with sufficient\nnotice that it was correcting a mistake in the judgment under Rule 60(a), that\nthe mistake in the judgment was from oversight or omission, and further\ndiscussed its intent for Amy Axtman to receive half the pension benefit\npayments from the commencement of the divorce action.\n\n II\n\n Under N.D.R.Civ.P. 60(a): \"The court may correct a clerical mistake or a\nmistake arising from oversight or omission whenever one is found in a\njudgment, order, or other part of the record. The court may do so on motion or\non its own, with notice.\" In Fargo Glass & Paint Co. v. Randall, 2004 ND 4, ¶\n5, 673 N.W.2d 261 (quoting First W. Bank v. Wickman, 513 N.W.2d 62, 64\n(N.D.1994)), we explained our standard for applying this rule:\n\n This Court has clearly held that Rule 60(a) is not a substitute for\n an appeal on the merits.\n\n \"Generally, Rule 60(a) can only be used to make\n the judgment or record speak the truth and cannot be\n used to make it say something other than what\n originally was pronounced. We believe it clear that\n Rule 60(a) was not designed to affect substantive\n portions of a judgment or order, nor to act as a\n substitute for appeal. The rule is appropriately\n utilized only for ‘the correction of irregularities which\n becloud but do not impugn [the judgment].' United\n States v. Stuart, 392 F.2d 60, 62 (3d Cir. 1968). The\n problem is essentially one of characterization. Kelley\n v. Bank [Bldg. & Equip. Corp. of Am.], 453 F.2d 774,\n 778 (10th Cir. 1972). It must be determined ‘whether\n a substantive change or amendment was made or\n\n 3\n whether the amended conclusions and judgment were\n in the nature of corrections.' Kelley, supra.\n\n \"A court may correct, pursuant to Rule 60(a),\n errors created by oversight or omission that cause the\n judgment to fail to reflect what was intended at the\n time of trial. However, Rule 60(a) is not a vehicle for\n relitigating matters that have already been litigated\n and decided, nor to change what has been deliberately\n done.\" (Citations, footnote omitted.)\n\n Gruebele v. Gruebele, 338 N.W.2d 805, 811–12 (N.D. 1983); see\n also Volk v. Volk, 435 N.W.2d 690, 692 (N.D. 1989).\n\nThus, \"[a] court may correct, pursuant to Rule 60(a), errors created by\noversight or omission that cause the judgment to fail to reflect what was\nintended at time of trial.\" Gruebele, at 811 (citing Mullins v. Nickel Plate\nMining Co., 691 F.2d 971, 973 (11th Cir. 1982); Warner v. City of Bay St. Louis,\n526 F.2d 1211, 1212 (5th Cir. 1976); Pattiz v. Schwartz, 386 F.2d 300, 303 (8th\nCir. 1968)).\n\n In considering federal case law interpreting Fed. R. Civ. P. 60, from\nwhich N.D.R.Civ.P. 60 was adopted, we have said \"typical\" clerical mistakes\ninclude transcription and mathematical errors, but \"the federal rule authorizes\na district court to correct ambiguities and errors of omission or oversight to\nclarify and reflect the court's intent when the initial judgment was\nentered.\" Roth v. Hoffer, 2006 ND 119, ¶ 9, 715 N.W.2d 149 (citing 12 J.\nMoore, Moore's Federal Practice § 60.11[1] and [2] (3rd ed. 2006)). Additionally,\nwe have further distinguished clerical from substantive mistakes:\n\n \"The basic distinction between ‘clerical mistakes' and mistakes\n that cannot be corrected pursuant to Rule 60(a) is that the former\n consist of ‘blunders in execution' whereas the latter consist of\n instances where the court changes its mind, either because it made\n a legal or factual mistake in making its original determination, or\n because on second thought it has decided to exercise its discretion\n in a manner different from the way it was exercised in the original\n determination.\"\n\n 4\n Id. (internal citation omitted) (quoting Blanton v. Anzalone, 813 F.2d 1574,\n1577 n.2 (9th Cir. 1987)).\n\n In Kukla v. Kukla, 2013 ND 192, ¶ 4, 838 N.W.2d 434, the parties owned\nreal property and other mineral interests. The divorce judgment distributed\nthe real property to both parties, but made no mention of any mineral interests.\nId. Over eight years after entry of the judgment, Bobbi Kukla moved the\ndistrict court for relief from judgment under N.D.R.Civ.P. 60(a) and 60(b)(1)\nand (6). Id. at ¶ 5. Bobbi Kukla alleged the court committed a clerical error\nbecause the court failed to address the parties' mineral interests in the\njudgment. Id. After the district court held a hearing, in which it received\ntestimony and evidence, the court granted Bobbi Kukla's motion for relief from\njudgment. Id. at ¶¶ 5-6. We reversed, stating, \"Under these circumstances, we\nconclude N.D.R.Civ.P. 60(a) does not apply, because the amended judgment\nwent beyond merely correcting a ‘clerical mistake' or a ‘mistake from an\noversight or omission,' but rather affected a substantive portion of the divorce\njudgment.\" Id. at ¶ 20. Our decision was based on the fact that the district\ncourt \"held a hearing, received testimony and evidence, and construed the\nlanguage of the stipulation to find a mistake from omission and to enter the\namended judgment.\" Id. at ¶ 19.\n\n In Roth, 2006 ND 119, ¶ 11, 715 N.W.2d 149, the district court issued a\nmemorandum opinion awarding 65% of Roth's 401(k) to Hoffer and 35% to\nRoth. At trial, evidence was introduced valuing the 401(k) at $68,352.41 with\nan outstanding loan of $11,233.77 against the account. Id. at ¶ 11. The\njudgment, which was prepared by Hoffer, stated the 401(k) had a value of\n$53,620.91 with an $11,233.77 loan against it, leaving a net value of\n$42,387.14. Id. at ¶ 2. The judgment awarded Hoffer 65% of the net value\nstated in the judgment ($27,551.64). Id. A QDRO authorized the administrator\nof the 401(k) to hold $27,551.64 for Hoffer. Id. Hoffer filed a Rule 60 motion\nclaiming there was a clerical mistake because the judgment did not accurately\nreflect the amount of money she was to receive from the 401(k) plan. Id. at ¶\n3. The district court granted Hoffer's motion \"to the extent that she [sought]\nsupplementary court orders to assure that the 401(k) plan proceeds that were\nawarded in the divorce judgment be made available to her.\" Id. at ¶ 4. The\n\n 5\n district court amended the judgment to award Hoffer \"65% of the net value of\n$42,027.22,\" and amended the QDRO to require the 401(k) administrator to\npay Hoffer \"$42,827.22 (65% of the total account balance of $65,657.26).\" Id.\nWe affirmed the amended judgment because the language in the memorandum\ndecision, which differed from the findings of fact, judgment, and QDRO\nprepared by Hoffer's counsel, supported the district court's conclusion that\nthere was a clerical mistake or \"blunder in execution\" in preparing the findings\nof fact, judgment, and QDRO. Id. at ¶ 12. Our reason for affirming was based\nentirely on the district court's intent. See id.\n\n In Gruebele, 338 N.W.2d at 808, a divorce decree ordered certain real and\npersonal property owned by the parties be sold and the proceeds from the sale\nbe divided equally between them. The decree did not contain language\ndirecting a reservation of mineral interests. Id. at 810. The sale of the real\nproperty was advertised with a reservation of the mineral interests, of which\nthe parties together owned an undivided one-half interest. Id. at 809. Jacob\nGruebele was the successful bidder at the sale of the property. Id. at 808. Jacob\nGruebele's bid was only for the surface interest, yet he received both the\nsurface and mineral interests. Id. at 812. The court entered an order\nconfirming the sale of the property to Jacob Gruebele and ordering a receiver's\ndeed be executed and delivered. Id. at 808. Neither the court's order confirming\nthe sale nor the receiver's deed contained any language reserving the mineral\ninterests in the property. Id. After the receiver's deed was delivered, the\ndistrict court issued an ex parte order conveying an undivided one-fourth\nmineral interest to Erna Gruebele. Id. at 808-09. We affirmed the ex parte\norder under N.D.R.Civ.P. 60(a). Id. at 812. We reasoned the district court's\nintent was to equally divide the property, selling the property was the only way\nof attaining that objective, and a clear mistake had occurred in carrying out\nthe court's objective because Jacob received both the surface and mineral\ninterests for the price of the surface. Id. at 812. However, we stated we would\nhave preferred the court's correction have been made under Rule 60(b), but the\ncorrection was proper under Rule 60(a). Id.\n\n The facts of this case are analogous to the facts in Roth and Gruebele.\nThe judgment stated Myron Axtman's \"Hess Retirement account shall be\n\n 6\n divided equally between the parties as of the date of commencement of this\naction for divorce by use of a Qualified Domestic Relations Order.\" The\namended judgment ordered Myron Axtman pay Amy Axtman half of the\npension payments he had received since the commencement of the divorce\naction. As expressed in the original judgment, the court intended for Amy\nAxtman to receive half of the pension payments received by Myron Axtman\nfrom the beginning of the commencement of the divorce action. A mistake\noccurred because the original judgment did not award Amy Axtman half the\npayments Myron Axtman received from the commencement of the divorce\naction until judgment was entered. Amending the judgment to award Amy\nAxtman half the payments received by Myron Axtman during the pendency of\nthe divorce corrected an oversight in the original judgment and was consistent\nwith the court's intent as set forth in the original judgment. The court's\nomission amounts to a \"blunder in execution.\" The court did not change its\nmind on the share or amount of the Hess pension Amy Axtman was to receive.\nThe court intended for Myron Axman's Hess pension to be divided equally from\nthe date of the commencement of the divorce, and a mistake resulting from the\ncourt's oversight and unintended omission occurred. Because of the court's\noversight and omission, Rule 60(a) was a proper mechanism to amend the\njudgment.\n\n We prefer the use of N.D.R.Civ.P. 60(b), rather than N.D.R.Civ.P. 60(a),\nwhen a party seeks to change a previously entered judgment. Fargo Glass &\nPaint Co., 2004 ND 4, ¶ 7, 673 N.W.2d 261 (citing Disciplinary Action Against\nWilson, 461 N.W.2d 105, 109 (N.D. 1990); Prod. Credit Ass'n v.\nObrigewitch, 443 N.W.2d 304, 309 (N.D. 1989); Volk v. Volk, 435 N.W.2d 690,\n692 (N.D. 1989); Gruebele, 338 N.W.2d at 812)). Amy Axtman moved the\ndistrict court for relief from judgment under Rule 60(b)(3) and (6), but the court\namended judgment under Rule 60(a). Although we would have preferred the\njudgment have been amended under Rule 60(b), amending judgment under\nRule 60(a) was proper here.\n\n Amy Axtman brought her motion under Rule 60(b)(3) and (6). Under\nsubsection (3), a party may be relieved from judgment due to \"fraud (whether\npreviously called intrinsic or extrinsic), misrepresentation, or misconduct by\n\n 7\n an opposing party.\" There is nothing in the record providing a basis for a claim\nof fraud or misconduct against Myron Axtman. Granting relief from judgment\npursuant to Rule 60(b)(3) would have been improper.\n\n Subsection (6) is also inapplicable. Subsection (b)(6) should not be used\nwhen another subsection may apply. Kukla, 2013 ND 192, ¶ 23, 838 N.W.2d\n434 (citing Suburban Sales & Serv., Inc. v. Dist. Court of Ramsey Cty., 290\nN.W.2d 247, 252 (N.D. 1980); Brigham Oil & Gas, L.P. v. Lario Oil & Gas\nCo., 2011 ND 154, ¶ 47, 801 N.W.2d 677; 11 Charles Alan Wright, et\nal., Federal Practice and Procedure § 2864 (3d ed. 2012)). But, \"Rule 60(b)(6)\nmay be used when ‘the grounds for vacating a judgment or order are' within\nanother subsection, but ‘something more' or ‘extraordinary' is present to justify\nrelief from the judgment.\" Id. Amy Axtman did not assert anything \"more\" or\n\"extraordinary\" existed to justify relief from judgment under subsection (b)(6).\nGranting relief from judgment pursuant to Rule 60(b)(6) would have also been\nimproper.\n\n Relief from judgment under Rule 60(b) may only be granted on motion\nfrom a party; the court may not provide relief on its own. However, under Rule\n60(a), a district court may provide relief from judgment on its own. The court\nbelieved its mistake was from an oversight or omission for failing to take into\nconsideration N.D.C.C. § 14-23-05 (declaring marital property valued at time\nof commencement of action). It is unclear how the court failed to take § 14-23-\n05 into consideration when the judgment stated the Hess account shall be\n\"divided equally between the parties as of the date of commencement of this\naction.\" But what is clear is that the court intended the Hess pension be divided\nequally between the parties as of the date of commencement of the divorce\naction. The original judgment did not take into account the payments Myron\nAxtman had received from the time between when the action was commenced\nto when judgment was entered. Because Amy Axtman did not bring her motion\nfor relief under any applicable provisions of Rule 60(b), the court could not\nprovide relief under Rule 60(b). The court could only provide relief under Rule\n60(a) because it was doing so on its own. Because, as previously discussed,\nomitting an award to Amy Axtman of half the payments received by Myron\nAxtman during the pendency of the divorce was a mistake arising from\n\n 8\n oversight or omission, the district court was within the boundaries of Rule\n60(a) to amend the judgment to correct its mistake.\n\n III\n\n Rule 60(a), N.D.R.Civ.P., states a court may correct a mistake in a\njudgment \"on its own, with notice.\" Prior to amending the judgment, the\ndistrict court had not provided the parties notice that it was considering\namending the judgment pursuant to Rule 60(a). Myron Axtman addressed this\nissue in his \"Motion to Vacate Order on Motion for Relief from Judgment.\" The\ncourt denied Myron Axtman's motion after determining it provided sufficient\nnotice, stating, \"Notwithstanding that the Court concluded that the Plaintiff\nwas effectively asserting that this problem arose as a result of the Court's\noversight or mistake, the decision to grant the relief was based upon Plaintiff's\nmotion after notice and opportunity to be heard.\"\n\n Amy Axtman's motion noticed and argued relief from judgment under\nRule 60(b), not Rule 60(a). Although the district court recognized at the status\nconference it had made a mistake by omitting from the original judgment\ndivision of the pension payments received by Myron Axtman during the\npendency of the divorce, the court did not correct the judgment on its own when\nit could have done so. Rather, it signed the QDRO and directed Amy Axtman\nto make a motion to correct the judgment. In doing so, the court did not direct\nor advise Amy Axtman to make her motion under Rule 60(a). Rule 60(a) was\na proper mechanism for the court to amend the judgment to correct the mistake\nresulting from its oversight and omission, but the court did not provide notice\nto the parties it was considering amending judgment pursuant to Rule 60(a).\n\n However, the court's error is harmless because, after the court amended\nthe judgment, Myron Axtman brought his \"Motion to Vacate Order on Motion\nfor Relief from Judgment.\" In his motion, Myron Axtman argued the district\ncourt erred in amending the judgment under Rule 60(a) because the original\njudgment's failure to divide the pension payments received by Myron Axtman\nduring the pendency of the divorce was not a clerical mistake or a mistake\narising from oversight or omission, which is the argument he now raises on\nappeal. The court denied Myron Axtman's motion declaring the amended\n\n 9\n judgment was issued because of a mistake arising from oversight or omission.\nHad the district court provided notice to the parties that it was considering\namending judgment under Rule 60(a), Myron Axtman would have raised the\nsame issues and made the same arguments he did in his \"Motion to Vacate\nOrder on Motion for Relief from Judgment.\" The district court considered\nMyron Axtman's arguments and denied his motion. Furthermore, Myron\nAxtman was aware the district court recognized it failed to take into\nconsideration the payments Myron Axtman received during the pendency of\nthe divorce in the original judgment, and that Amy Axtman was attempting to\namend the judgment to account for the payments Myron Axtman received\nduring the pendency of the divorce. The court's error in not providing notice\ndoes not require reversal. It would be futile for this Court to remand to the\ndistrict court for Myron Axtman to raise the same arguments he did in his\n\"Motion to Vacate Order on Motion for Relief from Judgment\" and that he now\nraises on appeal.\n\n IV\n\n The amended judgment is affirmed.\n\n Gerald W. VandeWalle\n Jerod E. Tufte\n Lisa Fair McEvers\n Jon J. Jensen, C.J.\n\n I concur in the result.\n Daniel J. Crothers\n\n 10", "publication_date": "2020-01-01", "publication_status": "public", "record_id": "rec:v1:15159a4b-491f-7301-899e-4b084550449b", "schema_version": "1.0.0-draft.1", "source_locators": [ { "artifact_id": "art:v1:9dc1d3ff-0825-7837-86ea-e0ff20ee7826", "locator": "full-text", "quote_sha256": "46b905ed308e8bb085b6720e046f1c73a3121445abc02c135d9f4165c8cb384f" } ], "status": "current", "structure_sha256": "46b905ed308e8bb085b6720e046f1c73a3121445abc02c135d9f4165c8cb384f", "text_scope": { "excludes": [ "footer", "navigation", "annotations", "headnotes", "summaries", "editorial_content" ], "includes": [ "opinion_body" ] }, "version_id": "ver:v1:fe488fdc-9e6d-7e4e-8d1f-eccbc13361cf" } }