(508) 736 - 6209 
On its face, Mass. R. Civ. P. 60(a), provides a method by which to correct “clerical mistakes in judgments … and errors arising from oversight or omission….” Obviously, the Rule covers the correction of scrivener’s errors, typos and the like. Perhaps surprisingly, however, Rule 60(a) also offers a method by which to obtain important, substantive modifications of judgments.
Consider a divorce case in which the wife seeks to vacate or to amended a judgment nisi which incorporates a settlement agreement between the husband and the wife, because that agreement failed to reflect the parties’ actual agreement as to property division and was inconsistent with the court’s intent to provide a 50-50 overall division of marital assets. The court may be convinced to correct the judgment nisi by altering the incorporated settlement agreement to reflect the terms actually agreed by the parties.
Massachusetts Rule of Domestic Procedure 60(a), which is identical to Mass. R. Civ. P. 60(a), states:
(a) Clerical Mistakes. 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. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
Rule 60(a) applies not just to clerical mistakes, but also to “errors [in the judgment] arising from oversight or omission.”[1] It applies not just to mistakes of the court, but also to those of the parties,[2] the clerk[3], or the jury.[4] Moreover, unlike a Rule 60(b) motion for relief from judgment, which must be brought either within one year or a reasonable time, depending on the ground asserted, a Rule 60(a) motion may be brought at any time (even after the judgment has been affirmed on appeal, so long as the appellate court has not ruled on the alleged error).[5]
Rule 60(a) applies where judgment entered by the court fails to reflect what the court intended at the time, not when the judgment says what the court intended but a party claims that the court was wrong.[6] In Tomkins v. Tomkins, 65 Mass. App. Ct. 487, 492, the court stated:
Rule 60(a) “seeks to ensure that the record of judgment reflects what actually took place,” Reporter’s Notes to Mass.R.Civ.P. 60, …. “Rule 60(a) does not apply unless the mistake springs from some oversight or omission; it does not cover mistakes which result from deliberate action.”
In Gagnon v. Fontaine, 36 Mass. App. Ct. 393 (1994), the Appeals Court explained:
There are different approaches to analyzing rule 60(a) issues, each representing a slightly different emphasis: (1) determining whether the judgment reflects the intent of the court at the time it was entered; and (2) determining whether the relief requested is essentially “clerical” in nature rather than “substantive” in nature. The two analyses are interrelated, not discrete. See DeLuca v. DeLuca, 26 Mass.App. at 194, 525 N.E.2d 435; Dalessio v. Dalessio, 409 Mass. at 832-833 n. 6, 570 N.E.2d 139.
As the Montana Supreme Court has aptly said in a context similar to that in this case: “The rule is well settled in this state that a trial court has … the power at any time to amend any judgment it has rendered, to the end that such judgment will correctly express what the court actually decided, where error has crept into the judgment by reason of misprision on the part of the clerk, the court, or the attorneys, appearing on the face of the record….
“It is, however, equally well settled that where the judgment correctly expressed the decision of the court, no matter how erroneous that decision may have been and no matter how proper the attempted amendment may be, after the judgment has been rendered and entered, the trial court cannot modify the judgment so as to change the rights thereby fixed and determined….” Oregon Mort. Co. v. Kunneke, 76 Mont. 117, 123-124, 245 P. 539 (1926).
“If the flaw lies in the translation of the original meaning to the judgment, then [r]ule 60(a) allows a correction; if the judgment captures the original meaning but is infected by error, then the parties must seek another source of authority to correct the mistake.” See United States v. Griffin, 782 F.2d 1393, 1396-1397 (7th Cir.1986). “The [r]ule does not permit alterations of factual and legal decisions deliberately made,” Id. at 1396, or correction of “errors of substantive judgment,” Jones v. Anderson-Tully Co., 722 F.2d 211, 212 (5th Cir.1984). In this case, rule 60(a) would allow only the enforcement of the first judge’s intent in entering the divorce judgment, not a change in its substantive provisions.[7]
Massachusetts and Federal cases provide no “bright line” rules as to what distinguishes a “substantive” error from a “clerical” error.[8] However, the mere fact that correcting an error would have significant substantive effects does not prevent the error from being clerical and subject to revision under Rule 60(a).[9]
While the court in Gagnon said that errors have been deemed clerical when the error is apparent on the face of the judgment, and stated that it would be more “troublesome” if the alleged error were not apparent on the face of the judgment, the court also acknowledged that where the Rule 60(a) motion is decided by the same judge who entered the judgment, who presumably knows what the court intended, Rule 60(a) might be used to correct errors not clear on the face of the judgment.[10]
Rule 60(a) has been applied in cases where a judgment failed to incorporate a portion of a settlement agreement which the court had intended to incorporate. In Sanborn v. Johns, 19 Mass. App. Ct. 721 (1985), the parties signed a stipulation and the judge dictated it into the record and placed the stipulation “on file.” As entered, however, the stipulation omitted two paragraphs relating to the division of real and personal property. In a footnote, the Appeals Court stated:
If, as the evidence suggests, the judge hearing the divorce intended to include paragraphs 3 and 4 in the divorce decree, but neglected to do so, Mass.R.Dom.Rel P. 60(a) (1975), authorizes correction of the judgment at any time. See 11 Wright & Miller, Federal Practice and Procedure § 2854 (1973); Jackson v. Jackson, 276 F.2d 501, 503 (D.C.Cir.), cert. denied, 364 U.S. 849, 81 S.Ct. 94, 5 L.Ed.2d 73 (1960).[11]
Rule 60(a) has also been used to make other significant changes to divorce judgments[12], and to correct errors in a complaint that were later incorporated in a judgment.[13]
In our hypothetical, the wife would argue that that the court had made clear that it intended a 50-50 division of marital assets and believed that the separation agreement which it incorporated into the judgment nisi achieved that result. Having entered a judgment which, by incorporating the separation agreement as finally drafted did not achieve the equal division intended, the court should alter its judgment to reflect its present intent at the time the judgment was entered. The fact that the error may not be apparent on the face of the judgment should not mater, assuming that the judge hearing the Rule 60(a) motion also entered the judgment.
Rule 60(a) offers an additional method by which to obtain a modification of a judgment. When the judgment arguably does not reflect the judge’s intent, a motion under Rule 60(a) should be considered.
[1] Morris v. Morris, 70 Mass. App. Ct. 1110, 2007 WL 3333245, *2 (11/9/07).
[2] Labor v. Sun Hill Industries, Inc., 48 Mass. App. Ct. 369, 372 (1999), citing Rule 60(a) Reporter’s Note. See also Bruno Independent Living Aids v. Jones, 2007 WL 1075198, *2 (Mass. App. Div. 4/9/07).
[3] Silva v. Associated Building Wreckers, Inc., 87 Mass. App. Ct. 1104, 2015 WL 478671, *2 (2/6/15) (unpublished Rule 1:28 opinion); Mystic Landing, LLC v. OMLC, LLC, 81 Mass. App. Ct. 1127, 2012 WL 1145948, * 2 (4/9/12) (unpublished Rule 1:28 opinion), citing Rule 60(a) Reporter’s Note
[4] Mystic Landing, 2012 WL 1145948, *2, citing Rule 60(a) Reporter’s Note.
[5] Silva, 2015 WL 478671, *3; Fitzgerald v. Fitzgerald, 76 Mass. App. Ct. 1106, 2010 WL 46377, * 1 (1/8/10) (unpublished Rule 1:28 opinion).
[6] Mallowes v. Marion Lands Trust, LLC, 86 Mass. App. Ct. 1102, 2014 WL 2974769, *3 (7/3/14) (unpublished Rule 1:28 opinion); Silva, 2015 WL 478671, *2.
[7] Id. at 396-98. (Emphasis added, footnote references omitted).
[8] Gagnon, 36 Mass. App. Ct. at 399
[9] Id. at 400. (“That a substantive change in an award could result from a correction of a ‘scrivener’s error’ is not a barrier to implementation of the rule. Inevitably, changes made pursuant to rule 60(a) may have ‘significant effects.’”).
[10] 36 Mass. App. Ct. at 400-401 and n.7.
[11] 19 Mass. App. Ct. at 725 n.4.
[12] Morris v. Morris, 70 Mass. App. Ct. 1110, 2007 WL 3333245, *2 (11/9/07) (unpublished Rule 1:28 opinion) (using Rule 60(a) to alter judgment which had given wife a right of first refusal on real estate to instead give wife option to purchase, because “judge acted well within his discretion to conclude that his own earlier judgment did not accurately reflect his ‘contemporaneous intent in framing the judgment.’” Court cited Sanborn for proposition that Rule 60(a) authorizes correction of the judgment at any time where it does not reflect judge’s intent); DeLuca v. DeLuca, 26 Mass. App. Ct. 191, 193-94 (1988) (using rule 60(a) to alter judgment to make clear that property allotted to wife would not be subject to husbands $350,000 floating line of credit), citing Sanborn).
[13] Mystic Landing, 2012 WL 1145948, *2-3; Labor, 48 Mass. App. Ct. at 372.
