Berry v. Berry

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Phyllis and Ronald Berry were divorced in a judgment entered on January 24, 2008. Following entry of the judgment, Phyllis Berry requested the district court reconsider its allocation of Ronald's military retirement benefits. The court entered an order denying her motion to reconsider on March 3, 2008. In 2014, both parties initiated post-judgment motions. Ronald sought modification of several provisions of the judgment including the allocation of his military retirement benefits. An Order for Amended Judgment and Judgment were entered on March 5, 2015, which included a denial of Ronald's request for modification of the allocation of his military retirement benefits and directing both parties to complete specific tasks. The district court denied Ronald's motion without prejudice, noted that he had failed to comply with the requirements of N.D.R.Civ.P. 60(b)(6). Because Ronald failed to file the additional materials, and after a show-cause hearing, the court eventually issued an order for a corrected amended judgment and entered a corrected amended judgment modifying the formula allocating Ronald's military retirement benefits. Phyllis appealed, arguing the district court erred in modifying the allocation of Ronald's military retirement benefits because he failed to satisfy the requirements under N.D.R.Civ.P. 60 for modification of the judgment. The North Dakota Supreme Court affirmed, finding the district court's findings of fact explained the modification corrected the formula to reflect what the court had originally intended. The original and amended judgments overstated Ronald's years of service (26 rather than 24) and the REDUX percentage (40 percent rather than 30 percent). Absent a correction, Phyllis would have received a share of Ronald's retirement benefits different than what the court had always intended. In light of the circumstances of this case, the Supreme Court concluded the district court's correction was not clearly erroneous. View "Berry v. Berry" on Justia Law