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Painovich v. Painovich

September 22, 2009

STEVEN EDWARD PAINOVICH, APPELLANT (DEFENDANT),
v.
JACQUELINE LOUISE PAINOVICH, APPELLEE (PLAINTIFF).



Appeal from the District Court of Sweetwater County The Honorable Jere A. Ryckman, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] On July 11, 2006, Jacqueline Louise Painovich (the appellee) filed for divorce from her husband, Steven Painovich (the appellant). The appellant subsequently answered the complaint and retained counsel. Following a hearing to dispose of the marital property, in which the appellant failed to appear, the district court entered judgment in favor of the appellee. The appellant filed a Motion to Vacate Judgment pursuant to W.R.C.P. 60(b), which motion the district court denied. Finding no abuse of discretion, we will affirm the district court‟s denial of the motion.

ISSUE

[¶2] Did the district court commit an abuse of discretion in denying the appellant‟s W.R.C.P. 60(b) motion?

FACTS

[¶3] After twelve years of marriage, the appellee, through her attorney, filed for divorce against the appellant. The appellant was properly served the summons and complaint. He subsequently filed an answer and counterclaim. The district court entered a decree of divorce and a hearing was then set relating to the division of property. Proper notice indicating the time and date of the hearing was sent to both parties. The appellant failed to appear at the hearing and the district court entered judgment dividing the marital property. The judgment was entered on January 11, 2008. Proper notice of the judgment was sent to both parties.

[¶4] On August 25, 2008, approximately seven months after entry of the property division judgment, the appellant filed a motion to vacate the judgment pursuant to W.R.C.P. 60(b). Following a hearing on the motion, the district court denied the motion to vacate the judgment. The appellant timely filed a notice of appeal.

STANDARD OF REVIEW

[¶5] Review of a court‟s decision on a Rule 60(b) motion is confined to a determination of whether the court abused its discretion, and it is the movant‟s burden to bring his cause within the claimed grounds of relief and to substantiate these claims with adequate proof. We will reverse an order denying relief under Rule 60(b) only if the trial court clearly was wrong.

In re Injury to Seevers, 720 P.2d 899, 901 (Wyo. 1986).

DISCUSSION

[¶6] The appellant asserts that the district court abused its discretion when it denied his motion to vacate the judgment pursuant to W.R.C.P. 60, which provides as follows:

(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 ...


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