[¶ 1] Shane Stolz appeals from the district court’s order denying his motion to vacate judgment and the judgment granting Stacey Hildebrand primary residential responsibility of their two minor children, requiring Stolz to make $761 per month in child support payments, and partitioning real property held jointly between them, Because the district court did not abuse its discretion denying Stolz’s motion to vacate, we affirm. However,.the judgment incorrectly states the matter came before the district,court “on motion” and “as a stipulated divorce action,” rather than an action for partition of real property and for a determination of parental rights-and responsibilities. Therefore, we remand, for the district court to correct the judgment to accurately reflect this action.
I
[¶ 2] Stacey Hildebrand and Shane Stolz never married, but had three children together. In her complaint filed in March 2012, Hildebrand requested the partition of real property they held jointly, primary residential responsibility of their minor children, and child support payments from Stolz. Stolz filed an answer to the complaint, listing his only denial as Hildebrand being the proper person to have primary residential and decision-making responsibility‘for the minor children. This is a prolonged dispute which has been continued several times.
[¶ 3] In January 2015, the district court set a trial date for April 29, 2015. Neither party disputes that Stolz’s attorney,. TaLisa Nemec, received notice from the district court regarding this trial date. Stolz signed an affidavit consenting to Nemec’s withdrawal on March 31, 2015. In his affidavit, Stolz stated the withdrawal was based on mutual agreement, waived notice, and requested all future correspondence be mailed to him at a Bismarck address. On. April 10, 2015, Nemec moved the court to allow her to withdraw as Stolz’s attorney, and submitted a brief and Stolz’s affidavit in support.
[¶ 4] The district court granted the motion to withdraw on April 28, 2015. The district court held the trial as scheduled on April 29, 2015. Stolz was not present; The district court noted Nemec’s withdrawal and its belief that Stolz intended to proceed as ' a self-represented litigant. The district court proceeded to hear testimony" and receive exhibits. Hildebrand submitted evidence, testimony, and filed a post-trial brief. Hildebrand served the post-trial brief on Stolz on September 11, 2015. On October 5, 2015, the district court issued a memorandum and order finding Stolz in default for failing to appear at the trial, awarding primary residential responsibility to Hildebrand based on the best interest factors, requiring Stolz to make $761 per month in child support payments, and ordering the partition of real property held jointly by Hildebrand and Stolz.
[¶ 5] - Before the district court entered judgment, Stolz hired another attorney and moved to vacate the district court’s order under N.D.R.Civ.P. 60(b)(1) or (6). Stolz argued he was not aware of the trial date and his counsel did not notify him of the trial date. In support of his argument, Stolz and his wife, Sharon Stolz, submitted
II
[¶ 6] Stolz moved to vacate the district court’s memorandum and order under Rule 60(b), N.D.R.Civ.P., which provides a party may only move for relief from a “final judgment or order,” The memorandum and order was not a final judgment. The district court, however, considered Stolz’s motion under Rule 60(b), N.D.R.Civ.P. Because a consistent judgment was subsequently entered, we will consider Stolz’s arguments in the context of N.D.R.Civ.P. 60(b). See
Jury v. Barnes Co. Municipal Airport Authority,
[¶7] Stolz argues the district court erred in denying his motion to vacate the judgment. A motion to vacate lies with the “sound discretion of the trial court, and its decision whether to vacate the judgment will not be disturbed on appeal unless the court has abused its discretion.”
Kopp v. Kopp,
A.
[¶ 8] Stolz argues the district ■ court misapplied the law in entering a default judgment, and should have granted Stolz a trial on the merits. Stolz argues the district court should have been more lenient, because trial on the merits is favored. However, Stolz’s argument is misplaced. The history of the case itself shows the district court did not enter a default judg
[¶ 9] In its memorandum and order, the court observed, “[bjecause it appears [Stolz] had notice of the trial and failed to appear, the court finds him to be in default. [Hildebrand] testified at trial and offered exhibits which were received in evidence.” In its order denying Stolz’s motion to vacate, the district court explained that “[a]t the
conclusion of the trial,
the court took the case under advisement.” (Emphasis added.) Litigated judgments, as distinguished by default'judgments are those “judgments entered after trial on the merits.”
Throndset v. L.L.S.,
B.
[¶ 10] Stolz argues the district court erred in granting Nemec’s motion to withdraw the day before trial without first deciding if Stolz was aware of trial and that his interests would not be adversely affected. Stolz did not cite any authority supporting his position, and we have found none. Stolz. was represented by counsel in January 2016 and provided notice of the trial through his counsel. Stolz signed an affidavit consenting, to the withdrawal, waiving further notice. Nemec moved to withdraw under ND.R.Ct, H.2., In the motion, Nemec cited to ND.R.Ct. 3.2, which states “the moving party must serve and file a brief and other supporting papers and the opposing party must have 14 days after service of a brief within which to serve and file an answer brief and other supporting papers.” Rule 6(e)(1), N.D.R.Civ.P,, adds three days for service. Therefore, under N-D.R.Ct. 3.2, the earliest the' district court could have granted the motion to withdraw was April 28,2015, seventeen days after Nemec moved to withdraw as Stolz’s attorney. We will not overturn the district court’s decision to grant Nemec’s motion to withdraw the day before trial when Stolz consented, and the district court followed the time frames prescribed under the rules.
C.
[¶ 11] Stolz argues the district court erred in finding he had notice of the trial date. The district court’s determination that Stolz knew of the trial date is a finding of fact, which we will not set aside unless it . is clearly, erroneous, N.D.R.Civ,P. 52(a).
A finding of fact is clearly- erroneous if it is induced by an erroneous view of thelaw, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses[.]
Dronen v. Dronen,
[¶ 12] ' According to Stolz, he never personally received notice of the trial date from the court, opposing counsel, or his attorney, and he argues motions to vacate should be granted When the mistake or neglect is the fault of a third party.
See CUNA Mortg. v. Aafedt,
[¶ 13] Stolz’s situation is similar to our ruling in
Throndset.
In
Throndset,
Larry Throndset failed to appear at a hearing for summary judgment in an action to establish paternity and child support payments.
[¶ 14] Here, Stolz did not request a hearing in his Rule 60(b). motion. Stolz and Hildebrand both chose to proceed on affidavits submitted as evidence to the district court. Stolz ■ and his. wife claimed they did not. have knowledge of the trial date. Through the affidavit of the parties’ seventeen-year-old daughter, the district court found that Stolz had notice of the trial date:
An affidavit of the parties’ 17 year old daughter, G.S., was submitted in support of Plaintiff’s opposition to the motion to vacate. In her affidavit, G.S. states that she was living with [Stolz] in the month of April, 2015, that she observed court documents on [Stolz’s] desk, that [Stolz] knew about the trial and . asked her to write a statement for him, and that [Stolz] pressured her to testify on his behalf at trial.
Considering all of these factors, it seems more likely than not that [Stolz] was aware of the April 29, 2015 trial date.
D.
[¶ 15] Other than a passing reference in a quoted case, Stolz makes no separate argument on appeal identifying what facts justify granting his motion to vacate under N.D.R.Civ.P. 60(b)(6). Likewise, in his brief to the district court, his only argument regarding Rule 60(b)(6) was, “This is the type of case that should warrant vacating a default decision even if the court relies on the catch-all provision of Rule 60(b)(6).”
[¶ 16] “Rule 60(b)(6), N.D.R.Civ. P., is a ‘catch-all’ provision that allows a district court to grant relief from a judgment for ‘any other reason that justifies relief.’ ”
Meier v. Meier,
[T]he use of the rule is limited by many considerations. It is not to be used as a substitute for appeal. It is not to be used to relieve a party from free, calculated, and deliberate choices he has made. It is not to be used in cases where subdivisions (1) to (5) of Rule 60(b) might be employed — it and they are mutually exclusive. ■ Yet 60(b)(6) can be used where the grounds for vacating a judgment or order are within any of subdivisions (1) to (5), but something more or extraordinary which justifies relief from the operation of the judgment must be present.
City of Wahpeton v. Drake-Henne, Inc.,
[¶ 17] Stolz’s argument most relevant to Rule 60(b)(6) was because he did not appear at trial, he was not allowed to present evidence related to his case, including Hildebrand’s felony convictions which should have been considered in the best interest factors. However, the district court found that he had notice of the trial date. The time to present evidence was at trial. The district court heard evidence from Hildebrand regarding her past convictions and drug issues, the value of the property held jointly between Hildebrand and Stolz, and weighed the best interest factors in determining primary residential responsibility. Stolz’s affidavit in support of his motion to vacate vaguely references, without specificity, that there have been problems with the interim order and he has been denied visitation. The interim order had been in place since November 2013. Any issues he may have been having could have been addressed either before or at trial.
[¶ 18] Here, in its order denying Stolz’s motion to vacate, the district court stated “[e]ven if [Stolz] was not made aware by Ms. Nemec, he had an obligation as a self-represented party to apprise himself of the status of this litigation which has been ongoing since March 2012.” It is clear
Ill
[¶ 19] Because the district court’s finding that Stolz had notice of the tidal date was not clearly erroneous, we hold the district court did not abuse its discretion by denying Stolz’s motion to vacate. The judgment and order are affirmed.
[¶20] However, the judgment incorrectly states the matter came before the district court “on motion” and “as a stipulated divorce action,” rather than an action for partition of real property and .for a determination of parental rights and responsibilities. Rule -60(a), N.D,R.Civ.P., provides that “[t]he court may correct a clerical mistake or a mistake'arising from oversight or omission whenever one is found in a judgment_But after an appeal has been docketed in the Supreme Court -and while it is pending, such a mistake may be‘corrected only with the Supreme Court’s leave.” ; The mistake in the judgment appears to be .an oversight by the district court. Therefore, we remand for the district, court to correct the judgment to accurately reflect this action.