C.r.c.p. 60
C.r.c.p. 60
Annotation I. General Consideration. Law reviews. For article, "Notes on Proposed Amendments to Colorado Rules of Civil Procedure", see 27 Dicta 165 (1950). For article, "Amendments to the Colorado Rules of Civil Procedure", see 28 Dicta 242 (1951). For article, "Judgment: Rules 54-63 ", see 23 Rocky Mt. L. Rev. 581 (1951). For article, "One Year Review of Civil Procedure", see 34 Dicta 69 (1957). For article, "One Year Review of Civil Procedure", see 35 Dicta 3 (1958). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Civil Procedure and Appeals", see 40 Den. L. Ctr. J. 66 (1963). For note, "One Year Review of Civil Procedure", see 41 Den. L. Ctr. 67 (1964). For a discussion of federal jurisdiction arising under this rule, see survey of Tenth Circuit decisions on federal practice and procedure, 53 Den. L.J. 153 (1976). For article, "Post-Trial Motions in the Civil Case: An Appellate Perspective", see 32 Colo. Law. 71 (November 2003). Annotator's note. Since this rule is similar to §§ 50(e) and 81 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that sections have been included in the annotations to this rule. Once a valid judgment is entered, the only means by which the trial court may thereafter alter, amend, or vacate the judgment is by appropriate motion under either C.R.C.P. 59 or this rule. Cortvriendt v. Cortvriendt, 146 Colo. 387, 361 P.2d 767 (1961). This rule prescribes the conditions upon which the court may relieve a party from a final judgment. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957). Court may relieve only a party or a party's legal representative from a final judgment; therefore, garnishor of judgment debtor could not seek to modify or set aside an order in the principal case since it was not a party to that case. Law Offices of Quiat v. Ellithorpe, 917 P.2d 300 (Colo. App. 1995). A motion under this rule may not be used to circumvent the operation of C.R.C.P. 59(j), absent extraordinary circumstances involving extreme situations. Anderson v. Molitor, 770 P.2d 1305 (Colo. App. 1988). A motion for relief from judgment under section (b) of this rule may not be construed to avoid C.R.C.P. 59(j) and its 60-day requirement. Diamond Back Servs., Inc. v. Willowbrook Water, 961 P.2d 1134 (Colo. App. 1998). This rule is not a substitute for appeal, but instead is meant to provide relief in the interest of justice in extraordinary circumstances. Thus, a motion under this rule generally cannot be used to circumvent the operation of C.R.C.P. 59(j). De Avila v. Estate of DeHerrera, 75 P.3d 1144 (Colo. App. 2003). After the expiration of his term of office, a judge may not entertain a motion under this rule, even though such motion is filed in a proceeding wherein the "former" judge had himself entered the final judgment at a time when he was actually serving as a judge. Olmstead v. District Court, 157 Colo. 326, 403 P.2d 442 (1965). A court's error in interpreting a statutory grant of jurisdiction is not equivalent to acting with a total lack of jurisdiction. King v. Everett, 775 P.2d 65 (Colo. App. 1989), cert. denied, Everett v. King, 786 P.2d 411 (Colo. 1989). Trial court could not amend judgment to include prejudgment interest when omission was intentional. Jennings v. Ibarra, 921 P.2d 62 (Colo. App. 1996). A judgment creditor is not required to get an amended judgment showing trial court intended to award post-judgment interest where court inadvertently failed to do so. Bainbridge, Inc., v. Douglas County Sch. Dist., 973 P.2d 684 (Colo. App. 1998) (declining to follow Jennings v. Ibarra, 921 P.2d 62 (Colo. App. 1996)). An appellate court does not grant or deny motions filed subsequent to entry of judgment under this rule, since this is a function of the trial court; once a trial court has acted, however, an appellate court may in appropriate proceedings be called upon to review the propriety of the action thus taken by it. Olmstead v. District Court, 157 Colo. 326, 403 P.2d 442 (1965). Default judgment entered after a hearing on damages was a final judgment because it left the court with nothing to do but execute upon the judgment. Therefore, motion to set aside the default judgment filed within six months was timely filed. Sumler v. District Ct., City & County of Denver, 889 P.2d 50 (Colo. 1995). There were no grounds for vacating the default judgment where plaintiff failed to show a reason for not amending the original complaint during the three months before default judgment was entered. Since the judgment was not vacated, it was within the court's discretion to deny the motion to amend the original complaint after entry of the default judgment. Wilcox v. Reconditioned Office Sys., 881 P.2d 398 (Colo. App. 1994). Where none of the grounds prescribed by this rule, upon which a party may be relieved from a final judgment or order is urged in a motion to vacate, no abuse of discretion in denying such motion can be shown. Cortvriendt v. Cortvriendt, 146 Colo. 387, 361 P.2d 767 (1961). There were no grounds for vacating the default judgement where the federal district court entered an order denying defendant's attempt to remove the case to federal court and remanded the case to state court prior to the trial date. Plaintiff's request for reconsideration of the federal court's order did not cut off the state court's jurisdiction since, under federal law, remand orders are not reviewable on appeal or otherwise. Blazer Elec. Supply Co. v. Bertrand, 952 P.2d 857 (Colo. App. 1998). Meritorious defense not grounds for vacation of judgment. A party may not have a judgment vacated solely upon an allegation of the existence of a meritorious defense. Craig v. Rider, 628 P.2d 623 (Colo. App. 1980), rev'd on other grounds, 651 P.2d 397 (Colo. 1982). The mere existence of a meritorious defense is not sufficient alone to justify vacating the judgment. Biella v. State Dept. of Hwys., 652 P.2d 1100 (Colo. App. 1982). Appellate review limited to whether trial court abused its discretion. Appellate review of the grant or denial of a motion under section (b) is normally limited to determining whether the district court abused its discretion. In re Stroud, 631 P.2d 168 (Colo. 1981). It is within the discretion of the trial court to determine whether a party's conduct justifies relief from a judgment, and such determination will be upheld unless the court abused its discretion. Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993). Appellate review of the denial of a motion under section (b) of this rule is limited to whether the trial court abused its discretion. A trial court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair. Guevara v. Foxhoven, 928 P.2d 793 (Colo. App. 1996). A motion pursuant to section (b) must meet the requirements of the rule in order to be subject to exercise of the court's discretion. Especially with respect to the residuary provision of section (b)(5), which has been narrowed to include only extreme situations and extraordinary circumstances, a trial court's ruling must be reviewed in light of the purposes of the rule and the importance to be accorded the principle of finality. Davidson v. McClellan, 16 P.3d 233 (Colo. 2001). Where defendant failed to object to plaintiff's motion for substitution of parties and also failed to object to trial court's order permitting the substitution, the right to appeal on those issues is waived. Thomason v. McAlister, 748 P.2d 798 (Colo. App. 1987). Where there has been a hearing on a motion pursuant to this rule involving controverted issues of fact, a motion for new trial is a jurisdictional prerequisite for appellate review. Canady v. Dept. of Admin., 678 P.2d 1056 (Colo. App. 1983). Order granting relief on insufficient grounds not void. Failure to allege sufficient grounds for relief from a prior judgment does not make the subsequent order granting that motion void; rather, the court's action is legal error, vulnerable to reversal upon appeal. In re Stroud, 631 P.2d 168 (Colo. 1981). Judgment must be final before time limitations apply. Where order of default was entered against one of two defendants but action remained pending and no C.R.C.P. 54(b) certification was obtained, timeliness of motion would be gauged in relation to date of dismissal of action against second defendant. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992). Time limit inapplicable where judgment exceeded jurisdiction. Where a claim is made that the district court's judgment exceeded its jurisdiction, the time limit of section (b) does not apply. Mathews v. Urban, 645 P.2d 290 (Colo. App. 1982); United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992). Even though a motion under C.R.C.P. 59(j) is automatically denied after 60 days, the court had authority under section (a) to vacate the judgment on its own motion because the court was unaware that defendant's motion was pending at the time it entered judgment in favor of plaintiff. Farmers Ins. Exch. v. Am. Mfrs. Mut. Ins. Co., 897 P.2d 880 (Colo. App. 1995). Successor judge may consider challenges to rulings of law presented in a motion for a new trial. Faris v. Rothenberg, 648 P.2d 1089 (Colo. 1982). Appeal from denial of motion. Denial of a motion under this rule is appealable independently of an underlying judgment. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992). An order denying a motion under section (b) of this rule is appealable independently of an underlying judgment and requires a separate notice of appeal. Sender v. Powell, 902 P.2d 947 (Colo. App. 1995); Guevara v. Foxhoven, 928 P.2d 793 (Colo. App. 1996). District court has jurisdiction to review a section (b)(2) motion where a magistrate has authority under § 13-5-301 to hear the motion without the consent of the parties. In re Malewicz, 60 P.3d 772 (Colo. App. 2002). A section (b)(2) motion filed within six months of the district court's order is timely filed under this rule. In re Malewicz, 60 P.3d 772 (Colo. App. 2002). Court's order discharging a receiver appointed under predecessor to § 38-38-601 is a final judgment subject to appellate review, and any claim based on misfeasance or malfeasance of the receiver must be presented prior to discharge, if at all, unless grounds exist for relief from judgment under this rule. Four Strong Winds, Inc. v. Lyngholm, 826 P.2d 414 (Colo. App. 1992). Relief from foreign judgments available under this rule is limited by full faith and credit clause of federal constitution to: (1) Judgments based upon fraud; (2) void judgments; and (3) judgments which have been satisfied, released, or discharged, or a prior judgment upon which it was based has been reversed or vacated, or it is no longer equitable that judgment should have prospective application. Marworth, Inc. v. McGuire, 810 P.2d 653 (Colo. 1991). A trial court's ruling in resolving a motion for relief from judgment predicated on newly discovered evidence under section (b) will not be disturbed absent a clear showing of an abuse of discretion. Sender v. Powell, 902 P.2d 947 (Colo. App. 1995). Failure to submit financial information to the trial court and the failure of the trial court to review the modified child support agreement between the parties rendered the resulting trial court order subject to being set aside under section (b)(5). In re Smith, 928 P.2d 828 (Colo. App. 1996). The provisions for vacating, modifying, or correcting an arbitration award are set forth in §§ 13-22-223 and 13-22-224 and are the exclusive means for challenging an award. Therefore, this rule is not the appropriate vehicle to challenge the award. Superior Constr. Co. v. Bentley, 104 P.3d 331 (Colo. App. 2004). Applied in Valenzuela v. Mercy Hosp., 34 Colo. App. 5, 521 P.2d 1287 (1974); Janicek v. Hinnen, 34 Colo. App. 68, 522 P.2d 113 (1974); Bankers Union Life Ins. Co. v. Fiocca, 35 Colo. App. 306, 532 P.2d 57 (1975); In re Estate of Bonfils, 190 Colo. 70, 543 P.2d 701 (1975); Duran v. District Court, 190 Colo. 272, 545 P.2d 1365 (1976); Johnston v. District Court, 196 Colo. 261, 580 P.2d 798 (1978); In re Gallegos, 41 Colo. App. 116, 580 P.2d 838 (1978); O'Hara Group Denver, Ltd. v. Marcor Hous. Sys., 197 Colo. 530, 595 P.2d 679 (1979); Sec. State Bank v. Weingardt, 42 Colo. App. 219, 597 P.2d 1045 (1979); In re Stroud, 657 P.2d 960 (Colo. App. 1979); Collection Agency, Inc. v. Golding, 44 Colo. App. 421, 616 P.2d 988 (1980); Town of Breckenridge v. City & County of Denver, 620 P.2d 1048 (Colo. 1980); People in Interest of T.A.F. v. B.F., 624 P.2d 349 (Colo. App. 1980); In re Van Camp, 632 P.2d 1062 (Colo. App. 1981); Soehner v. Soehner, 642 P.2d 27 (Colo. App. 1981); Cross v. District Court, 643 P.2d 39 (Colo. 1982); Best v. Jones, 644 P.2d 89 (Colo. App. 1982); Moore & Co. v. Williams, 657 P.2d 984 (Colo. App. 1982); Kendall v. Costa, 659 P.2d 715 (Colo. App. 1982); Falzon v. Home Ins. Co., 661 P.2d 696 (Colo. App. 1982); Ground Water Comm'n v. Shanks, 658 P.2d 847 (Colo. 1983); In re Hiner, 669 P.2d 135 (Colo. App. 1983); Yard v. Ambassador Bldr. Corp., 669 P.2d 1040 (Colo. App. 1983); Wright Farms, Inc. v. Weninger, 669 P.2d 1054 (Colo. App. 1983); In re Ward, 670 P.2d 1260 (Colo. App. 1983); Turchick & Kempter v. Hurd & Titan Constr., 674 P.2d 969 (Colo. App. 1983); Realty World-Range Realty, Ltd. v. Prochaska, 691 P.2d 761 (Colo. App. 1984); E.B. Jones Constr. Co. v. Denver, 717 P.2d 1009 (Colo. App. 1986); In re Allen, 724 P.2d 651 (Colo. 1986); People v. Caro, 753 P.2d 196 (Colo. 1988); Blesch v. Denver Publ'g Co., 62 P.3d 1060 (Colo. App. 2002). II. Clerical Mistakes. The failure to include interest is an oversight or omission and falls squarely within this rule. Crosby v. Kroeger, 138 Colo. 55, 330 P.2d 958 (1958); Reasoner v. District Court, 197 Colo. 516, 594 P.2d 1060 (1979). Since the statute required an award of prejudgment interest and failure to include such interest was merely a ministerial oversight, passage of five years since entry of the award would not prevent the addition of prejudgment interest, even though the original amount of the award had been satisfied. Brooks v. Jackson, 813 P.2d 847 (Colo. App. 1991). It is not error for a court to correct a judgment by including interest when the omission is called to its attention. Crosby v. Kroeger, 138 Colo. 55, 330 P.2d 958 (1958). An error in the calculation of interest is merely clerical and does not require court intervention and stay of execution. Schaffer v. District Court, 172 Colo. 43, 470 P.2d 18 (1970). Where the written, final decree does not reflect the oral findings of fact and an earlier order of the court, the decree is not in accord with the expectations and understanding of the court and the parties and that is the type of error section (a) of this rule is designed to remedy. Reasoner v. District Court, 197 Colo. 516, 594 P.2d 1060 (1979). This rule provides that a trial court may correct an oversight while the case is pending on appeal, provided leave of the appellate court is obtained. Callaham v. Slavsky, 153 Colo. 291, 385 P.2d 674 (1963). Language of the order of remand was sufficiently broad to authorize the trial court's amendment of its order. Flatiron Paving Co. v. Wilkin, 725 P.2d 103 (Colo. App. 1986). Where the failure is not that of a judge in entering an incorrect judgment or decree, or that of a clerk in incorrectly recording the proceedings had in a case, but rather, it is the attorney's failure to prosecute with due diligence the proceedings which he has commenced on behalf of a plaintiff, then, under these circumstances, relief is properly denied under section (a) of this rule. Hatcher v. Hatcher, 169 Colo. 174, 454 P.2d 812 (1969). Attorney's failure to proceed diligently not clerical error. Unexcused attorney failure to diligently proceed on behalf of his client does not constitute clerical error justifying relief under section (a). Cavanaugh v. State Dept. of Soc. Servs., 644 P.2d 1 (Colo. 1982), appeal dismissed for want of substantial federal question, 459 U.S. 1011, 103 S. Ct. 367, 74 L. Ed. 2d 504 (1982), reh'g denied, 460 U.S. 1104, 103 S. Ct. 1806, 76 L. Ed. 2d 369 (1983). Where the record reflects the court's intent to include amounts owing under a contract, the amount due under the contract was virtually undisputed, and the court made extensive findings that the contract was wrongfully terminated, it was judicial error and correctable under section (a) when the court omitted such amounts from its final order. Diamond Back Servs., Inc. v. Willowbrook Water, 961 P.2d 1134 (Colo. App. 1998). Where plaintiff filed a motion under C.R.C.P. 59 for post-judgment relief for a clerical error made by the court for failure to include the amount unpaid in a wrongfully terminated contract, the court's failure to rule on the C.R.C.P. 59 motion did not bar the plaintiff from seeking relief under section (a) of this rule. Diamond Back Servs., Inc. v. Willowbrook Water, 961 P.2d 1134 (Colo. App. 1998). A motion under section (a) is limited to making a judgment speak the truth as originally intended, and not intended to relitigate the matter before the court. Diamond Back Servs., Inc. v. Willowbrook Water, 961 P.2d 1134 (Colo. App. 1998). A motion or order under section (a) does not extend the time for filing a notice of appeal of the underlying judgment. An order clarifying the original judgment relates back to the time of the filing of the initial judgment and does not extend the time for appeal of that judgment. In re Buck, 60 P.3d 788 (Colo. App. 2002). Clerical error in a verdict form does not include an alleged error that either alters the legal effect of the jury's verdict or addresses the jury's misunderstanding or misapplication of the court's instructions. Clerical error corrections to a jury's verdict are disfavored. Stewart v. Rice, 47 P.3d 316 (Colo. 2002). Use of Larimer county as the venue defendant had erroneously identified on the caption of the proposed order authorizing foreclosure sale was a clerical error that did not affect its validity. Colorado law looks to the substance of a pleading and not to the form of its caption. Moreover, under section (a), courts have the power to correct a clerical error in an order. Upon defendant's motion brought under section (a), district court magistrate corrected the clerical error by issuing an amended order, nunc pro tunc. Estates in Eagle Ridge, LLLP v. Valley Bank & Trust, 141 P.3d 838 (Colo. App. 2005). Equipment failure resulting in the lack of a complete transcript is not a clerical error. Correction of clerical errors under section (a) is a matter within the discretion of the trial court, and the court here did not abuse its discretion in ruling that plaintiff's motion for a new trial based on equipment failure was not a clerical error as contemplated by section (a). In re McSoud, 131 P.3d 1208 (Colo. App. 2006). III. Mistake; Inadvertence; Surprise; Excusable Neglect; Fraud; Etc. A. In General. Law reviews. For article, "Appellate Procedure and the New Supreme Court Rules", see 30 Dicta 1 (1953). For article, "One Year Review of Appeals and Agency", see 33 Dicta 13 (1956). For article, "One Year Review of Civil Procedure and Appeals", see 36 Dicta 5 (1959). For note, "Res Judicata - Should It Apply to a Judgment Which is Being Appealed?", see 33 Rocky Mt. L. Rev. 95 (1960). For note, "Batton v. Massar: The Finality of Colorado Adoptions", see 35 U. Colo. L. Rev. 314 (1963). Authority for relief from a judgment order or proceeding is conferred in an appropriate proceeding by section (b) of this rule. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964). It is incumbent upon one to prove mistake, inadvertence, surprise, excusable neglect, or fraud or that a judgment is void because no service was had upon him. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957). In order to be entitled to relief under this rule, a defendant has to demonstrate to the trial court either mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, or other misconduct on the part of plaintiff. Eisenson v. Eisenson, 158 Colo. 394, 407 P.2d 20 (1965). Party seeking relief from judgment must demonstrate by clear, strong, and satisfactory proof that such relief is warranted. Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995). A motion to vacate a judgment must allege a defense which is "prima facie" meritorious. Henritze v. Borden Co., 163 Colo. 589, 432 P.2d 2 (1967). A meritorious defense must be stated with such particularity that the court can see that it is a substantial and meritorious defense, and not merely a technical or frivolous one. Henritze v. Borden Co., 163 Colo. 589, 432 P.2d 2 (1967). This rule prescribes the conditions upon which a court may relieve a party from a final judgment. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957). Motions for relief from a final order are governed by this rule under which the time for filing such motions is expressly limited to six months. Love v. Rocky Mt. Kennel Club, 33 Colo. App. 4, 514 P.2d 336 (1973). To be entitled to have a judgment vacated or set aside, a disadvantaged party must bring himself within the terms and conditions of this rule. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964). Surety bond not required. Section (b) of this rule, providing that a court may set aside a judgment upon such terms as may be just, does not warrant an order of court requiring defendants to post a surety bond in the full amount of a plaintiffs' claim as a condition to having their defense heard. Prather v. District Court, 137 Colo. 584, 328 P.2d 111 (1958); Rencher v. District Court, 160 Colo. 523, 418 P.2d 289 (1966). This rule provides for the granting of relief from judgments entered by mistake, inadvertence, surprise, excusable neglect, fraud, etc. Prather v. District Court, 137 Colo. 584, 328 P.2d 111 (1958). Section (b) of this rule permits a court to relieve a party from a final judgment or order for "mistake, inadvertence, surprise, or excusable neglect". Burson v. Burson, 149 Colo. 566, 369 P.2d 979 (1962); Dept. of Welfare v. Schneider, 156 Colo. 189, 397 P.2d 752 (1964); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995). A court may set aside a judgment in favor of a debtor if the judgement was entered into in violation of the automatic stay provision of the federal bankruptcy code. McGuire v. Champion Fence & Contstr., Inc., 104 P.3d 327 (Colo. App. 2004). Relief under section (b) is limited to setting aside an order or judgment. It is beyond the authority of a court to grant additional affirmative relief, such as reformation of a settlement agreement, in instances of fraud, misrepresentation, or other misconduct. Affordable Country Homes, LLC v. Smith, 194 P.3d 511 (Colo. App. 2008). Father's motion for relief not time-barred because judgment was void. Where notice through publication was inadequate because birth mother made fraudulent misrepresentations to the court, birth father was deprived of his constitutional right to due process, thus making the judgment terminating his parental rights void by default. The requirements of due process take precedence over statutory enactments. In re C.L.S., 252 P.3d 556 (Colo. App. 2011). C.R.C.P. 11 imposes sanctions upon those who violate its provisions, it does not preclude relief under section (b)(1) of this rule. Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995). Relief under section (b) is available for judgments entered pursuant to § 13-17-202 . Domenico v. Sw. Props. Venturez, 914 P.2d 390 (Colo. App. 1995). Responsibility for reasons under clause (1) in the first sentence of section (b) shall be of party. The mistake, inadvertence, surprise, or excusable neglect subject to correction under this rule must be by a party to the action or his legal representative. Columbia Sav. & Loan Ass'n v. District Court, 186 Colo. 212, 526 P.2d 661 (1974). Acceptance under judgment waives right to review. A party who accepts an award or legal advantage under a judgment normally waives his right to any review of the adjudication which may again put in issue his right to the benefit which he has accepted. Farmers Elevator Co. v. First Nat'l Bank, 181 Colo. 231, 508 P.2d 1261 (1973). A motion to vacate upon any of the grounds must be made within a "reasonable time". Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969). A motion to vacate judgment must be filed within a "reasonable time" under this rule. Salter v. Bd. of County Comm'rs, 133 Colo. 138, 292 P.2d 345, cert. denied, 352 U.S. 829, 77 S. Ct. 37, 1 L. Ed. 2d 48 (1956). For purposes of motion based on evidence of perjury, there is a critical difference between perjury and the mere presence of factual conflicts or deficiencies in the evidence; proponent must show that discrepancies or inaccuracies in testimony were not the result of the usual shortcomings inherent in human perception and memory but rather were the result of a willful fabrication of evidence bearing on a material issue. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999). In dissolution of marriage case trial court did not abuse its discretion in denying husband's motion under section (b)(2) even though husband contended wife undervalued, omitted, or otherwise hid marital assets at dissolution of marriage hearings where husband did not show that such alleged discrepancies or inaccuracies in wife's testimony resulted from a willful fabrication of evidence. In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999). Denial of motion for new trial upheld where newly discovered evidence allegedly demonstrating that plaintiff perjured himself at trial was equally consistent with theory that plaintiff's perceptions and recollections of accident honestly differed from those of certain other witnesses. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991). Denial of motion for new trial upheld where intentional misconduct was ameliorated before and during trial. Court held that there was no reason to presume that defendant's misconduct substantially impaired plaintiff's ability to prepare for and proceed at trial. Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 (Colo. App. 2007). Relief from the operation of a judgment alleged to have resulted from mistake must be pursued by motion, to be made within a "reasonable time". Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964). "Any other reason justifying relief" language of section (b)(5) encompasses newly discovered evidence. A motion for relief from a judgment pursuant to this rule on the ground of newly discovered evidence should be resolved by the same criteria applicable to a C.R.C.P. 59(d)(4) motion: Applicant must establish that the evidence could not have been discovered by the exercise of reasonable diligence and produced at the first trial; the evidence was material to an issue in the first trial; and the evidence, if admitted, would probably change the result of the first trial. S.E. Colorado Water Conservancy Dist. v. O'Neill, 817 P.2d 500 (Colo. 1991), aff'd, 854 P.2d 167 (Colo. 1993). Section (b)(5) is a residuary clause for application only in situations not covered by other sections in this rule. McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995). Section (b)(5) does not apply where motion is based on "fraudulent acts and misrepresentations". Instead, such a motion is subject to section (b)(2) and the corresponding six-month time limit. In re Adoption of P.H.A., 899 P.2d 345 (Colo. App. 1995). This rule may be used as a mechanism for obtaining relief from a final judgment due to a change in case law precedent. State Farm Mut. Auto. Ins. Co. v. McMillan, 925 P.2d 785 (Colo. 1996). However, while C.R.C.P. 59 gives a trial court "full power to correct any and all errors committed," under section (b)(5) of this rule, the erroneous application of the law is simply not a sufficient basis for relief. Spencer v. Bd. of County Comm'rs, 39 P.3d 1272 (Colo. App. 2001); SR Condos., LLC v. K.C. Constr., Inc., 176 P. 3d 866 (Colo. App. 2007). Section (b) of this rule requires any motion for relief of judgment on the grounds of mistake or fraud to be made within six months after judgment. Schaffer v. District Court, 172 Colo. 43, 470 P.2d 18 (1970). Less than five weeks is not unreasonable. A delay of less than five weeks, if the allegation of when they learned of the judgment be true, cannot be said to be unreasonable. Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969). Relief must be sought not more than six months after the judgment by section (b) of this rule. Burson v. Burson, 149 Colo. 566, 369 P.2d 979 (1962); Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964); Dept. of Welfare v. Schneider, 156 Colo. 189, 397 P.2d 752 (1964). Under section (b)(1) a motion to vacate must be filed within six months, or it is barred. Atlas Constr. Co. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979). Where a judgment resulted from a mistaken belief in the existence of a terminated order, this constitutes grounds for relief under section (b)(1), and the "reasonable time" limitation of this rule for avoiding the effects of the judgment upon such grounds cannot exceed six months. Sauls v. Sauls, 40 Colo. App. 275, 577 P.2d 771 (1977). Where one seeks to be relieved from the judgment more than six months after its entry, such attempt is too late. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964). A motion filed seven months after entry of judgment is filed too late. Fiant v. Town of Naturita, 127 Colo. 571, 259 P.2d 278 (1953); Salter v. Bd. of County Comm'rs, 133 Colo. 138, 292 P.2d 345, cert. denied, 352 U.S. 829, 77 S. Ct. 37, 1 L. Ed. 2d 48 (1956). Since each of the installments for support becomes a judgment when it accrues, the only relief from judgment on the grounds of fraud or mistake would pertain to those installments which became due six months or less before the final judgment. Schaffer v. District Court, 172 Colo. 43, 470 P.2d 18 (1970). Section (b) of this rule cannot be applied to bar a motion brought under § 14-10-122(1)(c) for retroactive modification of child support based on a mutually agreed upon change of physical custody. Section (b) of the rule imposes a time limit for the motion and is inconsistent with the procedure contemplated in the statute. In re Green, 93 P.3d 614 (Colo. App. 2004). A court has no authority to grant relief. Where a motion is filed after the six-month deadline required by this rule, a court would have had no authority to grant relief. AA Constr. Co. v. Gould, 28 Colo. App. 161, 470 P.2d 916 (1970). Where plaintiff's motion for reinstatement of the case was not timely filed within the specified six-month period following entry of the order of dismissal, the trial court was without authority to reinstate the case or to provide further relief. Love v. Rocky Mt. Kennel Club, 33 Colo. App. 4, 514 P.2d 336 (1973). When the limiting period has passed, an order vacating judgment is absolutely void for lack of jurisdiction. Elder v. Richmond Gold & Mining Co., 58 F. 536 (8th Cir. 1893); Empire Const. Co. v. Crawford, 57 Colo. 281, 141 P. 474 (1914); Bd. of Control v. Mulertz, 60 Colo. 468, 154 P. 742 (1916). Claim preclusion (otherwise known as res judicata) bars independent damages actions for wrongs committed in dissolution proceedings. After the six-month period following entry of judgment provided by section (b)(2), independent damages action for wrongs allegedly committed in the dissolution proceeding are barred. Gavrilis v. Gavrilis, 116 P.3d 1272 (Colo. App. 2005). There was no fraud upon the court in dissolution of marriage action where husband's fraudulent nondisclosure of assets and income was purely between the parties. In re Gance, 36 P.3d 114 (Colo. App. 2001). Void judgment may be vacated at any time regardless of time limits established by rules of civil procedure. Don J. Best Trust v. Cherry Creek Nat. Bank, 792 P.2d 302 (Colo. App. 1990). Independent equitable action permitted. The propriety of an independent equitable action to afford relief from a prior judgment is expressly permitted under the provisions of section (b) of this rule. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974). Six-month limitation has no application to independent equitable action. An independent action to obtain equitable relief from a prior judgment is not brought under section (b) of this rule, and, hence, the six months' time limitation contained in this rule has no application. Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963); Caldwell v. District Court, 644 P.2d 26 (Colo. 1982). An independent equitable action to afford relief from a prior judgment is not restricted by the six-month time limitation upon motions made under clauses (1) to (5) in the first sentence of this rule. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974). Because an independent equitable action is not brought under this rule, the six-month time limit of clauses (1) and (2) in the first sentence of section (b) do not apply; rather, an independent equitable action must only be brought within a "reasonable time". Atlas Constr. Co. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979). An independent equitable action may provide additional remedies. An independent equitable action to afford relief from a prior judgment may provide remedies in addition to those afforded under section (b) of this rule. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974). Essential criteria upon which relief may be granted in an equitable action to afford relief from a prior judgment contemplated by section (b) are as follows: (1) That the judgment ought not, in equity and good conscience, be enforced; (2) that there can be asserted a meritorious defense to the cause of action on which the judgment is founded; (3) that fraud, accident, or mistake prevented the defendant in the action from obtaining the benefit of his defense; (4) that there is an absence of fault or negligence on the part of defendant; (5) and that there exists no adequate remedy at law. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974); In re Gance, 36 P.3d 114 (Colo. App. 2001). Independent action to obtain equitable relief from prior judgment not brought under rule; rather, it is a new action, commenced in the same manner as any other civil action. Atlas Constr. Co. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979). Dismissal of judgment debtor's motion for relief under section (b)(4) on the basis of settlement agreement between judgment debtor and judgment creditor was proper where such motion was not timely filed and the court lacked jurisdiction since judgment debtor elected to litigate settlement agreement in a separate action. Tripp v. Parga, 764 P.2d 367 (Colo. App. 1988). A party may not use an independent equitable action to accomplish what it could have accomplished by appeal. In case where plaintiff argued that second complaint was an independent equitable action seeking relief from order dismissing his first complaint, plaintiff's proper remedy was to seek timely appellate relief. Therefore, district court properly dismissed plaintiff's second complaint. Kelso v. Rickenbaugh Cadillac Co., 262 P.3d 1001 (Colo. App. 2011). This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding. Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963). Claimant seeking relief through an independent equitable action based on fraud must establish extrinsic fraud as opposed to mere intrinsic fraud. A mere showing of intrinsic fraud, such as perjury or nondisclosure between the litigants concerning the subject matter of the original action, is insufficient. In re Gance, 36 P.3d 114 (Colo. App. 2001). Husband's concealment of income and assets in dissolution of marriage action pertained to the substance and merits of the litigation and involved the parties themselves; it therefore did not rise to the level of fraud necessary to support an independent equitable action to vacate the underlying permanent orders. In re Gance, 36 P.3d 114 (Colo. App. 2001). "Excusable neglect" sufficient to vacate an order results from circumstances which would cause a reasonably careful person to neglect a duty, and the issue of negligence is determined by the trier of fact. Craig v. Rider, 628 P.2d 623 (Colo. App. 1980), rev'd on other grounds, 651 P.2d 397 (Colo. 1982). Party's own negligence not excusable neglect. Where a party's own carelessness resulted in its failure to file a responsive pleading, this carelessness does not constitute excusable neglect. Biella v. State Dept. of Hwys., 652 P.2d 1100 (Colo. App. 1982); Johnston v. S.W. Devanney & Co., Inc., 719 P.2d 734 (Colo. App. 1986). In general, excusable neglect involves unforeseen occurrences that would cause a reasonably prudent person to overlook a required act in the performance of some responsibility. Failure to act because of carelessness and negligence is not excusable neglect. Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993). Reliance on opposing party's pleadings held to be "excusable neglect". A defendant's reliance upon the plaintiff's verified statement and pleadings appearing to drop the defendant from the action, coupled with the advice of an attorney that he need not be concerned about the proceedings, constitutes "excusable neglect" as a matter of law. People in Interest of C.A.W., 660 P.2d 10 (Colo. App. 1982). Reliance on district court's statements held to be "excusable neglect". A defendant's failure to move for a new trial, based on the district court's assurance that such a motion was unnecessary in order for the defendant to appeal, constitutes excusable neglect under this rule. Tyler v. Adams County Dept. of Soc. Servs., 697 P.2d 29 (Colo. 1985). Excusable neglect not found. Pro se plaintiff's failure to comply with notice provisions of § 24-10-109 does not constitute excusable neglect. Deason v. Lewis, 706 P.2d 1283 (Colo. App. 1985). The rule that negligence on the part of an attorney may constitute excusable neglect on the part of the client has no application if the client itself is also negligent. Johnson v. Capitol Funding, LTD., 725 P.2d 1179 (Colo. App. 1986). Common carelessness and negligence do not amount to excusable neglect and a party's conduct constitutes excusable neglect when the surrounding circumstances would cause a reasonably careful person similarly to neglect a duty. Guynn v. State Farm Mut. Auto Ins. Co., 725 P.2d 1162 (Colo. App. 1986). Defendant's assertion that its agent was without authority to enter into a contract with plaintiff was not excusable neglect. Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo. App. 1986). Conduct of a party's legal representative constitutes excusable neglect when surrounding circumstances would cause a reasonably prudent person to overlook a required act in the performance of some responsibility; however, common carelessness and negligence by the party's attorney does not amount to excusable neglect. Guevara v. Foxhoven, 928 P.2d 793 (Colo. App. 1996). Failure of settlement offer made by defendant's insurance attorney to specify whether offer addressed fewer than all of the claims between the parties, did not constitute excusable neglect. Guevara v. Foxhoven, 928 P.2d 793 (Colo. App. 1996). Excusable neglect does not constitute grounds for relief from the operation of C.R.C.P. 59(j). Sandoval v. Trinidad Area Health Ass'n, 752 P.2d 1062 (Colo. App. 1988). Relief from a judgment may be granted on equitable grounds. Continental Nat'l Bank v. Dolan, 39 Colo. App. 16, 564 P.2d 955 (1977). A motion under this rule cannot be overturned on appeal in the absence of an abuse of discretion by the district court. Front Range Partners v. Hyland Hills Metro., 706 P.2d 1279 (Colo. 1985); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995). Abuse of discretion will warrant reversal. While the grant or denial of relief from a judgment on equitable grounds is within the discretion of the trial court, an abuse of this discretion will warrant reversal. Continental Nat'l Bank v. Dolan, 39 Colo. App. 16, 564 P.2d 955 (1977); S.E. Colo. Water Conservancy Dist. v. O'Neill, 817 P.2d 500 (Colo. 1991), aff'd, 854 P.2d 167 (Colo. 1993); Blesch v. Denver Publ'g Co., 62 P.3d 1060 (Colo. App. 2002). It is error to deny relief where dismissal erroneously ordered on court's own motion. Where court on own motion dismissed action for failure to prosecute without complying with notice requirements of C.R.C.P. 41(b) and C.R.C.P. 121, § 1-10 (2), erroneous dismissal constituted sufficient reason to justify relief. Maxwell v. W.K.A. Inc., 728 P.2d 321 (Colo. App. 1986). Abuse of discretion found where trial court refused to set aside the damages portion of a judgment. Johnston v. S.W. Devanney & Co., Inc., 719 P.2d 734 (Colo. App. 1986). Abuse of discretion not found. Luna v. Fisher, 690 P.2d 264 (Colo. App. 1984); Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo. App. 1986). Existence of meritorious defense and lack of prejudice to the plaintiff are insufficient to show an abuse of discretion in denying a motion to set aside a default. Johnston v. S.W. Devanney & Co., Inc., 719 P.2d 734 (Colo. App. 1986). Even without tainted expert's testimony, trial court found that other evidence in the case supported the judgment. People ex rel. S.G., 91 P.3d 443 (Colo. App. 2004). This rule is not applicable to a motion to reform a property settlement agreement incorporated into a divorce decree, since C.R.C.P. 81(b) provides that the Rules of Civil Procedure shall not govern procedure and practice in divorce actions if in conflict with applicable statutes. Ingels v. Ingels, 29 Colo. App. 585, 487 P.2d 812 (1971). This rule is not applicable to a juvenile court's entry of an order terminating probation by mistake. The Colorado Rules of Civil Procedure apply only to juvenile matters that are not governed by the Colorado Children's Code. People in Interest of M.T., 950 P.2d 669 (Colo. App. 1997). District court erred in denying husband relief from provision of dissolution of marriage decree requiring him to pay part of his future social security benefits to wife. State law equitable estoppel principles cannot be applied to bar a party from challenging a judgment rendered void by the supremacy clause of the U.S. constitution. In re Anderson, 252 P.3d 490 (Colo. App. 2010). A decree determining property rights in a divorce matter is final and cannot be subsequently modified by reason of a change of circumstances. Ferguson v. Olmsted, 168 Colo. 374, 451 P.2d 746 (1969). Where a court may provide for custody of children by orders made "before or after" the entry of a final decree, the trial court may provide for the custody of the child even though the subject was not mentioned in the original decree. Kelley v. Kelley, 161 Colo. 486, 423 P.2d 315 (1967). Six-month limit applicable in child support action. Where defendant in a child support action alleged there was fraud, extrinsic to the record, perpetrated by plaintiff, unless the fraud alleged was such as to defeat the jurisdiction of the court, defendant was subject to the six-month limit of this rule. McNeece v. McNeece, 39 Colo. App. 160, 562 P.2d 767 (1977). Where defendant did not seek to reopen the divorce proceeding until approximately five years after entry of judgment, none of the grounds of C.R.C.P. 59 or this rule were available to him to reopen the divorce proceeding. McNeece v. McNeece, 39 Colo. App. 160, 562 P.2d 767 (1977). Clause (5) of section (b) is residuary clause, covering extreme situations not covered by the preceding clauses in section (b). Atlas Constr. Co. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979); Sisneros v. First Nat. Bank of Denver, 689 P.2d 1178 (Colo. App. 1984); Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987). A motion under this rule cannot be used to circumvent the operation of C.R.C.P. 59(j) unless the facts of the case constitute an "extreme situation" justifying relief from a judgment pursuant to clause (5) of section (b). Sandoval v. Trinidad Area Health Ass'n, 752 P.2d 1062 (Colo. App. 1988). Total lack of judicial review of property division provisions of a separation agreement constitutes an omission falling within the ambit of clause (5) of section (b). In re Seely, 689 P.2d 1154 (Colo. App. 1984). Reason alleged by a movant under clause (5) of section (b) must justify relief. Atlas Constr. Co. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979); Sisneros v. First Nat. Bank of Denver, 689 P.2d 1178 (Colo. App. 1984). Grievous jury misconduct raising sensitive issues of religion presents grounds for relief under clause (5) ("other reason") of section (b). Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987). Where there is misconduct of jurors or the intrusion of irregular influences in the course of a trial, the test for determining whether a new trial will be granted is whether such matters had capacity of influencing result. Butters v. Dee Wann, 363 P.2d 494 (1961); Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987). While trial court personally expressed belief that verdict would have been same with a "decent" jury, trial court made necessary finding, in setting aside judgment, that jurors' conduct had capacity of influencing verdict. Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987). Untimely assertion of federal statutory venue right is not an extreme situation justifying relief under clause (5) of section (b). Sisneros v. First Nat. Bank of Denver, 689 P.2d 1178 (Colo. App. 1984). Repeated assurances by the court clerk that the defendant's motion to alter and amend the judgment had been forwarded to the presiding judge when, in fact, no notification of said motion had been given to the judge did not constitute an "extreme situation" allowing relief under clause (5) of section (b). Sandoval v. Trinidad Area Health Ass'n, 752 P.2d 1062 (Colo. App. 1988). Defense not timely raised. The existence of a defense not timely raised does not constitute an extreme situation justifying relief from a default judgment under clause (5) of section (b). Sisneros v. First Nat. Bank of Denver, 689 P.2d 1178 (Colo. App. 1984). Changes in decisional law, even by the United States supreme court and even involving constitutionality, do not necessarily amount to the extraordinary circumstances required for relief pursuant to section (b)(5). Davidson v. McClellan, 16 P.3d 233 (Colo. 2001); SR Condos., LLC v. K.C. Constr., Inc., 176 P. 3d 866 (Colo. App. 2007). Jurisdictional prerequisite for review of action on section (b) motion. A motion for a new trial is a jurisdictional prerequisite for appellate review of a grant or denial of a section (b) motion when there has been a hearing involving controverted issues of fact. Rowe v. Watered Down Farms, 195 Colo. 152, 576 P.2d 172 (1978). Erroneous "in personam" decision may be vacated. A trial court may properly vacate its order of dismissal against a defendant where the original decision of the trial court to dismiss under the theory that the action was "in personam" and not "in rem" was erroneous. Linker v. Linker, 28 Colo. App. 136, 470 P.2d 882 (1970). When a defendant voluntarily pays a judgment, he is barred from questioning any technicalities, either of pleading or form, incident to the entry of the judgment. Salter v. Bd. of County Comm'rs, 133 Colo. 138, 292 P.2d 345, cert. denied, 352 U.S. 829, 77 S. Ct. 37, 1 L. Ed. 2d 48 (1956). Misplaced reliance on the advice of counsel is not in itself sufficient grounds for granting of relief under section (b) of this rule. BB v. SS, 171 Colo. 534, 468 P.2d 859 (1970); Luna v. Fisher, 690 P.2d 264 (Colo. App. 1984). Where a party commits a cause to the agency of an attorney, the neglect, omission, or mistake of such attorney resulting in the rendition of a judgment against the party is available to authorize the vacation of the judgment. Fidelity Fin. Co. v. Groff, 124 Colo. 223, 235 P.2d 994 (1951); Domenico v. Sw. Props. Venture, 914 P.2d 390 (Colo. App. 1995). When a trial court permits counsel to withdraw from a case without notice to his client and then adjudicated his rights "ex parte", a judgment entered is void for lack of due process. Dalton v. People in Interest of Moors, 146 Colo. 15, 360 P.2d 113 (1961); Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969). Malfeasance by attorney, consisting of failure to notify clients of motion for summary judgment or to respond to motion while under suspension from the practice of law, furnished grounds for relief from judgment where clients were unaware of the motion or of their attorney's suspension. Valley Bank of Frederick v. Rowe, 851 P.2d 267 (Colo. App. 1993). Action of trial court renders judgment void if defendants had no notice. The action of the trial judge in permitting the withdrawal of counsel and proceeding to judgment "ex parte" constituted a failure to protect the constitutional right of defendants to their day in court and renders judgment void if defendants had no notice that their counsel intended to seek permission to withdraw. Calkins v. Smalley, 88 Colo. 227, 294 P. 534 (1930); Blackwell v. Midland Fed. Sav. & Loan Ass'n, 132 Colo. 45, 284 P.2d 1060 (1955); Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969). Where a judgment is entered upon a cognovit note without notice to the defendant, a motion in apt time is thereafter filed to set aside the same, and a meritorious defense is tendered by answer, it is the duty of a court to vacate the judgment and try the case on the merits. Richards v. First Nat'l Bank, 59 Colo. 403, 148 P. 912 (1915); Commercial Credit Co. v. Calkins, 78 Colo. 257, 241 P. 529 (1925); Mitchell v. Miller, 81 Colo. 1, 252 P. 886 (1927); Denver Indus. Corp. v. Kesselring, 90 Colo. 295, 8 P.2d 767 (1932); Lucero v. Smith, 110 Colo. 165, 132 P.2d 791 (1943); Prather v. District Court, 137 Colo. 584, 328 P.2d 111 (1958); Rencher v. District Court, 160 Colo. 523, 418 P.2d 289 (1966). If a judgment of dismissal has terminated and put an end to, a case remains final for all purposes and is unaffected by a motion to grant relief therefrom. Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49 (1955); Robles v. People in Interest of Robles, 150 Colo. 462, 373 P.2d 701 (1962). A motion under section (b) does not affect the finality of a judgment or suspend its operation. Robles v. People in Interest of Robles, 150 Colo. 462, 373 P.2d 701 (1962). A motion, in any event, is directed to the discretion of a trial court. Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49 (1955); Robles v. People in Interest of Robles, 150 Colo. 462, 373 P.2d 701 (1962). When one files such a motion, he admits for all practical purposes that the judgment is in all respects regular on the face of the record, but asserts that the record would show differently except for mistake, inadvertence, or excusable neglect on behalf of counsel or client. Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49 (1955); Robles v. People in Interest of Robles, 150 Colo. 462, 373 P.2d 701 (1962). The ruling on a motion to "dismiss and vacate" is not a final judgment from which an appeal will lie. Fiant v. Town of Naturita, 127 Colo. 571, 259 P.2d 278 (1953); Salter v. Bd. of County Comm'rs, 133 Colo. 138, 292 P.2d 345, cert. denied, 352 U.S. 829, 77 S. Ct. 37, 1 L. Ed. 2d 48 (1956). Where defendant in prior action sought and obtained dismissal for failure to prosecute but did not specifically request dismissal with prejudice, order of dismissal did not so specify, and no good cause was shown for defendant's failure to request dismissal with prejudice, subsequent "clarification" of order to specify dismissal with prejudice was ineffective. McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991). Where a judgment is set aside on jurisdictional grounds, it is vacated and of no force and effect. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). Party who lets judgment become final without objection to the court's jurisdiction is precluded from attacking the subject matter jurisdiction through a motion under this rule. In re Mallon, 956 P.2d 642 (Colo. App. 1998). Original judgment opened. Where a judgment is set aside on grounds other than those challenging the jurisdiction of the court, the judgment is opened and the moving party, after a showing of good cause and a meritorious defense, will be permitted to file an answer to the original complaint and participate in a trial on the merits. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). If an issue is not res judicata, the district court's judgment may be challenged as void through a motion pursuant to section (b) of this rule to vacate the judgment or through an independent action. Moore & Co. v. Williams, 672 P.2d 999 (Colo. 1983). A void judgment is a judgment entered where jurisdictional defects exist and is a nullity, whereas an erroneous judgment is one rendered in accordance with method of procedure and practice allowed by law but is contrary to law; if a trial court has jurisdiction, it may correct an erroneous judgment. In re Pierce, 720 P.2d 591 (Colo. App. 1985). Judgment rendered without jurisdiction is void and may be attacked directly or collaterally. In re Stroud, 631 P.2d 168 (Colo. 1981). Judgment entered on legal holiday not void and becomes effective next business day. Section 13-1-118(1) does not provide that any judicial business transacted in violation of its provisions is void. Rather, the statute is silent as to the effect of any order entered or other judicial business transacted in violation of its prohibitions. Section 13-1-118(2) provides that the effect of having a day fixed for the opening of a court that falls on a prohibited day is that "the court shall stand adjourned until the next succeeding day." Thus, the effect of the trial court's entry of an order reviving judgment on a legal holiday was not to invalidate the order but, rather, merely to postpone its effective date until the next day the courts were open. Because the challenged judgment is not void, section (b)(3) of this rule provides no basis for relief. Arvada 1st Indus. Bank v. Hutchison, 15 P.3d 292 (Colo. App. 2000). Government agencies treated same as other litigants. Absent an express statutory mandate to the contrary, government agencies are to be treated as would be any other litigant while before the court. Biella v. State Dept. of Hwys., 652 P.2d 1100 (Colo. App. 1982). C.R.C.P. 6(b)(2) is controlling over this rule as to whether a trial court may extend the period of time for filing a motion for new trial under C.R.C.P. 59(b) (now (a)(1)) after the original filing period has expired. Liberty Mutual Ins. Co. v. Safeco Ins. Co., 679 P.2d 1115 (Colo. App. 1984). Where court had lost jurisdiction under C.R.C.P. 59(b) (now (a)(1)), court had jurisdiction to set aside judgment under clause (5) of section (b) of this rule without unduly expanding the contours of the rule or undercutting C.R.C.P. 59(b) (now (a)(1)). Canton Oil v. District Court, 731 P.2d 687 (Colo. 1987). Only issues contained in a motion under this rule are properly before the appellate court for review; constitutional objections not appearing in the motion will not be reviewed. Front Range Partners v. Hyland Hills Metro., 706 P.2d 1279 (Colo. 1985). No evidentiary hearing need be conducted by the trial court considering a motion under this rule nor is there an abuse of discretion when a trial court determines such a motion without conducting such a hearing. Front Range Partners v. Hyland Hills Metro., 706 P.2d 1279 (Colo. 1985). But nothing in this rule prevents a trial court from holding an evidentiary hearing on a motion under this rule if such a hearing would assist in reaching a just determination of the issues raised by the motion. Sharma v. Vigil, 967 P.2d 197 (Colo. App. 1998). Reversal of conviction in criminal case grounds for relief from monetary forfeiture judgment. While a conviction is not required in every civil forfeiture case, the reversal of the conviction was relevant here because the court relied on that conviction in its forfeiture judgment. The physical evidence upon which the trial court had based its forfeiture judgment had been determined to be unconstitutionally seized, making it relevant. People v. $11,200 U.S. Currency, __ P.3d __ (Colo. App. 2011), rev'd on other grounds, 2013 CO 64, 313 P.3d 554. Section (b) permits a trial court to rectify or reverse a prior judgment that, in light of new facts, is now erroneous. However, a holding that the forfeiture against a defendant's property was void does not equate to a ruling that defendant is entitled to a return of the property or monetary relief from the government because a motion under section (b) is not a claim for the return of property. To the extent that the trial court's order set aside the forfeiture judgment, the order was consistent with the power expressly granted the court under section (b). Section (b) does not empower the trial court to go further and order return of the property. People v. $11,200.00 U.S. Currency, 2013 CO 64, 313 P.3d 554. B. Default Judgments. Law reviews. For comment on Self v. Watt, appearing below, see 26 Rocky Mt. L. Rev. 107 (1953). For comment on Coerber v. Rath appearing below, see 45 Den. L.J. 763 (1968). Annotator's note. For annotations relating to motions to vacate default judgments, see the annotations under the analysis title "IV. Setting Aside Default" under C.R.C.P. 55. Review by writ of error is proper procedure. The only proper procedure to secure review of a trial court's order granting an application to set aside a default judgment is by writ of error after final judgment, not prohibition. Stiger v. District Court, 188 Colo. 403, 535 P.2d 508 (1975). Section (b) of this rule sets forth the procedure to be followed where one seeks to set aside a judgment entered by default. Fraka v. Malernee, 129 Colo. 87, 267 P.2d 651 (1954). Section (b)(3) is the proper basis for vacating a default judgment if the defaulting party's due process rights were violated by failure to receive notice of a default judgment. First Nat. Bank of Telluride v. Fleisher, 2 P.3d 706 (Colo. 2000). Section (b) of this rule and C.R.C.P. 55(c) leave the matter of setting aside defaults and judgments entered thereon to the discretion of a trial judge. Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958). Allegations in a C.R.C.P. 55 motion for default are sufficient to assert a basis for relief from judgment on the basis of fraud. Salvo v. De Simone, 727 P.2d 879 (Colo. App. 1986). Motion for a new trial is a jurisdictional prerequisite for appellate review of denial of a motion to vacate a default judgment, unless the hearing on the motion to vacate does not involve "controverted issues of fact". Rowe v. Watered Down Farms, 195 Colo. 152, 576 P.2d 172 (1978). The granting or denial of an application to vacate a default based on excusable neglect rests in the sound judicial discretion of a trial court. Browning v. Potter, 129 Colo. 448, 271 P.2d 418 (1954); Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958). The determination of granting or denying relief under this rule rests in the sound discretion of the trial court on the particular facts of the case. Weeks v. Sigala, 32 Colo. App. 121, 509 P.2d 320 (1973). The determination of whether to vacate or set aside a default judgment is within the sound discretion of the trial court. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974). A trial court's determination of a motion to vacate a judgment under this rule will not be disturbed on appellate review in the absence of a clear abuse of discretion. Columbine Valley Constr. Co. v. Bd. of Dirs., 626 P.2d 686 (Colo. 1981). The underlying goal in ruling on motions to set aside default judgments is to promote substantial justice. Whether substantial justice will be served by setting aside a default judgment on the ground of excusable neglect is to be determined by the trial court in the exercise of its sound discretion. Craig v. Rider, 651 P.2d 397 (Colo. 1982). Where the moving party has delayed substantially in seeking to set aside a default judgment, relief is disfavored by the courts. Martinez v. Dixon, 710 P.2d 498 (Colo. App. 1985). The trial court's order on a motion for relief, based on a residuary clause covering extreme situations, may not be reversed absent an abuse of discretion. Fukutomi v. Siegel, 785 P.2d 147 (Colo. App. 1989). To warrant a reversal, it must appear that there is an abuse of the court's discretion. Browning v. Potter, 129 Colo. 448, 271 P.2d 418 (1954); Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958). The determination of granting or denying relief under this rule will not be disturbed on review unless it clearly appears that there has been abuse of that discretion. Weeks v. Sigala, 32 Colo. App. 121, 509 P.2d 320 (1973). Where service is not proper, judgment is void and may be challenged at any time. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992). Discretion of the court in considering any application to vacate a default is controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to serve, and not to impede or defeat, the ends of justice. Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974). A default judgment as to a party was properly set aside by the judge on the ground that he was not subjected to the personal jurisdiction of the court at the time of the judgment due to a lack of service of process because service had been served on his behalf on his alleged wife, but at the time of service, the couple had been divorced for over a month. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). Default judgment was not void because process was adequately served and trial court therefore had personal jurisdiction over defendant. In case where process was properly served upon defendant's registered agent pursuant to C.R.C.P. 4, agent's failure to timely respond because of his own carelessness and negligence did not constitute excusable neglect. Therefore, trial court erred in setting aside the default judgment pursuant to sections (b)(1) and (b)(3) of this rule. Goodman Assocs., LLC v. WP Mtn. Props., LLC, 222 P.3d 310 (Colo. 2010). Judgment must be final before time limitations apply. Where order of default was entered against one of two defendants but action remained pending and no C.R.C.P. 54(b) certification was obtained, timeliness of motion would be gauged in relation to date of dismissal of action against second defendant. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992). Where a motion is not filed within six months after the default was entered, then, under section (b) of this rule, a trial court is correct in denying the motion to vacate the default. Browning v. Potter, 129 Colo. 448, 271 P.2d 418 (1954). The trial court had no jurisdiction to hear, much less grant, a motion for relief from judgment filed more than six months after entry of judgment. Wesson v. Johnson, 622 P.2d 104 (Colo. App. 1980). Seventeen years is not a "reasonable time". Where for a period of more than 17 years one took no action to vacate or otherwise attack the validity of a default judgment, it can hardly be said that under such circumstances 17 years is a "reasonable time". Haskell v. Gross, 145 Colo. 365, 358 P.2d 1024 (1961). Petition to vacate such a judgment held filed in apt time. Senne v. Conley, 110 Colo. 270, 133 P.2d 381 (1943). In cases such as this, a defendant must establish his grounds for relief by clear, strong, and satisfactory proof. Browning v. Potter, 129 Colo. 448, 271 P.2d 418 (1954); Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); Moskowitz v. Michaels Artists & Eng'r Supplies, Inc., 29 Colo. App. 44, 477 P.2d 465 (1970). It is not sufficient to show that the neglect which brought about the default is excusable. Gumaer v. Bell, 51 Colo. 473, 119 P. 681 (1911); Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); Moskowitz v. Michaels Artists & Eng'r Supplies, Inc., 29 Colo. App. 44, 477 P.2d 465 (1970). To vacate a default, a mere showing of excusable neglect is not sufficient. Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961). A defendant must show a meritorious defense to the action. Gumaer v. Bell, 51 Colo. 473, 119 P. 681 (1911); Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); Moskowitz v. Michaels Artists & Eng'r Supplies, Inc., 29 Colo. App. 44, 477 P.2d 465 (1970); Weeks v. Sigala, 32 Colo. App. 121, 509 P.2d 320 (1973). The judge was acting within his jurisdiction under this rule when he set aside a default judgment on the ground of "excusable neglect" supported by a specific statement of meritorious defense. Weaver Constr. Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). A defense to the action "prima facie" meritorious must also appear. Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961). It must be stated with such fullness and particularity that the court can see it is substantial, not technical, meritorious, and not frivolous. Burr v. Allard, 133 Colo. 270, 293 P.2d 969 (1956); Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961). Where there were no reasons proffered to the trial court as grounds for relief under section (b) other than youth and indifference, the trial court's denial of motion to set aside default judgment was not an abuse of discretion. People in Interest of J.M.W., 36 Colo. App. 398, 542 P.2d 392 (1975). It is not the duty of the trial court to relieve one of the consequences incident to the mistakes of his counsel. Self v. Watt, 128 Colo. 61, 259 P.2d 1074 (1953). Where it is clear that defendants' counsel was negligent and that such neglect was the primary cause for their failure, counsel's neglect is inexcusable, but this neglect should not be imputed to the defendants. Coerber v. Rath, 164 Colo. 294, 435 P.2d 228 (1967). Gross negligence on the part of counsel resulting in a default judgment is considered excusable neglect on the part of the client entitling him to have the judgment set aside. Temple v. Miller, 30 Colo. App. 49, 488 P.2d 252 (1971); Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974). Gross negligence on the part of counsel, under certain circumstances, should be considered excusable neglect on the part of a client sufficient to permit the client to set aside a default judgment. Weeks v. Sigala, 32 Colo. App. 121, 509 P.2d 320 (1973). Although a court recognizes the gross neglect of counsel, yet enters a default, it unwarrantly punishes defendants whose only dereliction is the misplacing of confidence in their attorney. Coerber v. Rath, 164 Colo. 294, 435 P.2d 228 (1967). To hold that such reasons are inapplicable because a defendant failed to check the progress of the litigation is to make the client erroneously totally responsible for the attorney's negligent failure to comply with the rules of civil procedure. Temple v. Miller, 30 Colo. App. 49, 488 P.2d 252 (1971). Where one was, or should have been, aware that his interest in the action was adverse to another, his reliance on such individual does not constitute excusable neglect so as to justify vacating entry of default judgment. Moskowitz v. Michaels Artists & Eng'r Supplies, Inc., 29 Colo. App. 44, 477 P.2d 465 (1970). Where the record discloses that the defendant himself was guilty of negligence separate and apart from that of his counsel, the alleged negligence of counsel would not be considered as excusable neglect for purpose of setting aside default judgment. Weeks v. Sigala, 32 Colo. App. 121, 509 P.2d 320 (1973). The entry of a default judgment does not apply to a stipulated judgment. Where parties dealing at arm's length have stipulated for the entry of a judgment, it is not a default judgment in the true sense of the word, but a stipulated judgment; consequently, there is no mistake, inadvertence, surprise or excusable neglect. Kopel v. Davie, 163 Colo. 57, 428 P.2d 712 (1967). Where the parties to litigation, dealing at arm's length, stipulate for the entry of a judgment of dismissal, and they do not claim mistake, inadvertence, surprise, or excusable neglect, nor are any of the parties to the action seeking to have the order set aside, that judgment is final. Columbia Sav. & Loan Ass'n v. District Court, 186 Colo. 212, 526 P.2d 661 (1974). A default judgment may only be the subject of collateral attack when the trial court lacked jurisdiction over the parties or the subject matter. DeBoer v. District Court, 184 Colo. 112, 518 P.2d 942 (1974). Where a default judgment has been entered and made final, it is not a proper subject of collateral attack particularly by strangers to the original action, although the rule prohibiting such attack applies to parties as well. DeBoer v. District Court, 184 Colo. 112, 518 P.2d 942 (1974). Criteria to be utilized by court in ruling on a motion to vacate a judgment include whether the neglect that resulted in entry of judgment by default was excusable, whether the moving party has alleged a meritorious defense, and whether relief from the challenged order would be consistent with considerations of equity. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986); Dunton v. Whitewater West Recreation, Ltd., 942 P.2d 1348 (Colo. App. 1997); Goodman Assocs., LLC v. WP Mtn. Props., LLC, 222 P.3d 310 (Colo. 2010). The preferred procedure is to consider all three criteria in a single hearing, as evidence relating to one factor might shed light on another and consideration of all three factors will provide the most complete information for an informed decision. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986); Dunton v. Whitewater West Recreation, Ltd., 942 P.2d 1348 (Colo. App. 1997). Motion to vacate judgment under this rule on basis of excusable neglect and motion to set aside default judgment under C.R.C.P. 55(c) on the basis of failure to prosecute are sufficiently analogous to justify application of the same standards to either motion; thus, the same three criteria which are legal standard are applicable in both motions. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986). In determining whether a party has established excusable neglect to obtain relief, the court should not impute gross negligence of an attorney to his client for the purpose of foreclosing the client from relief. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986). Moving party must establish by factual averments, and not simply by legal conclusions, that claim previously dismissed was indeed meritorious and substantial. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986). In determining whether relief would be consistent with equitable considerations, court should take into account promptness of moving party in filing motion, fact of any detrimental reliance by opposing party on order or judgment of dismissal, and any prejudice to opposing party if motion were to be granted, including impairment of party's ability to adduce proof at trial in defense of claim. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986). The mere existence of some negligence by client does not serve as per se basis to automatically deny relief, where motion was made based upon excusable neglect. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986). Defendant failed to show excusable neglect where he failed to seek a continuance or communicate with the trial court in any manner while seeking to remove the case to federal court and failed to appear and participate at trial even though he knew the federal court had remanded the case back to state court. Blazer Elec. Supply Co. v. Bertrand, 952 P.2d 857 (Colo. App. 1998). Rule as basis for jurisdiction. Welborn v. Hartman, 28 Colo. App. 11, 470 P.2d 82 (1970); Morehart v. Nat'l Tea Co., 29 Colo. App. 465, 485 P.2d 907 (1971). Applied in Finegold v. Clarke, 713 P.2d 401 (Colo. App. 1985).
For stay of proceedings to enforce judgments, see C.R.C.P. 62(b); for setting aside default, see C.R.C.P. 55(c).