300 P. 81 | Cal. Ct. App. | 1931
Plaintiff filed her action in the court below for divorce on the grounds of cruelty. She sought the custody of the two minor children of the parties, a daughter, Eileen, of the age of about six years, and a son, David, of the age of about three years, and asked for a division of the community property and for alimony and money with which to support the minor children. Defendant filed a cross-complaint seeking a divorce on the grounds of cruelty, asking custody of the minor children and a division of the community property in accordance with an agreement executed between the parties after the filing of the original complaint and before the filing of the cross-complaint. Plaintiff filed a supplemental complaint in which she sought to have the contract dividing the community property and agreeing that the custody of children ultimately be given to defendant, set aside and annulled.
After a trial lasting a number of days the court found in favor of plaintiff on her allegation of cruelty; that the property settlement was a fair, just and equitable division of the property of the parties; that the plaintiff was not, and that the defendant was, a fit and proper person to have the custody of the children and that such custody be awarded to plaintiff.
Findings of fact and conclusions of law were signed and filed on the second day of July, 1928, as was an interlocutory decree of divorce. No motion for a new trial was made and no appeal taken from this interlocutory decree.
On July 13, 1928, plaintiff served a notice of motion, notifying the defendant that on July 19, 1928, she would move the trial court "for an order modifying the interlocutory decree and judgment of divorce heretofore signed and entered in the above entitled matter", and further that she would also move the court "for an order sustaining the objection of plaintiff and cross-defendant to the findings *462 of fact heretofore signed and filed in the above entitled matter".
Upon the hearing of the motion, the trial court ordered amended findings of fact and conclusions of law as well as an amended interlocutory decree of divorce prepared. These were signed and filed on August 13, 1928. Defendant has prosecuted this appeal from this amended interlocutory decree.
In the amended findings of fact there was stricken out of the original findings, the finding that the plaintiff was not a fit and proper person to have the care, custody and control of the childern of the parties, and in the amended findings the court found that both the plaintiff and defendant were fit persons to have this right given to them. It further found that the custody of David Gury should be awarded to the plaintiff and the custody of Eileen Gury to the defendant. It further found that the defendant should pay to the plaintiff $30 per month for the support of David. The amended interlocutory decree of divorce followed the amended findings of fact and conclusions of law in making the changes above indicated. In all other respects the amended findings and the amended interlocutory decree followed the provisions of the original documents. Both the original findings and the amended findings commence as follows: "This cause came on for trial on the 8th day of June, 1928, in Dept. 38 of the above named Court, before the Hon. W.D. McConnell, Judge, and was regularly tried and continued from day to day and was concluded on June 13th, 1928; plaintiff and cross-defendant and defendant and cross-complainant both being present in Court and represented by respective counsel, Goodwin E. Knight, Esq., for plaintiff and cross-defendant, and Marion P. Betty, Esq., for defendant and cross-complainant. Evidence both oral and documentary, having been produced and the Court being fully advised in the premises, makes its Findings of Fact and Conclusions of Law as follows:"
The interlocutory decree and the amended interlocutory decree also both commence as follows: "This cause came on for trial on the 8th day of June, 1928, in Department 38 in the above named Court, before the Hon. W.D. McConnell, Judge, and was regularly tried and continued from day to day and was concluded on June 13th, 1928; plaintiff *463 and cross-defendant and defendant and cross-complainant both being present in court, and represented by respective counsel, Goodwin E. Knight, Esq., for plaintiff and cross-defendant, and Marion P. Betty, for defendant and cross-complainant, evidence, both oral and documentary, having been introduced and the court being fully advised in the premises, the cause having been submitted, and the court having rendered, made, and filed its decision in writing herein, consisting of findings of fact and conclusions of law; Now, therefore, in accordance therewith, it is ordered, adjudged and decreed,"
The sole question to be decided upon this appeal is whether or not the trial court had the authority to amend the findings of fact and conclusions of law and the interlocutory decree of divorce in the manner indicated without a motion for a new trial, an appeal, or a proceeding to correct them under the provisions of section 473 of the Code of Civil Procedure.
The questions decided in the case of O'Brien v. O'Brien,
When the finding of fact and judgment were filed in the O'Brien case no provision was made for alimony or counsel fees for the plaintiff. Some time after the entry of judgment the plaintiff moved the trial court to modify the judgment, which motion was granted. In deciding the case the Supreme Court said:
"Nothing further appears until on February 18, 1897, when the court made an order amending the decree of July 25, 1895, nuncpro tunc, by inserting at the end thereof the following: `It is ordered that the question of alimony and counsel fees be reserved for further consideration,' on the ground that the omission of this reservation `was the result of clerical misprision and error, and that the amendment thereof would be in furtherance of justice.' The appeal is from this order. . . . The principal question *464
is whether the court had the power to amend the judgment. It was said in Egan v. Egan,
In the case of Chavez v. Scully,
The case of County of Los Angeles v. Rindge,
In the case of McConnville v. Superior Court,
"But under either view of the matter the petitioner is, we think, precluded from the remedy sought. If the amendment be regarded as having been made to correct a mere clerical error, the first judgment stands as the final judgment of the court, and, of course, the second motion for a new trial was properly dismissed. On the other hand, if the correction was of a judicial error, the order of the court directing the amendment was a nullity; the amendment made was void and no motion for a new trial designating such an order as that sought to be set aside need be considered or heard by the trial court."
In the case of McKannay v. McKannay,
"But it is equally well settled that judicial errors committed by the court in the rendition of its findings and judgments cannot be thus summarily corrected after the *466 entry of the judgment. In other words, where the decision or judgment is wrong in law the error upon which the decision or judgment rests cannot, after the entry of judgment, be reviewed and rectified by the court, summarily or on motion (23 Cyc. 866), but can be remedied only by granting a new trial or on appeal (citing cases). We are convinced that the error sought to be corrected by the order appealed from here was not a clerical one, as stated in said order, but was clearly a judicial error that could be rectified, after the entry of judgment, only by granting a new trial or on appeal.
"In the case of O'Brien v. O'Brien, supra, the findings were insufficient in law because the court failed to find upon the issue of alimony. It was held on appeal that the error was a judicial one that could not be corrected by an order nunc protunc, but only by motion for new trial or on appeal. In FirstNat. Bank of Fresno v. Dusy, supra, which was a foreclosure proceeding, the findings and decree were against law because the court omitted to provide therein for the disposition of the stock pledged as security for the debt. The error was held to be a judicial one, subject to correction only by new trial or on appeal. In Egan v. Egan, supra, the decree was invalid in law for the reason that it contained no adjudication of the property rights, which had been stipulated to by the parties. It was held that the error was not a clerical one, but a judicial one, which rendered the decree defective and that judicial error thus committed could be corrected only by an order granting a new trial or on appeal. Again, an oversight on the part of the court to render its judgment of dismissal `without prejudice' in accordance with the stipulation of the parties was likewise held to be a judicial error, and could not be corrected summarily or on motion." (Forrester v. Lawler,
[1] Under the rules clearly laid down in the foregoing decisions we have reached the conclusion that the errors sought to be corrected by the plaintiff through her motion to modify the findings and judgment were not clerical but were judicial and that therefore, they could not be corrected under the procedure adopted by her. The question of the fitness of both parties to have the custody of the children, as well as the question of the division of the community *467 property of the parties and support for the children were directly presented by the pleadings. There was much evidence offered in support of these allegations of the pleadings and if the witnesses of the defendant were to be believed, the finding that the plaintiff was not a fit person to have the custody of either or both of the children finds support in the evidence. The question of what order should be made for the custody of the children was also directly submitted to the trial court. Both these questions were decided by him and settled by the original findings and the judgment. Any mistake he made in his decision was an error of law and not a clerical error. This error of law could be reached only by a motion for a new trial or by an appeal.
Of course the question of the custody of the children may be presented to the trial court both before and after an interlocutory decree of divorce. The plaintiff may still attempt to gain the custody of either or both the children in a proper proceeding instituted under the provisions of section 138 of the Civil Code.
It follows from what we have said that the trial court was without authority to make the amended findings of fact and conclusions of law and the amended interlocutory decree of divorce from which this appeal is taken. The original findings of fact and conclusions of law and interlocutory decree of divorce signed and filed July 2, 1928, must be held to be the only findings of fact, conclusions of law, and interlocutory decree of divorce in this case.
The amended interlocutory decree of divorce filed on August 13, 1928, is reversed.
Barnard, P.J., and Jennings, J., concurred.
A petition for rehearing of this cause was denied by the District Court of Appeal on June 22, 1931. *468