Mabry v. BairdMabry v. Baird
Lead Opinion
This is an action for divorce and division of jointly acquired or community property brought by the plaintiff, Manila M. Mabry, against E. K. Mabry. At the close of all the evidence the trial court, on April 7, 1947, rendered judgment granting the plaintiff a divorce and dividing the property between plaintiff and defendant. It did not render judgment for attorneys fees as prayed for in plaintiff’s petition, but continued the matter of attorneys fees for a further hearing. The minute entry of the clerk on the trial docket evidencing the rendition of this judgment reads as follows:
“Ent. Comes on for further hearing. Decree to plaintiff & property settlement made all as per J. E. Cont. as to attorneys fees. (Van Meter)”
From the record it appears that the findings of the trial court as to a division of the property between the parties were to some extent specific. The property of the parties which the court undertook to divide comprised interests in oil and gas mining leases, mineral interests, insurance policies having a cash surrender value, corporate stock, bank accounts, household furniture, and office furniture in the defendant’s dental office. The trial court, although from the record it appears that a list of all the property involved was in its possession or available to it, did not make a specific division of all the particular properties involved, but after stating what specific property should be set apart to plaintiff as her separate property, and what property should be set apart to defendant as his separate property, and dividing certain items of personal property, stated that the remaining properties were to be divided equally between the parties and left the division thereof to the respective parties and their attorneys, such division to be contained in the journal entry of judgment to be prepared by the attorneys. It aрpears that the division of the property could not be agreed upon by the parties and their attorneys, and after one or two consultations with the trial judge, the parties were still in disagreement. Thereupon plaintiff, on May 3, 1947, filed in the cause an application stating that the court entered its decree in said cause on April 7, 1947, and made certain findings with reference to the jointly acquired property of the parties; that after the court made said decree the attorneys representing the plaintiff and defendant attempted to make a division of the jointly acquired property in accordance with said decree, but that they had been unable to agree to the satisfaction of their clients as to the decree of the court, and requested the court to clarify and make its decree more specific and certain as to certain items of property. In said application she also called the attention of the court to the fact that there was certain property apparently belonging to the defendant, or standing in his name, which the court in its decree did not dispose of, the same having been overlooked by the parties at the trial of the cause, and prayed the court to set the application down for hearing; permit the plaintiff to offer evidence, and that the court clarify and make more specific its intentions as to the manner in which it intended to make disposition of the properties of plaintiff
On May 19, 1947, plaintiff filed in said cause a motion for an order determining that no judgment was ever rendered in the cause, and in the alternative if a judgment had been rendered, for an order vacating the same. In this motion plaintiff alleged that there had been no final announcement of judgment in regard to the property settlement and attorneys’ fees, and that the action had been, by the death of dеfendant, abated as a matter of law; that if the judgment was rendered it should be vacated, since the defendant’s death removed the only ground which the court assigned for granting a divorce; that the death of the defendant had precluded any enjoyment on his part of the property accumulated by the parties by their joint efforts during their marriage, and that the judgment should be vacated and plaintiff permitted to take her share of the jointly acquired or community property by inheritance.
Thereafter on May 24, 1947, T. J. Mabry, a brother of E. K. Mabry, and Frank W. Mabry and Earl Mabry, nephews of E. K. Mabry, claiming to be the sole and only heirs at law of E. K. Mabry, filed a motion for revivor, which was granted, and thereupon these parties filed a petition in intervention asserting that judgment had been rendered on April 7, 1947, and requesting the court to deny' the motion of plaintiff to vacate the judgment if rendered, or to decree that no judgment had been rendered in the case. On May 27, 1947, all these motions and applications were set down for further hearing, additional evidence was heard, and on May 27, 1947, the court denied the motion to vacate and held that judgment was rendered on April 7th, and set the matter for June 5, 1947, for final settlement, all as per journal entry. On June 4th the court permitted the plaintiff to file an amendment to her original petition, setting forth that property which in her application to clarify the judgment she had stated was not testified to by the parties or considered by the court when the court rendered its judgment, or purported judgment, on April 7, 1947, and further alleging that while in her original petition she did not specifically allege that defendant was liable to her for her attorneys’ fees in the action, but did pray for the allowance of attorneys’ fees and costs, she now in the amendment alleged that she was entitled to have and recover from the dеfendant such reasonable allowance for attorneys fees as the court might fix and determine.
On June 5, 1947, the trial court heard evidence as to the value of the attorneys’ services to plaintiff, and additional evidence on the part of plaintiff with reference to certain accounts in the defendant’s office, and other property not included in the judgment of April 7th, and rendered a judgment in which for the first time the trial court properly decreed a specific division between parties of all the specific property acquired by them during coverture, which were included in and disposed of by the decree of April 7th. In this judgment the court also undertook to divide the additional properties about which no testimony had been offered, and the disposition of which had not been considered by the court on April 7th, and also fixed the amount of the attorneys’ fees to be awarded plaintiff’s attorneys out of the estate of defendant. The court found and held that the judgment rendered by it on April 7, 1947, was a final judgment and was intended to dispose of the property rights of the parties, and to grant a
From the record it appears that plaintiff did not file a motion for new trial as to the judgment of April 7th, but did file a motion for new trial from the judgment or order nunc pro tunc of June 5th. The trial court denied the motion for new trial as filed, and plaintiff appeals.
Plaintiff first contends that the pronouncement of the trial court on April 7, 1947, was not a final judgment, for the reason that it left the division of the property not specifically divided by the trial court at that time to be set forth in a formal journal entry of judgment, which the attorneys werе instructed to prepare and submit to the court for its approval. They say that this was not a judgment which specified clearly the relief granted to the parties in respect to their property rights, and that if a judgment was, in fact, rendered, the trial court should have specified and divided every item of the jointly acquired or community property of the parties, and should have stated which item, or what share in each item, was awarded to the plaintiff, and what to the defendant. In support of this contention they cite numerous cases such as Carrol v. State,
The rule announced in these authorities and sustained by many other cases cited and discussed by plaintiff is unquestionably correct, but when we apply that rule to the instant case we believe that the findings and order made by the trial court on April 7th were a sufficient determination of the property rights of plaintiff and defendant.
The findings and judgment of the trial court on April 7th were pronounced orally, and so far as thе record shows were not taken down by the court reporter so that they could be transcribed. But in the journal entry of judgment, or nunc pro tunc order, made on June 5, 1947, it is stated that on April 7th the trial court, after setting aside the property of the separate parties to them, specifically made disposition of part of the property, giving to defendant the equipment and professional business of the defendant located in the Medical Arts Building, Oklahoma City, a paid-up life insurance policy on the life of defendant, a promissory note held by the defendant on which was due the principal sum of $1,500, on сondition that the defendant pay to plaintiff the sum of $11,100 in cash, and that it also divided the defendant’s checking account in the sum of $9,300, after requiring certain payments to be made therefrom, and divided the cash in the possession of plaintiff, requiring her to account for and pay one-half thereof to the defendant. It then provided that all the rest, residue and remainder of properties, real or personal, standing in the names of plaintiff and defendant, respectively, should be divided equally between the parties; that plaintiff should account for and transfer and convey to the defendant a one-hаlf-interest in the property standing in her name, and that defendant should likewise account for and transfer and convey to plaintiff a one-half interest in the properties standing in his name, the details to be set forth in a formal journal entry of judgment.
From the record it appears that the properties to be divided, and which were not specifically divided by the trial court on April 7th, were composed of mineral interests and oil and gas leasehold interests, the amount and
That the plaintiff understood that the court had rendered final judgment on April 7, 1947, is also evidenced by the application to clarify the judgment filed by her on May 3, 1947, in which she states that the court entered its decree in said cause on April 7th, and made '¡certain findings with reference to the jointly acquired property of plaintiff and defendant, and that her attorneys and the attorneys for the defendant had attempted to make a division of the property in accordance with the court’s decree, by transferring titles to the various properties to each other, but had been unable to agree on such division to the satisfaction of their clients, and requested the trial court to make more clear and specific the division of the property in certain respects.
From a careful study of the record we reach the conclusion that the trial court intended to and did, on April 7, 1947, render judgment as to the divorce and as to the property rights of the parties, and that said judgment was a sufficient determination of the rights of the parties in the joint or community property so as to render further inquiry in their rights unnecessary. The fact that the judgment was not reduced to writing in a formal journal entry does not render it any less the judgment of the court. Taliaferro v. Batis,
“The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law on the facts as ascertained by the pleadings and verdict. A judgment is rendered, within the meaning of the law, at the time it is pronounced by the court and is final, valid and enforceable as between the parties from that date, without formal entry.”
Plaintiff’s second contention, that a divorce action abates on the death of a party prior to a final judgment is, we think, disposed of by what we have said above. Unquestionably, by the clear weight of authorities, the death of a party to a divorce action prior to rendition of a final judgment therein terminates the status or relationship оf marriage theretofore existing and leaves the parties as though the action had never been brought. Since we hold that the judgment of the trial court on April 7th, was a final judgment, the rule of law above announced and the authorities cited in support thereof by plaintiff have no application to the instant case.
Plaintiff’s third contention, that the judgment rendered on June 5, 1947, and evidenced by the journal entry of judgment filed on July 7, 1947, was not a judgment nunc pro tunc and could not be made the judgment of the court as of April 7th, is well taken and
In Marker v. Gillam,
“A nunc pro tunc entry is one made now of something which was actually previously donе, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission really had but omitted through inadvertence or mistake.”
We have many times held that orders nunc pro tunc can only be entered for the purpose of correcting errors in previous orders on judgments based on proceedings theretofore had. Courtney v. Barnett,
In Goldsborough v. Hewitt,
“The rights of the wife, therefore, in her husband’s estate, after a divorce is granted, are regulated and determined exclusively by the provisions of the decree of divorce, unless there is some valid contract between the husband and wife. When a wife, after the divоrce, seeks to assert any claim to any part of the husband’s property, homestead or otherwise, she must establish that right by the decree, or by a valid contract between herself and husband.”
To the same effect is Steiner v. Steiner,
As heretofore stated herein, the plaintiff, at the time of the rendition of the judgment of April 7th, was apparently satisfied therewith. Although she recognized the judgment as a final judgment she filed no motion for new trial; made
The motion to vacate the judgment and the motion asking the court to hold that its pronouncement of April 7th was not a judgment was filed, subsequent to the death of the defendant, in order that plaintiff might obtain the benefit of 84 O. S. 1941 §213, subdivision 2, and thus acquire title to all the property of the parties acquired by their joint efforts during coverture.
There was no allegation or statement in the motion to vacate or to declare the pronouncement of April 7th not a judgment setting forth any valid ground for the vacation of the judgment of April 7th, or which would justify the court in holding that it was not a valid judgment. We think the trial court properly denied said motion, and that its action in so doing was not error, but it erred when it reattempted to divide the property in a manner different from the division in the original judgmеnt of April 7th, and in attempting to divide property not considered or disposed of in the proceeding at the time that judgment was rendered, by order nunc pro tunc. That order could only set forth more plainly and clearly the manner in which the property considered by it at the time the judgment of April 7th was rendered should be equally divided between the parties.
Plaintiff also contends that the allowance of attorneys’ fees in the order nunc pro tunc, and the failure of the trial court to include such attorneys’ fees in the first judgment, showed that the trial court understood that the first judgment was not a final judgment, but was interlocutory only. We do not agree with this contention.
It is true that in Friedman v. Friedman,
The facts in the instant case, however, and the conduct of the parties, distinguish this case from the situation in the Friedman case. In the instant case there was no issue as between the parties over the question of attorneys’ fеes. The only reference to attorneys’ fees in plaintiff’s petition was in the prayer thereof, and we have often held that in the making of issues to be determined by the court the prayer constitutes no part of the petition. Harmon v. Hines,
Lastly, plaintiff contends that the trial court erred in distributing to the defendant a portion of her share of the community property for the reason that upon his death she became vested with an undivided one-half interest in all his property which was community property acquired during coverture. From the record it appears that in 1943 the parties filed an election in conformity with the 1939 law then in effect, to come under that law.
In the instant case the trial court, under authority of that statute, divided all the community property which the parties brought to its attention during the trial of the case equally between the parties, whether the title to such property was vested in the husband or wife. In so doing the trial court did not err.
The judgment of the trial court is reversed, with directions to embody in an order or journal entry nunc pro tunc a judgment specifically dividing the property of the parties as it was divided by its original judgment of April 7, 1947, and allowing the attorneys for plaintiff the fee fixed by it at the hearing on the matter of attorneys’ fees held by it on June 5, 1947, and for such other proceedings, if any are necessary, to correctly and completely record the judgment of April 7, 1947.
Dissenting Opinion
(dissenting in part). I agree with the majority opinion that the judgment entered on April 7, 1947, was final; but in my opinion the trial court had the right to modify its judgment during term time, and this is what it did. It is well settled in this jurisdiction that a trial court has the right, during the term in which a judgment is rendered and entered, to set the same aside, to vacate it, to correct it, or to modify it. McNac v. Kinch,
The majority opinion, by holding that the judgment of April 7th' was final and not subject to modification, avoids the necessity of answering some pertinent questions in this case the first of which is whether or not a divorce
Section 1052, Title 12, O. S. 1941, which is as follows:
“No action pending in any court shall abаte by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by death of the defendant. (R.L. 1910, §5280.)”,
does not cover a divorce action, and certainly, under the statute, such an action does not abate. A very thorough consideration of this question is found in Porter v. Lerch, 129 Ohio, 47,
The record in the case at bar shows only five instances where the judgment of April 7th was modified or changed by the judgment of June 5th. The first instance was in regard to the policy of life insurance with the New York Life Insurance Company for $10,700, which originally had been awarded to the defendant, and in the modified judgment was awarded to the plaintiff. In the second instance, the plaintiff was given a one-half interest in a $2,500 life insurance policy on the life of E. K. Mabry with the Reserve Loan Life Insurance Co. of Texas. In the third instance, the plaintiff was given a one-half interest in a note from George L. Baird to E. K. Mabry, in which she hаd not received any interest originally. In the fourth instance, she was given $825 in cash in lieu of her one-half interest in the burial lots in Rose Hill Burial Park in Oklahoma City. She had been awarded originally $11,100 in cash, and in lieu thereof was given a $10,700 life insurance policy, one-half interest in a $1,500 note, one-half interest in a $2,500 life insurance policy and $825 in lieu of one-half interest in the burial lots, or a total of $13,525. In the fifth instance, she was given a sun lamp, portable typewriter, and two paintings not mentioned in the original judgment of April 7th. In addition, the court made as equal division between the parties as was reasonable under the circumstances.
Sоmewhere in the past we have heard of that old maxim that “equity delights lo do justice, and that not by halves”, which undoubtedly means that in a case of equitable cognizance, as a divorce action is commonly recognized to be in this state, the court is interested in rendering a complete decree, adjusting all rights and protecting the parties against future litigation. See 30 C.J.S., Equity, §100, and §67 et seq. The majority opinion ignores that maxim and states that all of the parties’ rights have not been settled in this case and
I dissent from the action of the court in refusing to permit the trial court to modify the judgment of April 7th and to make a complete disposition of the case. The action of the trial court should have been affirmed in toto.