Berry v. Berry

• Decision Date: 20 March 1956
• Citation: 140 Cal.App.2d 50,294 P.2d 757
• Court: California Court of Appeals Court of Appeals
• Parties: Ernest V. BERRY, Plaintiff and Appellant, v. Blanche Beatrice BERRY, Defendant and Respondent. Ernest V. BERRY, Plaintiff, Respondent, and Cross-Appellant, v. Blanche Beatrice BERRY, Defendant, Appellant, and Cross-Respondent. Civ. 20974.

Page 757

294 P.2d 757

140 Cal.App.2d 50

Ernest V. BERRY, Plaintiff and Appellant, v. Blanche Beatrice BERRY, Defendant and Respondent.

Ernest V. BERRY, Plaintiff, Respondent, and Cross-Appellant, v. Blanche Beatrice BERRY, Defendant, Appellant, and Cross-Respondent.

Civ. 20974.

District Court of Appeal, Second District, Division 3, California.

March 20, 1956.

Frederick I. Frischling, Los Angeles, for Ernest V. Berry.

Jerry Giesler and Harold C. Holland, Beverly Hills, for Blanche Beatrice Berry.

VALLEE, Justice.

These are cross-appeals. Defendant appeals from a final decree of divorce; from an order adjudging plaintiff not to be in contempt; and from orders directing that an accounting be taken to determine half the net earnings of plaintiff from his personal services from January 1, 1950 to December 31, 1951 and other gains of his attributable to his energy, ability, and capacity from the operation of his business for the period from January 8, 1951 to July 7, 1953, to determine the community property, if any, appointing an auditor, fixing his fees, and awarding attorney's fees. Plaintiff appeals from part of the order directing that an accounting be taken.

On January 8, 1951 an interlocutory decree was entered granting defendant, as cross-complainant, a divorce from plaintiff. The decree ordered plaintiff to pay defendant for her support and maintenance $150 a month for twelve months only. It ordered plaintiff to pay defendant $39,410, described as community property, in 36 equal monthly installments 'without interest, and in addition thereto cross-complainant shall be and is awarded 1/2 of plaintiffs net earnings from his personal services from January 1st, 1950 to December 31, 1951.' Defendant appealed from the property provisions of the interlocutory decree. The decree was affirmed. Berry v. Berry, 117 Cal.App.2d 624, 256 P.2d 646. The remittitur was filed in the superior court on July 7, 1953.

On May 12, 1954, on application of defendant, two orders to show cause issued: one directing plaintiff to show cause why he should not be adjudged in contempt for failing to pay $660, the balance of the $39,410 he was ordered to pay defendant by the interlocutory decree, and for failing to render an accounting of his net earnings from his personal services for the period from January 1, 1950 to December 31, 1951, and for attorney's fees incident to a hearing on that order; the other directing plaintiff to show cause why he should not render an accounting 'to determine the community property, if any, attributable to the personal character, energy, ability and capacity of Mr. Berry, where he has contributed his personal services to the operation of the business' for the period from January 1, 1950 to the entry of the final decree, which had not then been entered, and for attorney's fees and costs incident to that order. On July 7, 1954 plaintiff filed a notice of motion to enter a final decree nunc pro tunc as of January 9, 1952, which date was just one year after entry of the interlocutory decree. The ground of the motion was that the interlocutory decree was entered January 8, 1951, the all the provisions of the decree had been executed save one, and that a hearing to enforce that provision was pending.

Prior to the hearing of the orders to show cause plaintiff paid defendant the $660. The orders to show cause and the motion were heard together commencing on July 20, 1954. The minutes of July 20, 1954 say, 'On the courts own motion the matter of the payment of $660.00 as related to the contempt action is dismissed.' Plaintiff withdrew his motion for the entry of a final decree nunc pro tunc as of January 9, 1952 and moved that it be entered as of July 7, 1953, the date the remittitur on the appeal from the interlocutory decree was filed in the superior court.

On July 21, 1954 the court, by minute order, granted plaintiff's motion to enter the final decree nunc pro tunc as of July 7, 1953, and ordered 'that an accounting be taken to determine 1/2 the net earnings of the plaintiff for personal services from January 1, 1950 till December 31, 1951, and the gains attributable to the energy, ability and capacity of Mr. Berry from the operation of the business from January 8, 1951 to July 7, 1953 to determine the community property, if any.' On July 22, 1954, by minute order, the court granted defendant's motion for an audit of plaintiff's books from January 1, 1950 until July 7, 1953, appointed an auditor 'to make the accounting,' ordered plaintiff to pay the auditor $1,875, and ordered plaintiff to pay defendant's attorney $1,000 for his services in the proceeding. On July 28, 1954 the final decree was entered as previously ordered. It assigns the property of the parties in accord with the interlocutory decree and contains this provision:

'It is further ordered and adjudged that pursuant to paragraph VIII of said interlocutory judgment, plaintiff pay to defendant one-half of plaintiff's net earnings, if any, from his personal services from January 1, 1950 to December 31, 1951, and it is further ordered that an accounting be had to determine the amount due, if any, under this provision of this judgment.'

No mention is made in the final decree of that part of the minute order of July 21 requiring plaintiff to account for gains attributable to his energy, ability, and capacity from the operation of his business for the period from January 8, 1951, the date of entry of the interlocutory decree, to July 7, 1953, the retroactive date of entry of the final decree, nor is mention made of the order of July 22 granting defendant's motion for an audit and appointing an auditor.

Appeal of Defendant

Defendant's claim is that it was error to enter the final decree nunc pro tunc in the absence of a showing of mistake, negligence, or inadvertence; that the final decree should have been entered at the time of the determination of the accounting for determination of community property, if any, accumulated after the interlocutory decree. Plaintiff replies that the court properly entered the final decree nunc pro tunc as of the date the remittitur was filed in the superior court, namely, July 7, 1953, and that the period of accounting should have been confined to the period set out in the interlocutory and final decrees, namely, from January 1, 1950 to December 31, 1951. It is not contended the final decree was entered pursuant to the inherent power of a court to antedate a judgment under certain circumstances. See Mather v. Mather, 22 Cal.2d 713, 719, 140 P.2d 808; Phillips v. Phillips, 41 Cal.2d 869, 875, 264 P.2d 926; Corbett v. Corbett, 113 Cal.App. 595, 600, 298 P. 819.

Civil Code, section 132, provides:

'When one year has expired after the entry of such interlocutory judgment, the court on motion of either party, or upon its own motion, may enter the final judgment granting the divorce * * * and such other and further relief as may be necessary to complete disposition of the action, but if any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed.'

Civil Code, section 133, provides:

'Whenever either of the parties in a divorce action is, under the law, entitled to a final judgment, but by mistake, negligence or inadvertence the same has not been signed, filed and entered, if no appeal has been taken from the interlocutory judgment * * * the court, on the motion of either party thereto or upon its own motion, may cause a final judgment to be signed, dated, filed and entered therein granting the divorce as of the date when the same could have been given or made by the court if applied for.'

Nolte v. Nolte, 29 Cal.App. 126, 154 P. 873, and Harris v. Superior Court, 10 Cal.App.2d 586, 52 P.2d 605, held the court had no power to enter an interlocutory decree nunc pro tunc as of a prior date. ¹ In Corbett v. Corbett, 113 Cal.App. 595, 298 P. 819, decided prior to the enactment of section 133 in 1935, the interlocutory decree was entered June 29, 1926. There was no appeal. The final decree was rendered February 6, 1928. It directed that it be entered nunc pro tunc as of July 2, 1927. It was held the trial court had no authority to make the nunc pro tunc order and that it was void. A marriage of one of the spouses between entry of the interlocutory decree and actual entry of the final decree was held void. It would appear that section 133 was enacted to avoid recurrence of the result in the Corbett case. In re Estate of Hughes, 80 Cal.App.2d 550, 553, 182 P.2d 253; Macedo v. Macedo, 29 Cal.App.2d 387, 390, 84 P.2d 552.

Speaking of section 133, the court, in Macedo v. Macedo, supra, 29 Cal.App.2d 387, at page 391, 84 P.2d 552, at page 554, said:

'The act is both curative and remedial, and the retroactive operation of such statute should be given effect unless it disturbs some vested right or impairs the obligation of some contract.'

When an interlocutory decree of divorce becomes final it is res judicata on all questions determined thereby including, generally, the rights of the parties in community property then existing. Dupont v. Dupont, 4 Cal.2d 227, 228, 48 P.2d 677; Leupe v. Leupe, 21 Cal.2d 145, 148, 130 P.2d 697. An interlocutory decree does not terminate the marriage relation. The interest of the wife in community property during continuance of the marriage relation is a present, existing interest. Civ.Code, § 161a. It is a vested interest. Cooke v. Cooke, 65 Cal.App.2d 260, 265-266, 150 P.2d 514; Wissner v. Wissner, 89 Cal.App.2d 759, 764, 201 P.2d 837; Horton v. Horton, 115 Cal.App.2d 360, 363-364, 252 P.2d 397; In re Estate of Kelley, 122 Cal.App.2d 42, 264 P.2d 210. Hence property acquired by one of the spouses in the interim between the interlocutory and final decrees may be community property when it is not acquired...