Brandt v. Brandt
| Decision Date | 31 December 1958 |
| Citation | 215 Or. 423,333 P.2d 887 |
| Parties | Ella Mae BRANDT, Respondent, v. Edward V. BRANDT, Appellant (two cases). Ella Mae BRANDT, Respondent, Cross-Appellant, v. Edward V. BRANDT, Appellant. |
| Court | Oregon Supreme Court |
J. Robert Patterson, Milwaukie, argued the cause and filed briefs for appellant.
James O. Goodwin, Oregon City, argued the cause for respondent and cross-appellant. With him on the brief was Glenn R. Jack, Oregon City.
Before PERRY, C. J., and ROSSMAN, WARNER and McALLISTER, JJ.
This is a consolidated appeal taken by the defendant, Edward V. Brandt, from the final action which the circuit court took in the following three cases: (1) a suit for divorce and property distribution; (2) a suit between the same parties which sought partition of the real property which the couple accumulated in the period in which they assumed they were lawfully married; (3) a replevin action between the same parties concerning some personal property possessed by the defendant and acquired in the period of the putative marriage. In each case Ella Mae Brandt was the plaintiff and the aforementioned Edward V. Brandt was the defendant.
The plaintiff and the defendant underwent a marriage ceremony in 1935 in the State of Washington. The marriage was void because the plaintiff had a husband living at that time from whom she was not divorced.
The proceedings which have culminated in this appeal were started August 31, 1950, when the plaintiff filed, in Clackamas county, a suit for divorce asking for an award of specific property in Clackamas county in addition to other relief. In his answer, the defendant alleged that the plaintiff still had a husband living and this was, in turn, admitted by the reply. As a result, the court entered a decree February 19, 1951, which (1) granted an annulment to the defendant; (2) gave the plaintiff all of the real and personal property located in Clackamas county, based upon a description contained in the complaint; and (3) awarded the defendant all of the rest of the property including real property situated in Multnomah county, Oregon, and Skamania county, Washington, together with some personal property.
Prior to rendering the decree which we just mentioned, the trial judge stated in an oral opinion that he felt that the plaintiff sincerely believed before she married the defendant that she had been divorced from her first husband, and that the parties had entered into the marriage in good faith. The trial judge also said that if the plaintiff had been entitled to a divorce he would have given her all of the property, but that he could not since the defendant was entitled to an annulment. He then declared that he would award the plaintiff 'the Clackamas County property' and the personal property. His reference apparently was to the description of the Clackamas county property employed in the complaint which described it as 'Home property near Clackamas in Clackamas County, Oregon, owned as tenants by the entirety, consisting of a house and outbuildings and an adjacent piece of property consisting of one house which is rented' followed by a reference to the Deed Book of Clackamas County. The decree rendered on February 19, 1951, however, did not refer to this property as the 'home property,' but merely repeated boundaries contained in the complaint. The description which was employed in that manner did not include what may be termed the 'home property' but only four acres of pastureland adjacent to the tract on which the buildings were located.
According to affidavits filed later, it appeared that the description contained in the complaint and later incorporated in the decree was taken from deeds which the plaintiff had found in her home and handed to her counsel. In truth, they were not the only deeds of the Clackamas property, but the plaintiff and her counsel assumed that they were and, therefore, since the plaintiff had little money, her attorney did not check the records to see if they included all of the home property. The plaintiff's attorney prepared the decree and submitted it to the defendant's attorney who approved it, whereupon it was signed by the judge. The inadequacy of the description was called to the attention of the plaintiff's attorney April 20, 1951, after the term of court had ended, by a letter from the defendant's attorney, stating that no appeal would be taken and that the defendant was willing to give the plaintiff possession of all of the property mentioned in the decree and all of the personal property located thereon. The letter pointed out that the property on which the houses were located was not mentioned specifically in the complaint or in the decree. It further stated that the attorney for the defendant believed that the property on which the houses were located was held by the parties as tenants in common. The letter was written just after the time for appeal had run.
As a result of this letter, the plaintiff filed a motion May 12, 1951, asking for an order entering a nunc pro tunc decree to correct the original decree. The motion was based on (1) affidavits which stated how the mistake occurred, and (2) the oral decision of the court to which we have referred. This motion was supplemented November 3, 1951, by one for leave to file an amended complaint and was accompanied with the proposed amended complaint. The only change which it was sought to make in the pleading was to incorporate in the complaint a complete description of the home property in Clackamas county, including the land on which the buildings were located. The two motions were denied November 7, 1951, and the grounds for the denial were given in a memorandum opinion, dated November 2, 1951. The memorandum opinion, after describing the proceedings that had taken place in the case, pointed out that the term of court ended on April 2, 1951; it then went on to say:
'The Court is not unmindful that at the time the oral decision was rendered the Court was under the impression that the Court was awarding to the plaintiff the 'home property' near Clackamas in Clackamas County, Oregon, owned as tenants by the entirety and consisting of a house and outbuildings and an adjacent piece of property consisting of one house which is rented. It was the intention of the Court to award the plaintiff that property. The Court intended that the plaintiff should have the Clackamas 'home property' as a home for herself and the 10-year-old son whose custody was awarded the plaintiff. The Court was under exactly the same impression and understanding when the decree was signed. At no time was there any testimony regarding any other property in Clackamas County or any intimation given the Court that the parties owned any other property in Clackamas County.
'The Court also remembers that counsel for both parties were in chambers when a discussion was held relative to the possibility of making a property settlement between the parties, and in that discussion the value of the Clackamas County property was discussed along with the value of all of the other properties of the parties, and the Court was under the impression at that time that the only property situated in Clackamas County was the 'home property' as mentioned in the Complaint.'
Although this was a recognition that the decree was not as the court had intended, the judge felt that since the term had ended he did not have power to correct the decree.
Following the denial of her motions to amend the decree, the plaintiff, on November 21, 1951, filed a petition in coram nobis, asking that the case be opened and the erroneous description changed. This was met by an answer of the defendant. January 11, 1952, the court issued a memorandum opinion in which it held that the petition for coram nobis could not be granted. It declared, however, that the court was in error when it denied the motion to amend the original complaint. In the course of this opinion, the court, speaking of the original decision, stated:
'By this decision the Court meant just what it said and that the plaintiff was to have all of the Clackamas County property owned by the plaintiff and defendant as tenants by the entirety. The Court, by its decision, awarded to the plaintiff the 'Home property near Clackamas in Clackamas County, Oregon, owned as tenants by the entirety, consisting of a house and outbuildings and an adjacent piece of property consisting of one house which is rented,' as well as the vacant, unimproved lots or parcels of property that adjoined the 'home property.'
'All the testimony at the trial relating to the property or the value of the property was regarding the 'home property' and not the unimproved parcels of property owned by the parties which adjoined the 'home property.'
'The Court did intend to and did award to the plaintiff all the property that the plaintiff and defendant owned near Clackamas in Clackamas County, Oregon, so that she could have a home for herself and the child and a home that they could live in and would produce for the plaintiff some income and give her some security.
'In the opinion of the Court both the plaintiff and the defendant, as well as their respective attorneys, understood that was just what the Court intended to do, and at no time did the Court have any intention of ever depriving the plaintiff of the 'home property near Clackamas in Clackamas County, Oregon, owned as tenants by the entirety, consisting of a house and outbuildings and an adjacent piece of property consisting of one house which is rented,' which even the defendant testifies was worth from twenty to twenty-five thousand dollars, and award to the plaintiff unimproved property worth only about one-twentieth of the property that the Court intended the plaintiff should be awarded.
'The houses, buildings and other improvements on the 'home property' of the parties are all located on...
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