Chandler v. Denton, s. 62575

Citation747 P.2d 938
Decision Date03 November 1987
Docket NumberNos. 62575,62995,s. 62575
PartiesDavid R. CHANDLER, Appellant, v. Mary Frances DENTON, Richard L. Denton, Edith P. Denton, Appellees.
CourtSupreme Court of Oklahoma

Certiorari to the Court of Appeals, Oklahoma City Division.

In a collateral attack on a Decree of Distribution to determine whether disclaimer filed in probate court was ineffective because not timely filed, the trial court found the Decree of Distribution void on its face because of the untimely disclaimer. The probate court by order nunc pro tunc corrected its previous Decree of Distribution. Court of Appeals affirmed both lower courts. Certiorari is granted.

COURT OF APPEALS' OPINION IS VACATED, ORDER NUNC PRO TUNC OF THE PROBATE COURT IS VACATED, AND TRIAL COURT'S JUDGMENT ON THE PLEADINGS IS REVERSED WITH INSTRUCTIONS THAT THE CAUSE OF ACTION ALLEGING A VIOLATION OF THE OKLAHOMA UNIFORM FRAUDULENT CONVEYANCE ACT BE REMANDED FOR TRIAL ON THE MERITS.

Linda G. Alexander, Niemeyer, Edmands, Noland, Alexander & Hargrave, Oklahoma City, for appellant.

Paul E. Northcutt, Northcutt, Raley, Clark & Gardner, Ponca City, for appellees.

DOOLIN, Chief Justice.

Raymond Wallace Denton died testate on January 28, 1976, leaving three heirs at law: his surviving spouse, Mary, his son, Richard, and his daughter, Mary Raye. Both of Raymond's children had reached majority by the time Raymond died. Raymond's will was admitted to probate, under the terms of which his surviving spouse, Mary, was the sole beneficiary. Seventeen months after Raymond's death, Mary disclaimed her interest in two tracts of land, one in favor of her daughter, the other in favor of her son, subject to a life estate retained by Mary in these two properties. It is this disclaimer in favor of Richard that is the subject of this consolidated appeal. On August 31, 1977, the probate court issued its Decree of Settlement of Final Account, Determination of Heirship and Distribution of Estate (Decree of Distribution), in which the court awarded all of Raymond's property to Mary, except for the two tracts Mary disclaimed. These two properties were distributed in accordance with the disclaimer to Richard and Mary Raye, subject to Mary's life estate. 1 The Decree of Distribution was not appealed and became final.

In her capacity as administratrix of Raymond's estate, Mary brought an action for an accounting on April 6, 1976, against David R. Chandler (Chandler), who had been Raymond's business partner. Chandler counterclaimed for assault, battery, extortion and trespass against Mary, Richard, and Richard's wife, Edith. Chandler later filed a separate lawsuit against these three parties for assault, battery, trespass, extortion, damage to property and intentional infliction of emotional distress. Mary was dismissed with prejudice as a party defendant and the jury awarded Chandler damages in the amount of $1,100,030.00 on September 23, 1982. 2 The next day, Richard quit claimed back to Mary the 80 acres distributed to him by the probate court as a result of Mary's disclaimer.

Chandler brought an action against Mary, Richard and Edith on the grounds that the transfer of the 80 acres was made contrary to the Oklahoma Uniform Fraudulent Conveyance Act, 24 O.S.1971, §§ 5, 10, 101. 3 Mary answered that Richard had declined to accept the disclaimer made in August of 1977 and that when Richard first became aware on September 1, 1982 that Mary had disclaimed without his knowledge or consent, he quit-claimed the property back to her. Chandler then sought to amend his petition to include punitive damages on the grounds that the conveyance was a crime under 21 O.S.1981, § 1671. Mary filed an amended answer and asserted for the first time that the disclaimer was void and of no effect because it was not timely filed, as a result of which Richard never owned any interest in the property and the quit-claim was not a violation of the Oklahoma Uniform Fraudulent Conveyance Act. Mary then filed a Motion for Judgment on the Pleadings.

The trial court found the disclaimer filed by Mary seventeen months after Raymond's death void because it was not filed within six months of Raymond's death as required by 84 O.S.1981, § 24, 4 and that the disposition of the property was in violation of 84 O.S.1981, § 26. Because the disclaimer was untimely filed, the Decree of Distribution was void on its face and subject to collateral attack. The trial court then ruled that because Richard had never taken title to the 80 acres in question, he could not be guilty of fraudulent conveyance and sustained the Motion for Judgment on the Pleadings. From this decision Chandler timely appealed.

On the same day that the trial court in the fraudulent conveyance case handed down its ruling, Mary returned to the probate court and filed an application for an Order Nunc Pro Tunc asserting the disclaimer was void because it was not timely filed. Chandler opposed this application. The probate court issued an Order Nunc Pro Tunc modifying its previous Decree of Distribution and awarded all of Raymond's property to Mary on the grounds that the disclaimer was not timely filed and was therefore void. From this Order Nunc Pro Tunc Chandler timely appealed. By request of all the parties, these two appeals have been consolidated into one.

The consolidated appeals were sent to the Court of Appeals, Oklahoma City Division, which, in an unpublished opinion, affirmed the probate court order nunc pro tunc and the trial court's judgment on the pleadings. We granted certiorari to review that opinion.

The dispositive question on appeal is whether the Decree of Distribution, which was not appealed and became final, is shielded from collateral attack because the probate court made a mere error of law, or whether the Decree was void on its face because the disclaimer was untimely filed thereby rendering the decree susceptible to both direct and collateral attack. We answer the first half of the question affirmatively and the second half negatively.

Before addressing the merits of this appeal, we make one observation. The purpose of an order nunc pro tunc is to allow a court to change its previous ruling to correct clerical or scrivener's errors so that the judgment or final decree reflects what was actually decided and to make the judgment or decree speak the truth. We have repeatedly held that a claim that there are errors of law in a judgment or decree cannot be raised by application for an order nunc pro tunc. The power to make corrections by order nunc pro tunc extends only to clerical errors, not to judicial errors. An order nunc pro tunc may not be used to render another and different judgment. 5 Because the probate court changed the Decree of Distribution to reflect a different judgment by use of an order nunc pro tunc, such order is outside the office of an order nunc pro tunc and is vacated.

Central to the decisions of the probate court, the trial court and the opinion of the Court of Appeals that the disclaimer was void because untimely filed, is their reading of our opinion, In the Matter of the Estate of Griffin, 599 P.2d 402 (Okl.1979). In Griffin we found that a precondition to an effective disclaimer is timely filing in accordance with 84 O.S.1981, § 24, and that the six-month, now nine-month, period for filing begins to run from the date of the spouse's death. If the disclaimer is filed after expiration of the statutory period, it is not effective. The appellant in Griffin sought to withdraw his disclaimer before the Decree of Distribution was rendered, a hearing was held in which the trial court refused to permit withdrawal of the disclaimer, and the Decree of Distribution was timely appealed. In that appeal the error of law was directly attacked before the Decree became final. Here, on the other hand, the Decree of Distribution was not appealed and became final. Mary Denton collaterally attacks the disclaimer some six and one-half years after the Decree became final. When collateral, or delayed, attacks are made on a final judgment or decree, we apply different principles from those applied in Griffin.

The judicial acts of a county, now district, court sitting in its capacity as a probate court are protected from collateral attack in the same manner and with the same force as other judgments. 6 A collateral attack on a judicial decision is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner not provided by law; that is, in some other way than by appeal, writ of error, certiorari, or motion for a new trial or timely proceedings to vacate, reopen or modify. 7 A Decree of Distribution, as any other final judgment, is conclusive in the absence of fraud, mistake or collusion as to the rights of the parties interested in the estate. Such a conclusive judgment is final as to all portions of the estate distributed under the will, unless reversed or modified on appeal, and the decree is not subject to collateral attack. 8 "A judgment of a court of competent jurisdiction may not be impeached collaterally for mere errors or irregularities committed by the court in the exercise of its jurisdiction or in the course of the proceedings, even though the error is one of law and even though the error or irregularity appears on the face of the record." 9 "[T]he power to decide includes the power to decide wrong, and an erroneous decision is as binding as one that is correct, until set aside or corrected in a manner provided by law." 10

Neither Mary nor Richard assert that the Decree of Distribution resulted from fraud or collusion. Their sole claim is the disclaimer was ineffective because it was not timely filed within the statutory period. We find that acceptance of the untimely filed disclaimer by the probate court was, at most, an error of law and, as such, the Decree of Distribution is shielded from collateral attack....

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