DeForest v. DeForest
| Decision Date | 24 January 1985 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 694 P.2d 1241,143 Ariz. 627 |
| Parties | Truman Victor DeFOREST, Petitioner-Appellant, v. Jeanne C. DeFOREST, Respondent-Appellee. 7624. |
| Court | Arizona Court of Appeals |
The primary issue on this appeal is whether the trial court erred in entering a decree of dissolution nunc pro tunc.
On February 27, 1981, Truman V. DeForest (husband) filed a petition for dissolution of his marriage with Jeanne C. DeForest (wife). A default hearing was conducted on June 4, 1982 before the Honorable Cheryl K. Hendrix. The husband and counsel for both parties were present at the hearing. The agreement of the parties with respect to a property settlement was presented to the court. Judge Hendrix' minute entry order provides:
Hearing on Default. Petitioner is present with counsel. Respondent is not present but is represented by counsel. No Court Reporter.
Truman DeForest is sworn and testifies. The Court finds that the parties have been domiciled in the State of Arizona for more than 90 days prior to filing petition. The conciliation provision of A.R.S. § 25-381.09 does not apply. The marriage of the parties is irretrievably broken.
IT IS ORDERED upon presentation of formal written Decree of Dissolution incorporating the agreement of the parties the marriage will be dissolved.
Believing that his marriage to Jeanne had been dissolved, Truman DeForest married another person on June 12, 1982.
On November 6, 1982, the court issued a minute entry noting the absence of a formal decree and placing the matter on the inactive calendar for dismissal on December 30, 1982. A stipulation for a continuance was filed and denied; an order permitting a continuance was entered on January 5, 1983; a minute entry dismissing the action, signed on November 16, 1982, was vacated on January 21, 1983. At this point neither party had presented a motion to set aside the default or a formal decree.
Trial was held on December 1st and 2nd, 1983 before the Honorable Stanley Z. Goodfarb. Judge Goodfarb entered a formal judgment dissolving the marriage as of June 4, 1982 nunc pro tunc. The judgment confirmed and enforced the terms to which the parties had stipulated at the default hearing.
The prior stipulation had included a spousal maintenance award to the wife of $585.00 a month. No spousal maintenance had been paid by the husband as of December, 1983. The judgment provided that the wife's spousal maintenance which had accrued from June of 1982 to the date of judgment was to be satisfied out of the husband's interest in the proceeds from the sale of their residence. Judge Goodfarb modified the original decree to terminate spousal maintenance as of January 6, 1984 on grounds of substantial and continuing changed circumstances.
The judgment directed that the parties' residence be sold pursuant to Rule V of the Domestic Relations Handbook, Maricopa County Superior Court, giving either party an opportunity to purchase the other's interest in the home. Each party was awarded any assets which he or she had acquired since the date of the default hearing. The husband received all interest in a written work which was begun during the marriage and was still in the draft writing stage at the time of trial. Each party was ordered to bear his or her own attorney's fees and costs.
The husband filed a timely notice of appeal from the judgment. He argues that it was error to hold him in arrears for spousal maintenance for 18 months. He contends that (1) the trial court could not enter judgment nunc pro tunc because judgment had not been rendered at the June 4, 1982 hearing and (2) the trial court improperly admitted the testimony of Judge Hendrix and certain documents into evidence.
Rule 58(a), Arizona Rules of Civil Procedure, permits entry of a judgment nunc pro tunc "in such circumstances and on such notice as justice may require...." The State Bar Committee notes following Rule 58 refer to the absence of any language in the rule specifying the circumstances under which entry of judgment nunc pro tunc is appropriate. According to the notes, such circumstances are best determined by reference to case law on that subject.
Several Arizona appellate decisions address the propriety of the entry of nunc pro tunc judgments in light of Rule 58 as amended in 1970. Two of these decisions involve the entry of a decree of dissolution nunc pro tunc.
In Allen v. Allen, 129 Ariz. 112, 628 P.2d 995 (App.1981), this court held that the trial court did not lose jurisdiction to enter a decree of dissolution nunc pro tunc where one of the parties died after the dissolution hearing but before a formal decree was presented to the court. The decision relied upon a substantial body of law which distinguishes between "rendition of judgment" and "entry" of judgment. We held that where there had been a "rendition of judgment", i.e., the act of the court in pronouncing its judgment, death of a party did not deprive the court of jurisdiction to enter a decree of dissolution nunc pro tunc to the date of that rendition. Where a decision has been rendered, judgment nunc pro tunc is appropriate to reflect what was actually done. See also Valley National Bank of Arizona v. Meneghin, 130 Ariz. 119, 123-124, 634 P.2d 570, 574-575 (1981); Feltman v. Coulter, 111 Ariz. 295, 298, 528 P.2d 821, 824 (1974).
The husband has attempted to distinguish Allen on grounds that the minute entry in Allen indicated the trial court's present intent to adjudicate the controversy as reflected in definite findings of fact and orders that were not contingent upon a future occurrence. He argues that the minute entry in the instant case orders that "upon presentation of formal written Decree of Dissolution incorporating the agreement of the parties the marriage will be dissolved." Emphasizing the language "will be", he argues that the judgment of dissolution was contingent upon the presentation of a formal order. Thus, he concludes that the court did not render a judgment on June 4, 1982.
The husband also points out that there is authority to support the contention that a judgment may be both rendered and entered nunc pro tunc. See Valley National Bank of Arizona v. Meneghin, 130 Ariz. at 123-123, 634 P.2d at 574-575. However, he contends that rendition may occur nunc pro tunc only when delay is not caused by the party seeking the nunc pro tunc entry. He argues that both parties were responsible for the delay in the instant case and cannot obtain a nunc pro tunc rendition. We note, however, that in Estate of Hash v. Henderson, 109 Ariz. 174, 507 P.2d 99, modified, 109 Ariz. 258, 508 P.2d 334 (1973), our supreme court permitted entries of 200 dissolution decrees nunc pro tunc without reference to rendition of judgment or fault for delay in presenting the formal decrees. Estate of Hash emphasizes the court's concern with the possibility of bigamous relationships if nunc pro tunc judgments were not entered. Likewise, the fact of the husband's 1982 remarriage was a substantial concern of Judge Goodfarb. However, we do not find it necessary to decide whether the decree in the instant case could have been rendered nunc pro tunc. Rather, we find that the record supports the trial court's conclusion that a judgment had been rendered at the default hearing.
We first consider the alleged contingent nature of Judge Hendrix' 1982 order. It is evident that the minute entry language is expressed in the future tense. It is also clear that Judge Hendrix ordered the parties to present a formal decree encompassing the terms of their agreement. However, the minute entry refers to an existing agreement and implies its approval. It also makes factual findings which are the jurisdictional requisites for dissolution. We are unwilling to conclude that the use of "will be" in the context of the entire minute entry creates a conditional adjudication.
In Allen, this court found that a minute entry evidenced a pronouncement of judgment. However, we acknowledged that the hearing transcript indicated that the trial court had cautioned the parties that they were not divorced until entry of judgment. This cautionary language relating to the effective date of the judgment was held to have no bearing upon whether there had been an adjudication of the controversy, i.e., a rendition of judgment. Similarly, we do not find the minute entry language in question to be conditional with respect to rendition of judgment. It is more reasonably interpreted as an expression of the condition for entry of that judgment, i.e., to condition entry of judgment upon presentation of the formal decree incorporating the parties' agreement. Judge Hendrix correctly stated that dissolution was dependent upon a final formal judgment. See Rule 58(a), Arizona Rules of Civil Procedure. See also Reid v. Reid, 20 Ariz.App. 220, 221, 511 P.2d 664, 665 (1973).
The husband concedes that Judge Hendrix made present findings of fact necessary to support dissolution of the marriage. See A.R.S. § 25-312. He further concedes reliance upon the judge's pronouncement at the hearing to conclude that he was free to remarry on June 12, 1982. Nevertheless, he argues that even if the use of "will be" did not make dissolution conditional, the terms of the property agreement were not expressly set forth in the minute entry. Therefore, he argues there was no rendition of judgment with respect to the property settlement. He argues that while dissolution of the marriage could be entered nunc pro tunc, the terms of the property agreement could not be so entered. This argument is, of course, self-serving because it would legitimize his second marriage but eliminate any obligation for spousal maintenance.
We agree that the minute entry alone does not express the terms of a property agreement....
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