Duff v. Duff

• Decision Date: 08 December 1967
• Citation: 64 Cal.Rptr. 604,256 Cal.App.2d 781
• Court: California Court of Appeals Court of Appeals
• Parties: Hazel B. DUFF, Plaintiff and Respondent, v. John E. DUFF, Defendant and Appellant. Civ. 8377.

Page 604

64 Cal.Rptr. 604

256 Cal.App.2d 781

Hazel B. DUFF, Plaintiff and Respondent, v. John E. DUFF, Defendant and Appellant.

Civ. 8377.

Court of Appeal, Fourth District, Division 2, California.

Dec. 8, 1967.

[256 Cal.App.2d 782] Harwood, Heffernan, Soden & Corfman, by, Robert L. Corfman, Newport Beach, for defendant and appellant.

Gilbert & Malmuth, Los Angeles, by, Joseph I. Wedeen, Hollywood, for plaintiff and respondent.

OPINION

McCABE, Presiding Justice.

Appeal from judgment in favor of the plaintiff in the amount of $14,070, together with interest at the legal rate from November 26, 1946 to January 26, 1966, aggregating a total judgment of $32,948, entered in the Superior Court in and for the County of Orange on April 8, 1966.

Plaintiff and defendant herein, formerly husband and wife, were married in New York City in 1920. Their marriage endured until December 29, 1941, when Mrs. Duff instituted an action to terminate this relationship in White Plains, New York. On January 12, 1942, the order to show cause came on regularly for hearing, and the defendant, John Duff, personally appearing in that action in Propria persona, was ordered to pay the plaintiff $70.00 per week 'for her maintenance and support' commencing on that date. Some payments were made during the period 1942 to 1944. In 1943 the defendant entered the armed forces and the plaintiff was unable to locate him until 1946, when she located him in California.

The 1946 action to enforce the 1942 order of the New York court was filed in Los Angeles County on June 5, 1946. An order to show cause issued out of that proceeding, which was heard on August 15, 1946. The court granted no relief to Mrs. Duff. Defendant, Mr. Duff, filed his answer to the 1946 proceeding on September 5, 1946 by which the issues were joined.

Preceding these events, on May 24, 1946, Mr. Duff prepared and signed the following: 'I, John E. Duff, herewith agree to pay Hazel B. Duff the sum of Fifteen Dollars a week from the above date until such time as she remarries.'

On July 31, 1946, in Los Angeles County, Mr. Duff filed an action for divorce. Mrs. Duff was served and defaulted. The interlocutory decree was entered November 25, 1946, and the final decree entered on December 12, 1947.

Plaintiff Hazel Duff's present action to enforce the New York decree was filed on October 23, 1964, in which she sought to recover a judgment for the allegedly due weekly payments of $70 from the date of the 1942 New York order which totalled $82,810. Defendant John Duff appeared by demurrer and later by answer. By his answer, defendant denied the allegations of the complaint and set forth three separate affirmative defenses, (1) that plaintiff's complaint was barred by Code of Civil Procedure, section 337.5(3); (2) laches; (3) all matters between the parties were adjudicated in the Los Angeles County divorce action of 1946.

In December 1965, nearly eight months after the defendant had filed his answer, plaintiff by stipulation amended her complaint by alleging the Los Angeles County decree, entered December 12, 1947, was null and void because she had not been personally served, therefore, the court did not have Personam jurisdiction over her. This position was abandoned by plaintiff and it is now conceded by her that the granting of the final decree in Los Angeles County on December 12, 1947, terminated the support granted by the New York court, thus, we are here only concerned with the monies due as support for the period from 1942 to 1946.

The trial was held on December 17, 1965, after which both parties submitted points and authorities. In his points and authorities, defendant again insisted the statute of limitations was applicable and defendant was not estopped to assert it.

During the trial evidence was adduced that defendant was a resident of California from 1945 or 1946 to 1964, but he had left the state on several occasions and for varied periods of time. Whether introduced by plaintiff or defendant, the evidence is helpful to the trial court in determining the application or non-application of the statute of limitations.

From the record before us it is not certain whether time to file points and authorities had expired. Novertheless the trial court on December 29 entered a minute order finding the 1946 divorce decree was valid and plaintiff was entitled to $70 per week from January 12, 1942 to November 25, 1946. On the following day the minute order was vacated. Later, and on February 8, 1966, the minute order of December 29 was reinstated. Findings of fact, conclusions of law and judgment were served on defendant's counsel on February 9, 1966, signed by the trial judge on February 28 and filed March 2, 1966. It was found and concluded that plaintiff had received a New York support decree in 1942 for $70 per week, 'on the 25th day of November, 1946, defendant obtained a Final decree of divorce from the plaintiff' (emphasis added) in Los Angeles County and the decree terminated the New York support order. The trial court awarded plaintiff $14,070 together with interest at 7% From 1946 to 1966 for a total interest amount of $18,878. In accordance with the findings of fact and conclusions of law, a judgment was signed on February 28, 1966, filed on March 2, 1966, and entered on March 3. 1966. On this latter date the county clerk mailed notice of entry of judgment to the parties.

On the following day, March 4, 1966, the trial judge ordered the findings of fact conclusions of law and judgment vacated to allow defendant to file objections. Defendant was given 10 days to file such objections, and plaintiff was given 10 days to answer. On March 9, defendant served his objections, complaining there were no findings on his affirmative defense of the statute of limitations and laches. Defendant requested special findings to this effect.

On April 6, 1966, the trial judge adopted the findings of fact, conclusions of law of the plaintiff, rejected defendant's objections and ordered the findings of fact, conclusions of law and judgment reinstated as originally entered. Finally on April 14, 1966, the court on its own motion ordered the judgment to be entered on April 8, 1966, instead of March 3, 1966, as it had ordered on April 6.

This appeal is from the judgment and from the whole thereof.

Upon entry of a judgment, in the absence of clerical error in the rendition or entry of that judgment, the trial court may not summarily amend judgment, no matter how erroneous it may be, on its own motion. (Code of Civil Procedure, sec. 663; Bowman v. Bowman, 29 Cal.2d 808, 814, 178 P.2d 751, 170 A.L.R. 246; Eisenberg v. Superior Court, 193 Cal. 575, 759, 226 P. 617; Chase v. Superior Court, 210 Cal.App.2d 872, 875, 27 Cal.Rptr. 383.) Absent inadvertence, clerical error or extrinsic fraud in the entry of a judgment, an erroneous decision may only be rectified by a motion to vacate the judgment under Section 663 of the Code of Civil Procedure, or by motion for a new trial. (Greene v. Superior Court, 55 Cal.2d 403, 405--406, 10 Cal.Rptr. 817, 359 P.2d 249; Estate of Harris, 200 Cal.App.2d 578, 590--592, 19 Cal.Rptr. 510; Hunydee v. Superior Court, 198 Cal.App.2d 430, 432, 17 Cal.Rptr. 856.)

Code of Civil Procedure, sec. 634, requires that the court 'shall not sign any findings therein prior to the...