DuPonte v. DuPonte
| Decision Date | 31 August 1971 |
| Docket Number | No. 5076,5076 |
| Citation | 488 P.2d 537,53 Haw. 123 |
| Parties | Harold L. DuPONTE, Plaintiff-Appellant, v. Dorothy W. DuPONTE, Defendant-Appellee. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. It is a rule of common law that a final judgment can only be altered or amended during the term at which it was rendered.
2. A correction of the record of a judgment, and a nunc pro tunc entry thereof, may not be made to enlarge the judgment as originally rendered or to show what the court might or should have decided, as distinguished from what it actually did decide.
3. The purpose of an order nunc pro tunc is to make the record speak the truth.
4. The function of an entry nunc pro tunc is the correction of judicial records insofar as they fail to record, or improperly record, a judgment rendered by the court, as distinguished from the correction of an error in the judgment itself, or in the failure to render the judgment.
5. Where a decree of divorce states that the property settlement agreement entered into by the parties is approved pursuant to the wife's statutory power to contract with her husband for periodic payments in contemplation of divorce but does not state that the property settlement agreement is incorporated by reference into the decree of divorce, a subsequent attempt by the wife to show by means of an affidavit of her former attorney and language contained in the property settlement agreement that it was the intent of the parties at the time of the divorce to have the agreement incorporated by reference into the decree of divorce is not a proper basis for an amendment nunc pro tunc of the decree of divorce.
Frank D. Padgett, Honolulu (Padgett, Greeley, Marunoto & Akinaka, Honolulu, of counsel), for plaintiff-appellant.
A. William Barlow, Honolulu, for defendant-appellee.
Before RICHARDSON, C. J., ABE, LEVINSON, and KOBAYASHI, JJ., and Circuit Judge M. DOI in place of MARUMOTO, J., disqualified.
By this appeal, Harold L. DuPonte, plaintiff below, seeks reversal of an order by the Family Court of the Second Circuit granting defendant Dorothy W. DuPonte's Motion to Amend Decree of Divorce Nunc Pro Tunc to incorporate by reference a Property Settlement Agreement entered into by the parties in contemplation of divorce. The primary question raised is whether the Family Court properly granted the motion.
In this opinion the parties are referred to as the husband and the wife.
The dispute in this case focuses upon the interpretation of the following clause contained in the original Decree of Divorce entered on September 4, 1963:
It is Further Ordered, that the Property Settlement Agreement, dated August 27, 1963, by and between the parties, a copy of which was received in evidence at the hearing on the libel had herein, be and the same is hereby approved pursuant to Section 325-2, R.L.H.1955. 1
The wife maintains that this language is a clear indication that the parties intended the Property Settlement Agreement to be incorporated by reference into the Divorce Decree despite the absence of the more specific language 'to incorporate by reference' normally found in divorce decrees. Furthermore, she contends, such an interpretation is particularly evident in view of the fact that the Property Settlement Agreement itself states that '* * * this agreement shall be presented to the Court with the request that it be incorporated into and form a part of any decree of divorce that may be entered dissolving the marriage of the parties.' In support of her Motion to Amend Decree of Divorce Nunc Pro Tunc the court received in evidence, over the objection of the husband's counsel, the affidavit of the wife's attorney at the time of the initial divorce proceedings which, briefly summarized, purported to represent that it was the intention of counsel to have the Property Settlement Agreement incorporated by reference into the Decree of Divorce. Based upon these arguments the Family Court granted the Motion to Amend Decree of Divorce Nunc Pro Tunc by entering as part of the order:
Ordered, that the Property Settlement Agreement entered into between the parties on August 27, 1963 and approved by the Court in the Decree of Divorce filed September 4, 1963, be incorporated in the Decree of Divorce and made a part thereof by reference thereto effective as of September 4, 1963. * * *
The husband has appealed from this order by alleging as error (1) the granting of the Motion to Amend Decree of Divorce Nunc Pro Tunc; (2) the receipt into evidence of the affidavit of the wife's former attorney; and (3) the order nunc pro tunc requiring the husband to designate the children of his marriage with Helen DuPonte as beneficiaries of his Hawaii State Employees Petirement System benefits.
The difficulty with this appeal is that although the Order of the Family Court to incorporate the Property Settlement Agreement by reference into the Decree of Divorce was couched in terms of an order nunc pro tunc, it was in effect a retroactive amendment of the 1963 Decree of Divorce. Regardless, however, of which power the court based its order upon, its power to enter judgments nunc pro tunc or its power to amend judgments, we think the court abused its discretionary powers and proceeded in a manner contrary to rules of law.
The distinction between a court's nunc pro tunc and amending powers is significant and determinative of the issues in this case. Clearly, once a valid judgment is entered, the only means by which a circuit court may thereafter alter or amend a judgment is by appropriate motion under Rule 59(e) of the Hawaii Rules of Civil Procedure, which requires that the motion shall be served not later than 10 days after entry of the judgment. However, Rule 81(a) exempts from coverage the annulment, divorce and separation proceedings under Chapter 296, R.L.H.1945 (). Therefore, the power of the Family Court to alter or amend its judgment and decrees continues to be governed by the common-law power of courts.
The general common-law rule, stated in its simplest form, is that a final judgment can only be altered or amended during the term at which it was rendered. Goo v. Hee Fat, 34 Haw. 123, rehearing denied, 34 Haw. 149 (1937); Rhoades v. Maciel, 25 Haw. 579 (1920); Hind v. Wilder's Steamship Co., 14 Haw. 215 (1902). Although the cases cited recognize exceptions to this general rule, the case before us does not qualify under any of them. Clearly, then, the Family Court did not have jurisdiction to enter an order in September of 1970 amending the 1963 Decree of Divorce to incorporate by reference the Property Settlement Agreement.
On the other hand, an order, decree or judgment nunc pro tunc is a distinctly different power of the court than the power to amend a judgment. The purpose or function of an order nunc pro tunc is to make the record speak the truth. It is an inherent power of the court but is limited to those acts which record 'now for then' an order actually made or a judgment actually rendered which through some oversight or inadvertence was never entered upon the records of the court by the clerk or which was incorrectly entered. Makainai v. Lalakea, 24 Haw. 518 (1918); Black v. Industrial Commission, 83 Ariz. 121, 317 P.2d 553 (1957); Merrick v. Merrick, 266 N.Y. 120, 194 N.E. 55 (1934); see generally, I Freeman, Judgments §§ 121-22 (5th ed. 1925). Stated in another manner, '(t)he function of an entry nunc pron tunc is the correction of judicial records insofar as they fail to record, or improperly record, a judgment rendered by the court, as distinguished from the correction of an error in the judgment itself, or in the failure to render the judgment.' Caprita v. Caprita, 145 Ohio St. 5, 7, 60 N.E.2d 483, 484 (1945). The cases have consistently emphasized that the power of courts to enter judgments nunc pro tunc is limited to giving its judgments proper retroactive effect in those cases where through no fault of the complaining party a final judgment or decree entitled to be entered was not entered or was incorrectly entered. It is not a power that includes the authority to subsequently amend or alter a valid and final judgment properly entered in the record.
The wife's argument that it was the intention of the parties as reflected by the Property Settlement Agreement and supported by the affidavit of her former attorney to have the Property Settlement Agreement incorporated into the Decree by reference is without merit. What was or was not the intent of the parties is not...
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