Headley v. Headley, 53633
Decision Date | 12 November 1969 |
Docket Number | No. 53633,53633 |
Citation | 172 N.W.2d 104 |
Parties | Orville A. HEADLEY, Appellee, v. Iris Imogene HEADLEY, Appellant. |
Court | Iowa Supreme Court |
Life, Davis & Life, by Patrick J. Life, Oskaloosa, and Kenneth J. Richardson, Ottumwa, all for appellant.
Johnson, Bauerle & Hester, Ottumwa, for appellee.
This is an appeal from a denial of an application for entry nunc pro tunc to correct the alimony provisions in a divorce decree. We reverse and remand, with instructions.
The facts giving rise to the problem may be briefly stated.
On July 27, 1967, plaintiff, Orville A. Headley, filed petition in Wapello District Court praying for decree of divorce from his wife, defendant Iris Imogene Headley.
Defendant wife retained counsel who appeared for her and filed perfunctory answer. Counsel for plaintiff and defendant respectively conferred several times. The children of the parties were grown and there were no custody problems. There is nothing in the record to indicate that defendant wife was adverse to being divorced if provision was made for property settlement and alimony. Defendant's counsel, Mr. Swartz, is now dead and we do not have his version of what happened.
At the hearing for a nunc pro tunc order (the matter now before us) counsel for plaintiff testified. We quote excerpts therefrom:
* * *
* * *'
Plaintiff husband testified that he read the proposed decree, 'every word', and found it satisfactory.
Defendant wife testified that she knew what the terms of the decree were to be. She was to receive $60 per week alimony until she remarried or died. She said she did not have an opportunity to read the decree before it was signed.
On November 9, 1967 at the hearing on plaintiff's petition for divorce defendant neither cross-examined nor offered testimony on her own behalf. The court, Judge Pettit presiding, granted plaintiff a divorce and signed the decree as prepared by plaintiff's counsel. There is no record before us as to what was said at the time.
In two places in the decree words appear that are now claimed to be 'an evident mistake.' If there was a mistake it is one that because of dictation habits is easily made and as easily overlooked. If the words were used intentionally the result is so unusual as to be startling.
There is no claim that the exact wording was ever specifically called to the attention of Judge Pettit.
One paragraph in providing for division of real estate in the decree says:
'It is further hereby ordered, adjudged and decreed by the court that the Defendant, Iris Imogene Headley, is the sole and absolute owner in fee to the exclusion of all rights or interests of the Defendant, Orville A. Headley, therein of the following described real estate, to-wit, situated in Ottumwa, Wapello County, Iowa: * * * (description of real estate)' Emphasis added.
Later in fixing alimony the decree says:
(Emphasis added)
On December 19, 1967 plaintiff asked the court for permission to remarry. Permission was granted. Plaintiff remarried on December 24, 1967, less than 7 weeks after his divorce.
On November 17, 1967 plaintiff wrote defendant asking defendant to accept $30.00 per week alimony instead of $60.
Defendant did not accept but plaintiff made weekly payments of $30 even after his remarriage. Payments continued until defendant started proceedings to collect $60 per week. Plaintiff then quit paying.
Plaintiff testified:
On July 3, 1968 application was filed and on July 31, 1968 hearing before Judge McGiverin was had on defendant's application for order nunc pro tunc. This was 8 months after the divorce was signed.
There is no claim that any agreement or understanding of the parties was binding on the court.
Judge McGiverin, before whom this nunc pro tunc application was tried, was placed in an almost impossible position of having to decide an important matter without benefit of the only evidence that under the circumstances in this case would be material.
Section 622.12, Code of Iowa, provides:
In State v. Harbour, 240 Iowa 705, 710, 37 N.W.2d 290, 293 a nunc pro tunc proceeding, we said after quoting the statute:
'And it has been the general practice in this jurisdiction that the judge who made the order hear and determine applications to correct it. (Citations) * * *
We then quoted from 126 A.L.R. 978, as follows:
'Although an error in a judgment, order, or decree was originally made by an attorney when preparing the same for the signature of the judge or clerk, it may none the less be a 'clerical' error.'
Section 604.39 as enacted by the 62nd General Assembly relates to delayed signing of the complete record.
There is nothing before us to show whether or when the complete record was signed but the trial court apparently assumed or heard evidence that it had been done and more than 60 days prior to the nunc pro tunc proceedings.
Section 604.41, Code of Iowa, as enacted by chapter 400, section 140 of the Acts of the 62nd General Assembly is as follows:
'The record of any court proceedings is under the control of the court and may be amended or any entry therein expunged before is has been signed by the judge or within sixty days thereafter.'
The sixty-day provision replaced the language 'at any time during the term at which it is made' in the antecedent statute.
Section 604.43, Code of Iowa, in the words enacted by chapter 400, section 141, 62nd General Assembly, is as follows:
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