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

Page 104

172 N.W.2d 104

Orville A. HEADLEY, Appellee, v. Iris Imogene HEADLEY, Appellant.

No. 53633.

Supreme Court of Iowa.

Nov. 12, 1969.

Life, Davis & Life, by Patrick J. Life, Oskaloosa, and Kenneth J. Richardson, Ottumwa, all for appellant.

Johnson, Bauerle & Hester, Ottumwa, for appellee.

SNELL, Justice.

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:

'Mr. Swartz and I had several discussions, the last of which was on November 8th, 1967, according to my notes which I prepared in his office on a yellow piece of paper. In the settlement he gets the divorce, $60.00 per week alimony continues until remarriage or death. This amount subject to modification by the court at once when he no longer is employed as business representative of the Teamster's Union or its equivalent position. My discussion with Mr. Swartz related to the payment of $60.00 per week to the defendant until such time as she should remarry or should die. However, Mr. Headley was not present at the time of the meeting on November 8th, 1967 when I made these notes, and I went on in the notes and specified (division of property, payment of costs and attorney fees). * * * I went back to my office and as I stated before it is my recollection I dictated this decree of divorce into the stenorette, and I either mailed or had delivered to my client, Orville Headley, a zerox copy of the decree as it appears filed in this case, with the exception, of course, of the Judge's signature and Mr. Swartz's signature, and the date, and Mr. Headley came to my office either the day of the 8th or morning of the 9th, and stated he had read the decree as I had prepared it, and it was satisfactory with him. We made arangements to be present here in the courtroom as I think 11:30, or something like that, the morning of the 9th, and Mr. Headley, who was in the courtroom that day at that time read as I recall this exact original which is now a part of the court file, and we proved up on the divorce with Mr. Swartz present in the courtroom. I had no further discussion with Mr. Swartz relating to the terms and conditions of the decree, except he approved the same as to form here in the courtroom as I recall it. * * *

'Q. * * * From what you have said, Mr. Johnson, as to your version of the facts surrounding this divorce you state that there was an agreement between defendant's counsel and yourself whereby it was agreed that the alimony would continue until she shall remarry or die, is that right? A. That is what Mr. Swartz and I discussed.

'Q. And that was what was decided was it not? A. As between Mr. Swartz and I when I left the meeting of November 8th, 1967, I think the substance of the conversation was as to remarriage and $60.00 per week alimony to continue until remarriage or death of the defendant.

'Q. That is the best of your recollection. Now in this matter, Mr. Johnson, you didn't actually realize the wording we have been talking about until you received the ruling on the defendant's application for contempt citation? A. I did not, but Mr. Headley tells me he did, and that he approved of the terms of the decree based upon what he read. * * *'

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:

'It is further hereby ordered, adjudged and decreed that alimony is hereby awarded to the defendant, Iris Imogene Headley, in the amount of $60.00 per week, commencing with the week beginning on November 13th, 1967 and payable on Friday of each week into the office of the Wapello County, Iowa, clerk of court. It is ordered that this alimony shall be paid by the plaintiff to the defendant until such time as the Plaintiff shall remarry or shall die, whichever shall first occur.' (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:

'I knew $30.00 per week wasn't what I agreed to until I remarried. I continued on paying 30, I might still be paying it if she left me alone, but she garnisheed the checking account, my wife's CD February 24th, and I stopped my payments.'

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.

I. Except for the decree itself there is nothing before us to show the judgment or intent of the trial judge.

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:

'Judge as witness. The judge of the court is a competent witness for either party, and may be sworn upon the trial. In such case it is in his discretion to order the trial to be postponed or suspended, and to take place before another judge.'

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) 'The proceedings adopted for such correction are not strictly adversary in their character. They are intended as a mere aid to the memory of the trial judge to make the record conform to the truth * * *.' * * *

'The correction was sought to make the record entry conform to the actual pronouncement of the court, not to evidence a change in the decision itself. Such proceedings are clearly within the inherent power of the court and the existing statutes are merely cumulative. (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.'

II. Section 604.38, Code of Iowa, provides:

'Preparation and signing of record. The clerk shall from time to time make a record of all proceedings of the court, which, when correct, shall be signed by the judge.'

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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