Holmes v. Holmes

• Decision Date: 29 November 1949
• Docket Number: 2436 and 2435
• Citation: 211 P.2d 946,66 Wyo. 317
• Parties: ELMER HOLMES, Plaintiff and Respondent, v. EVA HOLMES, Defendant and Appellant; EVA HOLMES, Plaintiff and Appellant v. ELMER HOLMES, Defendant and Respondent
• Court: Wyoming Supreme Court

211 P.2d 946

66 Wyo. 317

ELMER HOLMES, Plaintiff and Respondent, v. EVA HOLMES, Defendant and Appellant;

EVA HOLMES, Plaintiff and Appellant v. ELMER HOLMES, Defendant and Respondent

Nos. 2436 and 2435

Supreme Court of Wyoming

November 29, 1949

ACTION by Elmer Holmes against Eva Holmes for divorce, consolidated with an action by Eva Holmes against Elmer Holmes for separate maintenance.

From a judgment of the District Court of Fremont County, C. D Murane, J., in favor of Elmer Holmes, the wife, Eva Holmes appealed.

Affirmed.

The Supreme Court, Blume, J., affirmed the judgment. The court held that support order entered in the separate maintenance action could be corrected after the term as in case of a clerical error to show that the order was for alimony pendente lite, and that the order was not res judicata of the issues raised in the divorce action.

For the appellant, each cause was submitted on the brief of John J Spriggs of Lander, Wyoming.

There was no appearance for the respondent in these causes.

POINTS OF COUNSEL FOR APPELLANT.

Sec 3-5919 is a special proceeding designed to provide protection to a wife who has been deserted by her husband by providing her support and maintenance. This statutory proceeding is res judicata of the divorce proceedings of defendant filed in the subsequent collateral case, 6878 by Elmer Holmes v. Eva Holmes, Davis v. Davis, 56 Wyo. 524, 111, P. 2nd. 124, and cases annotated in 138 ALR 337.

The statutes of Wyoming provide an exclusive method for attack on a judgment, none of which was followed herein. Parrot v. District Court, 20 Wyo. 494, 126 P. 45; State v. Allen, 288 P. 1054 (Wyo.) The award is a continuing judgment--a vested right--and continues until further order of the court. The court is without power, authority or jurisdiction to release or set aside, save by appeal, accrued installments. Biewend v. Biewend, 109 P. 2nd. 701, 132 ALR 1264.

A nunc pro tunc entry is to correct clerical errors, or mistakes of the clerk, some misprison. It can never correct a mistake of the judge, nor be used to correct judicial errors, nor to render a judgment different from that actually rendered, even though the judgment actually rendered was not what the judge intended to render. Burnside v. Wand, 170 Mo. 531, 71 SW 337.

In the case at bar, this is not trying to correct a mistake or misprison of the clerk, this judgment is the judgment of the court itself, it is signed by the judge; it is entered on the journals; it was acted on and enforced by contempt proceedings. This kind of a judgment must be corrected under the statute, within the time provided by statute and on the procedure provided by statute. The power to change its judgments, as well as the time within which such change must be made, depends on different principles. 7 R. C. L. page 1020, Sec. 47, citing Kaufman v. Shain III Cal. 16, 43 P. 393, 52 ASR 139.

Separate maintenance is the allowance granted the wife for support of herself and children, while living separate and apart from her husband, without fault on her part, and is decreed in an action brought solely for that purpose. She need not be driven into the divorce court when such a proceeding is abhorent to her, or in case of her refusing to do so, being compelled to submit to a deprivation of her rights which equity and humanity clearly give her. Keezer, Marriage and Divorce, Second Addition, page 444, Sec. 635.

The Wyoming Statutes provide an exclusive method of attack for alteration of or modification, vacating or setting aside a judgment after the term. Sec. 3-2801 W.C.S. 1945; Parrot v. District Court, 20 Wyo. 494, 126 P. 45; State v. Allen, 42 Wyo. 296, 288 P. 1058. A judgment beyond or contrary to, or not based on a proper pleading is absolutely void. State v. District Court Natrona County, 33 Wyo. 281, 238 P. 545.

BLUME, Justice. RINER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

These actions involve, on the one hand, an action for divorce brought by Elmer Holmes against Eva Holmes in which a divorce was granted to Elmer Holmes, the plaintiff in that action. The second action, finally dismissed by the court, is an action for separate maintenance under Section 3-5919, Wyo. Comp. Stat., 1945, in which an order allowing alimony was entered, dated September 11, 1947. A motion was subsequently made to modify that order, so as to show that the allowance of alimony was one pendente lite. That motion and the issues in the divorce proceedings and the action for separate maintenance were consolidated for trial and the main question herein is as to whether or not the original order entered in the separate maintenance action was res judicata of the issues raised in the divorce proceedings. The parties will be referred to herein by name, or Elmer Holmes will be designated as the plaintiff and Eva Holmes as the defendant or appellant.

No brief has been filed in this court on behalf of Elmer Holmes. It is true that the record indicates that he is poor. Despite his poverty, however, we wish that his counsel who represented him in the trial court had seen fit to file a brief herein in order to help us to solve the problems involved herein, some of which at least, are not unimportant. The court prefers to decide cases before it when all parties are represented.

The record in this case discloses the following facts:

On March 27, 1946, as alleged by appellant, Elmer Holmes brought an action for divorce against the appellant praying for a divorce. The grounds therefor were substantially the same as the grounds alleged in the subsequent divorce proceeding. On April 9, 1946, the court made an order directing Elmer Holmes to pay to the appellant $ 50 a month for her support. He failed to comply with the order. On August 5, 1947, the court, pursuant to motion cited Elmer Holmes to show cause why he should not be punished for contempt. On August 8, 1947, Elmer Holmes dismissed his petition without prejudice and nothing was done in the action subsequently.

On August 12, 1947, Eva Holmes instituted an action for separate maintenance against Elmer Holmes alleging that the parties were married on February 14, 1943, at Tacoma, in the State of Washington, and since that time have been and are now husband and wife; that no children were born as a result of the marriage; that on March 15, 1946, the defendant willfully and without just cause, deserted the plaintiff and has refused to live with and has failed to support her; that she, Eva Holmes, conducted herself as a faithful wife should; that Elmer Holmes is an able-bodied man and should support her. She asked an order to that effect. Notice was served upon the defendant to appear in court on October 19, 1947, for a hearing upon the petition thus filed. On September 5, 1947, before a hearing thereon, Elmer Holmes, the defendant in the separate maintenance action, filed his answer and cross-petition admitting the marriage of the parties; that there are no children born of the marriage, but denying each and every other allegation contained in the petition for separate maintenance. In his cross-petition he alleged that Eva Holmes had been guilty of extreme cruelty to him and had offered him such indignities as to render his condition intolerable; that she, without just cause or excuse deserted and abandoned his home; that such desertion and abandonment had continued for more than one year last past; that she had conducted herself in an unseemly and unwifely manner; that she had continually associated improperly with other men and openly and notoriously attended public places of amusement with them; that she had visited the homes of other men at unseemly times and hours in a manner indicating her infidelity to the defendant; that such conduct on her part caused him great embarrassment and humiliation and created a condition which is intolerable and which he could no longer endure. He accordingly asked that Eva Holmes take nothing by her action and that he be granted an absolute divorce from her.

On September 15, 1947, an order dated September 11, 1947, was entered in the separate maintenance action reciting in part as follows: This cause comes on regularly for hearing on the petition of Eva Holmes for support of herself as the wife of Elmer Holmes. The plaintiff appears in person accompanied by John J. Spriggs, her attorney. The defendant appears in person with H. S. Harnsberger, his attorney. Both parties testify and produce their evidence and the court having heard said evidence, considered the same, and after hearing arguments by the respective counsel finds generally for plaintiff and against the defendant. The court finds specifically that the plaintiff is lawfully wedded to the defendant; that since March 27, 1946, they have been living separate and apart; that during said time Elmer Holmes has failed and neglected to contribute anything to the support of Eva Holmes; that no proceedings for divorce are pending or were pending at the time of the commencement of this action that the court now has full and complete jurisdiction of the parties and the subject matter herein; that Eva Holmes is in need of support by defendant; that Elmer Holmes should pay her $ 30 every two weeks, until the further order of the court herein, together with the sum of $ 25 as temporary allowance for attorney fees. An order for the payment of these sums was accordingly entered. On September 20, 1947, John J. Spriggs, as attorney for Eva Holmes filed a motion in the foregoing case moving the court to strike from the files the cross-petition of the defendant asking for a divorce alleging that such pleading is an improper pleading in the action for support and that the court has already determined in the hearing for such...