Hubbard v. Hubbard

• Decision Date: 23 April 1958
• Citation: 324 P.2d 469,213 Or. 482
• Parties: Caroline Hill HUBBARD, Executrix of the Estate of James W. Hubbard, Deceased, Appellant, v. Pearl HUBBARD, now Pearl Hubbard Bootsman, Respondent.
• Court: Oregon Supreme Court

Page 469

324 P.2d 469

213 Or. 482

Caroline Hill HUBBARD, Executrix of the Estate of James W Hubbard, Deceased, Appellant, v. Pearl HUBBARD, now Pearl Hubbard Bootsman, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 30, 1958.

Decided April 23, 1958.

Tolbert H. McCarrol, Portland, argued the cause for appellant. With him on the briefs were Tanner & Carney, Portland.

Gladys M. Everett, Portland, argued the cause and filed a brief for respondent.

Before PERRY, C. J., and LUSK, WARNER and KESTER, ^* JJ.

LUSK, Justice.

This appeal raises the question of the validity of a nunc pro tunc decree making an allowance for minor children in a divorce suit.

The parties are Caroline Hill Hubbard, the executrix of the estate of James W. Hubbard, deceased, who was the plaintiff in the divorce suit, and Pearl Hubbard Bootsman, formerly Pearl Hubbard, the defendant in such suit. The parties will be hereinafter referred to as the executrix and the defendant.

On February 1, 1939, the court entered a decree granting the defendant a divorce upon her cross-complaint in a suit for divorce commenced by her husband, who defaulted. The defendant's cross-complaint alleged that there were two minor children of the marriage, Betty Jean and James Junior, aged respectively 13 and 11 years, and that $30 a month was a reasonable amount to be allowed her for their support. She prayed for custody of the children and the allowance of such sum for their support. On the hearing she testified that she was seeking $30 per month support money for the children, and that that amount would enable her to take care of them. The decree is in accordance with the prayer of the cross-complaint and with her testimony.

On April 1, 1955, the court entered the following nunc pro tunc decree:

'It appearing to the court that the Decree heretofore entered by the clerk in the above entitled matter is not a correct memorial of the Decree as rendered and announced by this court in the above entitled matter in that said Decree as rendered and announced by said court provided that 'the defendant will be directed to pay $50.00 a month for the support of the children'; and

'Whereas, through inadvertence and a clerical error, the sum of $30.00 was inserted in said decree instead of the sum of $50.00 a month for the support of the children;

'Now, therefore, it is hereby ordered that the Decree heretofore entered by the court in the above matter on the first day of February, 1939, be and the same is hereby corrected to conform to the actual Decree annnounced and rendered by this court by changing paragraph three thereof to read as follows:

"It is further ordered, adjudged and decreed that the said James W. Hubbard shall pay to the defendant herein the sum of $50.00 a month for the support of their minor children, the first month's payment to be made on the first day of February, 1939, and the sum of $50.00 to be paid the first day of each month thereafter.'

'That this Order correcting the record of said Decree be entered nunc pro tunc to appear to of record as of the first day of February, 1939, that being the date when said Decree was originally made and entered.

'Done in open court this 1st day of April, 1955.'

At the time that the foregoing nunc pro tunc decree was entered James W. Hubbard was dead.

Thereafter, on April 21, 1955, the executrix filed a motion to vacate the nunc pro tunc decree based on the following grounds: (1) that the court had no jurisdiction to enter it; (2) that neither James W. Hubbard, deceased, nor the executrix of his estate was given notice of the proposed change in the decree, and therefore he and his estate have been deprived of property without due process of law; and (3) that the decree dated February 1, 1939,

'was in accordance with the allegations of defendant's amended answer and cross-complaint, and in accordance with the testimony of the defendant, and the intention of the court and the parties at the time of the entry of the decree, and was relied upon by the defendant in subsequent levies of execution, and the entry of said judgment in the sum of $30.00 per month for the support of said minor children was not through inadvertence or clerical error, but in accordance with the intention of the court and the parties, as aforesaid.'

A hearing was had on said motion before Judge Donald E. Long, who signed both decrees, at which the respective parties were represented by counsel. Thereafter the court, on June 6, 1955, entered an order which recited that the nunc pro tunc decree was entered for the sole purpose of correcting a clerical error inadvertently appearing in the original decree, and denied the motion to vacate. It is from this order that the appeal has been taken by the executrix.

The testimony in the divorce suit was taken down and a transcript thereof, duly certified by the official court reporter, was filed in the case pursuant to ORS 8.400. In the transcript appears the following statement by the court made at the conclusion of the testimony:

'You may have your decree, the care and custody of the children, and the defendant will be directed to pay $50.00 a month for the support of the children.' (Italics added.)

As shown by the judge's oral opinion on the motion to vacate the nunc pro tunc decree, as well as by a recital in that decree, he relied on this record as the justification for the correction. He said:

'I have reviewed the testimony in this case and there is no question but what the court said at the time the testimony was taken in 1938 [sic]--Mr. Rauch was the reporter and a very accurate court reporter--and at that time the court was apparently dissatisfied with the request for support money for two children, 8 and 10 years of age, and this transcript shows the court said * * * [the court then quoted the statement from the reporter's transcript set out above].'

The judge did not claim to have any independent recollection of the case.

During the term at which a judgment is rendered the court has jurisdiction to change it. After the expiration of the term, if control of the judgment has not been retained in some proper manner, or if there is no statute otherwise providing, that power no longer exists, except that the court may still correct clerical, as contrasted with judicial errors, in order to make the record speak the truth and conform it to what actually occurred. Safeway Stores, Inc. v. Ohlsen, 192 Or. 1, 18-21, 233 P.2d 778; Bogh v. Bogh, 185 Or. 93, 103-106, 202 P.2d 503.

In an early case it was held by this court that where a mistake is not apparent on the record and must be made out upon evidence aliunde the court is powerless to alter the judgment after the term at which it was rendered. Nicklin v. Robertson, 28 Or. 278, 286, 42 P. 993, 52 Am.St.Rep. 790. See, also, Senkler v. Berry, 52 Or. 212, 217, 96 P. 1070; Cochran v. Baker, 34 Or. 555, 52 P. 520, 56 P. 641. Doubt was cast upon this restrictive rule by the opinion in Grover v. Hawthorne, 62 Or. 65, 72-75, 116 P. 100, 121 P. 804; and in State v. Donahue, 75 Or. 409, 416-417, 144 P. 755, 147 P. 548, 5 A.L.R. 1121, it was held that the entry of a nunc pro tunc order for the purpose of amending or correcting the record may be sustained if merely based on the court's memory or on any competent legal evidence foreign to the record. See, also, Richey v. Robertson, 86 Or. 525, 531-532, 169 P. 99; Costello v. Costello, 120 Or. 439, 440, 442, 251 P. 303; State v. Lillie, 172 Or. 194, 204, 139 P.2d 576.

It is also held by the weight of authority, and, as we think, the better reasoning, that, as stated in 1 Freeman on Judgments, 5th Ed., 284, § 146:

'* * * 'clerical' is employed in a broad sense as contradistinguished from 'judicial' error and covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. In other words, the distinction does not depend so much upon the person making the error as upon whether it was the deliberate result of judicial reasoning and determination, regardless of whether it was made by the clerk, by counsel or by the judge.'

See, also, State v. Lillie, supra; 49 C.J.S. Judgments § 237, p. 450; and cases cited in Annotation, 10 A.L.R. 590.

It has been said by this court that 'orders made nunc pro tunc, correcting or amending the record, will very seldom be disturbed by an appellate court, and never, except for an abuse of discretion or absolute want of authority to make them.' Grover v. Hawthorne, supra, 62 Or. at pages 68 and 76, 116 P. at page 101. While similar language has been used by courts in other jurisdictions (see cases in Annotation, 126 A.L.R. 974), it is difficult for us to understand how a rule of that kind can be justly or intelligently applied in all cases unless it means that if there is evidence to support the lower court's action the appellate court will not disturb it. See, 30A Am.Jur. 580, Judgments, § 594. In California it is held that a recital in the order made nunc pro tunc that a clerical error has crept into the court's first order is not conclusive of either the fact or the nature of the error. But, where such a recital rests upon evidence in which there is a substantial conflict, it will not be disturbed upon appeal. In re Burnett's Estate, 11 Cal.2d 259, 79 P.2d 89. This we believe to be a correct statement of a sound rule, and is substantially the rule that has been applied in our...