Jeans v. Jeans

• Decision Date: 28 May 1958
• Docket Number: No. 7685,7685
• Citation: 314 S.W.2d 922
• Parties: C. Rex JEANS, Plaintiff-Respondent, v. Patricia Jane JEANS, Defendant-appellant.
• Court: Missouri Court of Appeals

Page 922

314 S.W.2d 922

C. Rex JEANS, Plaintiff-Respondent, v. Patricia Jane JEANS, Defendant-appellant.

No. 7685.

Springfield Court of Appeals, Missouri.

May 28, 1958.

Motion for Rehearing or to Transfer Overruled July 11, 1958.

Watson & Tudor, Joplin, Charles E. Ruyle, Neosho, for defendant-appellant.

Stanley P. Clay, Emerson Foulke, Joplin, for plaintiff-respondent.

STONE, Presiding Judge.

In this second appellate chapter ¹ of another confused and tragic story of post-marital strife, defendant wife appeals from orders entered in the circuit court on October 9, 1957, (a) sustaining plaintiff husband's motion for nunc pro tunc 'correction' of the judgment for alimony rendered in the divorce suit on March 2, 1954, and entering a 'corrected' judgment in accordance with plaintiff's said motion, (b) quashing an execution issued for delinquent monthly alimony payments, and (c) overruling defendant's motion for suit money and attorneys' fees. Plaintiff's motion for, and the trial court's entry of, a nunc pro tunc 'correction' rested upon a difference between the language of the minutes of the judge's docket (reproduced literally in the margin) ² and the language of the judgment entered by the circuit clerk (the only 'corrected' paragraph being copied marginally), ³ in that the judge's minutes provided for alimony of $1,000 on April 1, 1954, $350 per month for the next eighteen months, and $250 per month thereafter 'until death or remarriage of defendant,' while the judgment required payments in identical amounts, on the same dates and for like periods, 'except that all alimony herein adjudged and decreed in favor of the defendant shall cease upon her death or remarriage.' (All emphasis herein is ours.) The only nunc pro tunc 'correction' in the judgment was deletion of the italicized 'except' clause and substitution, in lieu thereof, of the phrase, 'until death or remarriage of defendant.' The execution for delinquent alimony payments was quashed on the theory (urged by plaintiff) that the 'corrected' judgment was 'beyond the power of the court to render' and was void, because it 'could continue the payment of alimony beyond the death of the plaintiff.' ⁴ It should be noted that the circuit judge who tried the divorce suit had died in the meantime and that the nunc pro tunc entry was by a successor judge.

The initial question is whether the original judgment should have been 'corrected' nunc pro tunc. Stated in the simplest terms, the purpose and function of a nunc pro tunc entry, which may be made only to correct a clerical mistake or misprision of the clerk, ⁵ is to make the record speak the truth; ⁶ and, since the principal reason for such correction is the furtherance of justice, ⁷ well-considered cases admonish that the inherent power to correct nunc pro tunc should be exercised with caution and circumspection that it may not become a vehicle of irreparable wrong or grievous oppression. ⁸ As is usually true, the judgment in the instant case was not entered in the precise language of the judge's minutes, which were mere record evidence of what had been adjudged, ⁹ but we are satisfied that the judgment entered by the clerk was the judgment directed by the court. In so concluding, we need not rely upon the strong presumption to that effect, ¹⁰ but we accept (for the purposes of this opinion) the frank statement of plaintiff's counsel that there is no substantial or material difference in meaning or effect between the original judgment and the 'corrected' judgment. It thus being apparent that the judgment was not inconsistent with or contradictory of the judge's minutes [compare Raymond v. Love, 192 Mo.App. 396, 402-405, 180 S.W. 1054, 1056-1057; Kreisel v. Snavely, 135 Mo.App. 155 159, 115 S.W. 1059, 1061], it should be construed and treated as in harmony with such minutes [In re Fulsome's Estate, Mo.App., 193 S.W. 618, 621]; and, with the original judgment admittedly speaking the truth, there was no clerical mistake or misprision of the clerk and the 'correction' nunc pro tunc was both unnecessary and unauthorized. Consult J. J. Newberry Co. v. Baker, 239 Mo.App. 1130, 1136, 205 S.W.2d 935, 938; Monk v. Wabash R. Co., 166 Mo.App. 692, 708, 150 S.W. 1083, 1087, 1088-1089.

However, plaintiff's bold assertion that, 'with or without the nunc pro tunc order * * *, the judgment rendered in reference to alimony was void absolutely,' confronts us with the necessity of determining whether the original judgment purported to impose an obligation to make alimony payments which would or might continue after plaintiff's death. ¹¹ If so, the judgment was void as beyond and without the court's jurisdiction, ¹² and the execution for delinquent alimony payments properly was quashed because a void judgment for alimony will not support an execution. Carl v. Carl, Mo.App., 284 S.W.2d 41, 44; Edmondson v. Edmondson, Mo.App., 242 S.W.2d 730, 736. Our problem thus becomes one of construction of the original judgment, in consonance with basic and accepted principles. A judgment should be construed "in light of the situation of the court, what was before it, and the accompanying circumstances" [McDougal v. McDougal, Mo.App., 279 S.W.2d 731, 739(26); 49 C.J.S. Judgments Sec. 436a, loc. cit. 867], and its meaning should be determined in the light of the character and object of the proceeding culminating in the judgment. Nolker v. Nolker, Mo.App., 226 S.W. 304, 307(3); Clark v. Fighting Wolf Mining Co., Mo.App., 209 S.W. 307, 308. We should examine and consider the judgment in its entirety, ¹³ and we should be concerned with the 'sense,' rather than the 'abstract force,' of the language employed. ¹⁴ It may be presumed that the court intended to render a valid, not a void, judgment; ¹⁵ and, where it is reasonably possible to do so, such construction should be adopted as will give force and effect to the judgment, will make it serviceable instead of useless, and will support rather than destroy it. ¹⁶

The judgment under consideration clearly and specifically provided for alimony payments of $1,000 on April 1, 1954, $350 per month for the next eighteen months, and $250 per month thereafter. If the 'except' clause (i. e. 'except that all alimony herein adjudged an decreed in favor of the defendant shall cease upon her death or remarriage') had not been appended, manifestly the alimony judgment, although subject to modification upon proper application and factual showing [Section 452.070, RSMo 1949, V.A.M.S.], would have been impregnable to any such assault as that mounted by plaintiff here. The death of either party would have terminated plaintiff's obligation for the payment of alimony under such judgment without the 'except' clause [North v. North, 339 Mo. 1226, 1232, 100 S.W.2d 582, 585(7), 109 A.L.R. 1061; Bishop v. Bishop, Mo.App., 151 S.W.2d 553, 556(2)]; but defendant's remarriage, although affording good ground for a motion to modify the judgment, would not have terminated plaintiff's said obligation unless and until an order of court to that effect had been entered. Nelson v. Nelson (banc) 282 Mo. 412, 418, 221 S.W. 1066, 1068(4). See also Schneider v. Schneider, Mo.App., 273 S.W. 1081, 1084(4). So addition of the 'except' clause actually served no purpose other than that (beneficial to plaintiff) of providing for automatic and immediate termination of plaintiff's alimony obligation in the event of defendant's remarriage--an end now accomplished by recent statutory enactment. Laws of 1957, p. 390 V.A.M.S. Sec. 452.075.

The judgment entered by the clerk was in the precise language of a 'journal entry' obviously prepared by an attorney; and, although the draftsman remains unidentified here, we would not impugn his professional ethics and integrity (whoever he was and whomever he represented) by attributing to him a purpose or scheme to induce the entry of a void judgment. Indubitably, not only the scholarly circuit judge, who rendered the original judgment, but also interested counsel for both parties contemplated and intended the entry of a valid judgment providing, among other things, for the payment of alimony in the amounts and on the dates particularized; and, it is just as indisputable that all interested counsel unquestionably construed the original judgment as valid and acted upon that belief for more than three years, until (as plaintiff's counsel again concede with refreshing candor) they discovered the Smethers opinion in 1957. Mindful that a practical construction adopted by the interested parties or in which they have acquiesced for an extended period of time should not be changed without strong and compelling reason, ¹⁷ we are persuaded that the 'except' clause in the original judgment reasonably and fairly may be and should be construed as a permissible and (from plaintiff's standpoint) desirable limitation and restriction of a valid judgment obligation to pay alimony, rather than as an affirmative but forbidden extension and expansion of plaintiff's alimony obligation by purported imposition thereof in all events (upon not only plaintiff but also, should he die before defendant, upon his estate) to the time of defendant's death or remarriage. Compare Baer v. Baer, 364 Mo. 1214, 1220, 274 S.W.2d 298, 303. Contrast Smethers v. Smethers, supra; Edmondson v. Edmondson, supra. With the force and effect of the judgment thus limited within the legitimate power of the circuit court [Clark v. Fighting Wolf Mining Co., supra, 209 S.W. loc. cit. 308], the judgment stands with unimpaired validity and it necessarily follows that the order quashing the execution for delinquent alimony paymentswas erroneous.

Our holding that the judgment was valid likewise disposes of plaintiff's primary contention as to defendant's motion for suit money and attorneys' fees, i. e., that such motion properly was overruled because the judgment was 'void absolutely.' Smethers v. Smethers, supra, 263 S.W.2d loc. cit. 62(6). By his ...