Luedde v. Luedde

• Decision Date: 18 May 1948
• Citation: 211 S.W.2d 513,240 Mo.App. 69
• Parties: Elisabeth H. Luedde, Respondent, v. Henry W. Luedde, Appellant
• Court: Missouri Court of Appeals

211 S.W.2d 513

240 Mo.App. 69

Elisabeth H. Luedde, Respondent, v. Henry W. Luedde, Appellant

Court of Appeals of Missouri, St. Louis District

May 18, 1948

Appeal from the Circuit Court of St. Louis County; Hon. Raymond E LaDriere, Judge.

Reversed and remanded with directions.

Calhoun & Boisseau for appellant.

(1) The Courts of this state recognize the right of husband and wife in contemplation of a separation and divorce, to settle and adjust by agreement between themselves all property rights growing out of the marital relationship. Young v Thompson (Mo. App.), 290 S.W. 85; Dorsett v. Dorsett (Mo. App.), 90 S.W.2d 188; North v. North, 100 S.W.2d 582, 339 Mo. 1226, 109 A. L. R. 1061; Crenshaw v. Crenshaw, 276 Mo. 471. (2) Where the court in its decree incorporates or makes reference to an agreement or stipulation filed stating its decree is in accordance with such agreement or stipulation the decree is an approval of the agreement entered into by the parties. Poor v. Poor (Mo. App.), 167 S. W., l. c. 474; North v. North, 339 Mo. 1226, 100 S.W.2d 582. (3) The power to correct judgment nunc pro tunc is inherent in every court of record. Loring v. Groomer, 100 Mo. 632, 19 S.W. 950; In re Tompkin's Estate, 50 S.W.2d 659. (4) A nunc pro tunc judgment, at a subsequent term, can only be made upon evidence furnished by the papers and filed in the cause, or something of record, or in the clerk's minute book, or on the judge's docket; in other words a nunc pro tunc entry can only be employed to correct a clerical mistake or misprision of the clerk. It can never correct a mistake or oversight of the judge, nor be used to correct judicial errors, nor to reorder a judgment different from that actually rendered, even though the judgment rendered was not the judgment the judge intended to render. Cordes v. Femmer, 289 S. W., l. c. 15; Burnside v. Wand, 170 Mo. 531; In re Tompkin's Estate, 50 S.W. (2d), l. c. 660. (5) A judgment cannot be amended nunc pro tunc on oral testimony but only on evidence furnished by the papers, files, or records in the cause: Becher v. Deuser, 169 Mo. 159, 69 S.W. 363; Rolla Spec. Road Dist. v. Phelps Co., 116 S.W. (2d), l. c. 64; State v. Jeffers, 64 Mo. 376; Exchange Bank v. Allen, 68 Mo. 476; Belkin v. Rhodes, 76 Mo. 650. (6) Neither estoppel nor limitation of time affects the right of a court to enter a nunc pro tunc judgment to correct error in a duly recorded judgment. Ex Parte Messina, 128 S.W.2d 1082. (7) The action of a Court in making an order nunc pro tunc at a subsequent term of Court correcting judgment rendered during former term, without notice to the opposite party and in his absence, is a nullity and void. Clancy v. Luyties Realty Co., 10 S.W. (2d), l. c. 915; Pulitzer Pub. Co. v. Allen, 113 S. W., l. c. 1161; Mann v. Schroer, 50 Mo., l. c. 307, 308.

Rene J. Lusser and Carnot Hodges for respondent.

(1) Stipulations between parties to divorce suit providing for payments of certain sums by husband for support and maintenance of wife and child are regarded as being merely advisory to the Court. Kinsella v. Kinsella, 60 S.W. (2) 747, 748; Hayes v. Hayes, 75 S.W. (2) 614, 618; Brown v. Brown, 209 Mo.App. 416, 239 S.W. 1093; Meyers v. Meyers, 91 Mo.App. 151. (2) A nunc pro tunc order cannot be used to compel the Court to enter a judgment contrary to the judgment it intended to enter and actually did enter, even though such judgment is in variance with the stipulation of the parties. Bishop v. Bishop, 151 S.W. (2) 553; Thompson v. Baer, 139 S.W. (2) 1080; Haycraft v. Haycraft, 141 S.W. (2) 170. (3) A judgment must be definite, certain and not conditioned upon any contingency. The trial Court correctly avoided any portions of the stipulations of the parties which would have rendered the Court's judgment indefinite, uncertain, conditional and therefore void. Goldstein v. Goldstein, 237 Mo.App. 274, 165 S.W. (2) 876, 879; Bishop v. Bishop, 151 S.W. (2) 553; 49 C. J. S. 191, 192.

McCullen, P. J. Anderson and Hughes, JJ., concur.

OPINION

McCULLEN

This appeal arises out of a suit for divorce brought by Elisabeth H. Luedde, hereinafter referred to as plaintiff, against her husband, Henry W. Luedde, referred to as defendant. The original divorce suit was instituted on February 21, 1944. The cause was tried and judgment rendered in favor of plaintiff on March 3, 1944. At the time of the trial the parties entered into a stipulation as follows:

"Come now Elisabeth H. Luedde, the plaintiff herein, and Henry W. Luedde, the defendant herein, and hereby stipulate and agree that in the event the Court shall find from the evidence to be adduced in this cause that plaintiff is entitled to a decree of divorce from the defendant, that said decree shall provide that:

"(1) Plaintiff shall have the absolute and exclusive custody, care and control of their minor child, Robert Howell Luedde, and of such child or children referred to in the petition as may subsequent hereto be born to said plaintiff of said marriage and waives all objection to the removal of said children from the State of Missouri should the plaintiff in the future desire the same.

"(2) That defendant shall pay to plaintiff the sum of One Hundred Seventy-Five Dollars ($ 175.00) per month as alimony and support money for herself and the sum of One Hundred Dollars ($ 100.00) per month for the support and maintenance of said minor child, Robert Howell Luedde. Said sums shall be paid upon the granting of said decree or upon the first day of March, 1944, whichever date shall occur later, and monthly thereafter on the first day of each calendar month until the first day of the calendar month following the birth of said child or children yet to be born; that after the birth of said child or children said defendant shall thereafter continue to pay alimony and support to plaintiff in the sum of One Hundred Dollars ($ 100.00) per month, and Fifty Dollars ($ 50.00) per month for the support and maintenance of each child of said marriage above mentioned so long as said defendant is a member of the United States Army with the rank of Major or above and thereafter the plaintiff and defendant shall agree on a sum or amount for such purposes or in event of their failure to agree thereon such sum or amount shall be fixed by order of this Court.

"(3) That satisfactory disposition of all other property rights of the parties hereto has been made by the parties hereto.

"(4) That defendant shall pay all costs herein, including a fee of Two Hundred Fifty Dollars ($ 250.00) to plaintiff's counsel, the same to be taxed as costs and paid by the defendant."

Said stipulation was signed personally by both of the parties and filed in court at the time of the trial.

The judgment entered by the Clerk on March 3, 1944, after reciting the divorce granted to plaintiff, proceeded as follows:

"that said plaintiff have the care, custody and control of their minor child, Robert Howell Luedde or of child or children as may subsequently hereto be born of said marriage; that defendant pay to plaintiff the sum of $ 175.00 per month alimony and $ 100.00 per month for the support and maintenance of said child Robert Howell Luedde, said sum to commence forthwith and to be paid on the first day of each month hereafter until the first day of the calendar month following the birth of said child or children yet to be born; that after the birth of child or children yet to be born, defendant shall pay to plaintiff an additional sum of $ 50.00 per month for the support and maintenance of each child or children; that defendant pay to plaintiff the further sum of $ 250.00 for attorney's fees same to be taxed as costs, and that said defendant pay the costs herein incurred, all in accordance with stipulation. Stipulation filed."

On January 15, 1946, plaintiff filed a motion for the correction nunc pro tunc of said judgment of March 3, 1944. The Court, on the same day, January 15, 1946, sustained plaintiff's motion and amended said judgment nunc pro tunc as of March 3, 1944, by making changes in the original judgment. Said amended judgment was, after reciting the granting of the divorce, etc., as follows:

"that said plaintiff have the absolute and exclusive custody, care and control of their minor child, Robert Howell Luedde, and of such child or children as may subsequently hereto be born to plaintiff of said marriage; that defendant pay to plaintiff the sum of ONE HUNDRED SEVENTY-FIVE DOLLARS ($ 175.00) per month alimony and support money for herself and the sum of ONE HUNDRED DOLLARS ($ 100.00) per month for the support and maintenance of said minor child, Robert Howell Luedde, payment of said sum to commence forthwith and be paid on the first day of each calendar month hereafter until the first day of the calendar month following the birth of any child or children yet to be born; that on and after the birth of any child or children of plaintiff and defendant yet to be born said defendant shall thereafter pay to plaintiff as alimony the sum of ONE HUNDRED DOLLARS ($ 100.00) per month, and for the support and maintenance of said minor child, Robert Howell Luedde, and each and every other child born of the marriage of plaintiff and defendant the sum of FIFTY DOLLARS ($ 50.00) per month each so long as defendant is a member of the United States Army with the rank of Major or above and thereafter until modified by stipulation executed by plaintiff and defendant and filed herein or by further order of this court.

"It is further ordered by the Court that defendant pay to plaintiff the further sum of $ 250.00 for Attorney's fees, same to be taxed as costs, that said defendant pay the costs herein incurred, all in accordance with stipulation. Stipulation filed."

Thereafter on July 30, 1946, defendan...