Mabry v. Baird

• Decision Date: 16 May 1950
• Docket Number: No. 33371,33371
• Citation: 203 Okla. 212,219 P.2d 234
• Parties: MABRY v. BAIRD et al.
• Court: Oklahoma Supreme Court

Page 234

219 P.2d 234

203 Okla. 212

MABRY v. BAIRD et al.

No. 33371.

Supreme Court of Oklahoma.

May 16, 1950.

Rehearing Denied June 13, 1950.

Syllabus by the Court.

1. A judgment is rendered, within the meaning of the law, at the time it is pronounced by the court, and is final, valid and enforceable as between the parties from that date, without formal entry.

2. While a trial court, by order nunc pro tunc, may correct the record of a judgment theretofore rendered in order that such record shall truly reflect such judgment, it may not by such order render another and different judgment, nor adjudicate property rights which were not involved in the former judgment.

3. The rights of a wife in her husband's property arising from, or growing out of the marital relationship are, after a divorce is granted, determined solely by the provisions of the decree of divorce. She may, however, after the divorce is granted, assert and enforce any right she may have in property of the husband not involved in the divorce action, or disposed of by the decree of divorce, where the right so asserted or sought to be enforced is vested in her by contract with her husband, or by operation of law.

4. Where, in the trial of an action for divorce and division of property, the prayer of the petition includes a request that the court fix an attorneys fee for plaintiff's attorneys, and without objection by any party the trial court renders judgment granting the divorce and dividing the property, and continues the matter for the fixing of attorneys fees, and thereafter fixes such fees without reopening or vacating the original judgment, and it further appears that all parties were agreeable to the court fixing such fees to be paid by the defendant, and made no objection to the action of the court, such action on the part of the court does not establish that the judgment granting a divorce and dividing the property was interlocutory only.

5. By the provisions of 32 Cum.Supp.1947 § 75, the trial court, upon granting a divorce, is given the same power with respect to community property of the parties as it has to any other property of the husband and wife.

W. K. Garnett, Chas. H. Garnett, both of Oklahoma City, for plaintiff in error.

Everest, McKenzie, Gibbens & Crawford, Oklahoma City, for defendants in error

LUTTRELL, Justice.

This is an action for divorce and division of jointly acquired or community property brought by the plaintiff Manila M. Mabry against E. K. Mabry. At the close of all the evidence the trial court, on April 7, 1947, rendered judgment granting the plaintiff a divorce and dividing the property between plaintiff and defendant. It did not render judgment for attorneys fees as prayed for in plaintiff's petition, but continued the matter of attorneys fees for a further hearing. The minute entry of the clerk on the trial docket evidencing the rendition of this judgment reads as follows: 'Ent. Comes on for further hearing. Decree to plaintiff & property settlement made all as per J. E. Cont. as to attorneys fees. (Van Meter)' From the record it appears that the findings of the trial court as to a division of the property between the parties were to some extent specific. The property of the parties which the court undertook to divide comprised interests in oil and gas mining leases, mineral interests, insurance policies having a cash surrender value, corporate stock, bank accounts, household furniture, and office furniture in the defendant's dental office. The trial court, although from the record it appears that a list of all the property involved was in its possession or available to it, did not make a specific division of all the particular properties involved, but after stating what specific property should be set apart to plaintiff as her separate property, and what property should be set apart to defendant as his separate property, and dividing certain items of personal property, stated that the remaining properties were to be divided equally between the parties and left the division thereof to the respective parties and their attorneys, such division to be contained in the journal entry of judgment to be prepared by the attorneys. It appears that the division of the property could not be agreed upon by the parties and their attorneys, and after one or two consultations with the trial judge, the parties were still in disagreement. Thereupon plaintiff, on May 3, 1947, filed in the cause an application stating that the court entered its decree in said cause on April 7 1947, and made certain findings with reference to the jointly acquired property of the parties; that after the court made said decree the attorneys repressenting the plaintiff and defendant attempted to make a division of the jointly acquired property in accordance with said decree, but that they had been unable to agree to the satisfaction of their clients as to the decree of the court, and requested the court to clarify and make its decree more specific and certain as to certain items of property. In said application she also called the attention of the court to the fact that there was certain property apparently belonging to the defendant, or standing in his name, which the court in its decree did not dispose of, the same having been overlooked by the parties at the trial of the cause, and prayed the court to set the application down for hearing; permit the plaintiff to offer evidence, and that the court clarify and make more specific its intentions as to the manner in which it intended to make disposition of the properties of plaintiff and defendant, and also for a decree covering the real and personal properties not mentioned in the petition or answer, and not testified about at the time of the trial. Pending the hearing on this application the defendant, on May 7, 1947, departed this life. George L. Baird was appointed administrator of defendant's estate, and upon his application, with the consent of plaintiff, an order of revivor was made making Baird, as administrator, a party defendant on behalf of the deceased defendant.

On May 19, 1947, plaintiff filed in said cause a motion for an order determining that no judgment was ever rendered in the cause, and in the alternative if a judgment had been rendered, for an order vacating the same. In this motion plaintiff alleged that there had been no final announcement of judgment in regard to the property settlement and attorneys fees, and that the action had been, by the death of defendant, abated as a matter of law; that if the judgment was rendered it should be vacated, since the defendant's death removed the only ground which the court assigned for granting a divorce; that the death of the defendant had precluded any enjoyment on his part of the property accumulated by the parties by their joint efforts during their marriage, and that the judgment should be vacated and plaintiff permitted to take her share of the jointly acquired or community property by inheritance.

Thereafter on May 24, 1947, T. J. Mabry, a brother of E. K. Mabry, and Frank W. Mabry and Earl Mabry, Nephews of E. K. Mabry, claiming to be the sole and only heirs at law of E. K. Mabry, filed a motion for revivor, which was granted, and thereupon these parties filed a petition in intervention asserting that judgment had been rendered on April 7, 1947, and requesting the court to deny the motion of plaintiff to vacate the judgment if rendered, or to decree that no judgment had been rendered in the case. On May 27, 1947, all these motions and applications were set down for further hearing, additional evidence was heard, and on May 27, 1947, the court denied the motion to vacate and held that judgment was rendered on April 7th, and set the matter for June 5, 1947, for final settlement, all as per journal entry. On June 4th the court permitted the plaintiff to file an amendment to her original petition, setting forth that property which in her application to clarify the judgment she had stated was not testified to by the parties or considered by the court when the court rendered its judgment, or purported judgment, on April 7, 1947, and further alleging that while in her original petition she did not specifically allege that defendant was liable to her for her attorneys fees in the action, but did pray for the allowance of attorneys fees and costs, she now in the amendment alleged that she was entitled to have and recover from the defendant such reasonable allowance for attorneys fees as the court might fix and determine.

On June 5, 1947, the trial court heard evidence as to the value of the attorneys' services to plaintiff, and additional evidence on the part of plaintiff with reference to certain accounts in the defendant's office, and other property not included in the judgment of April 7th, and rendered a judgment in which for the first time the trial court properly decreed a specific division between parties of all the specific property acquired by them during coverture, which were included in and disposed of by the decree of April 7th. In this judgment the court also undertook to divide the additional properties about which no testimony had been offered, and the disposition of which had not been considered by the court on April 7th, and also fixed the amount of the attorneys fees to be awarded plaintiff's attorneys out of the estate of defendant. The court found and held that the judgment rendered by it on April 7, 1947, was a final judgment and was intended to dispose of the property rights of the parties, and to grant a divorce to plaintiff, and made the order or decree of June 5, 1947, an order nunc pro tunc relating back to and attempting to clarify and make certain the division of property made by it on April 7, 1947.

From the record it appears that plaintiff did not file a motion for new trial as to the judgment of April 7th, but did file a motion for new trial from the judgment or order nunc pro tunc of ...