Marriage of Mullinax, Matter of

• Decision Date: 25 January 1982
• Docket Number: No. 56294,56294
• Citation: 639 P.2d 628,292 Or. 416
• Parties: In the Matter of the MARRIAGE OF Jannett Bernice MULLINAX, Petitioner on Review, and Richard Arnold Mullinax, Respondent on Review. ; CA A20238; SC 27883.
• Court: Oregon Supreme Court

Page 628

639 P.2d 628

292 Or. 416

In the Matter of the MARRIAGE OF Jannett Bernice MULLINAX Petitioner on Review and Richard Arnold Mullinax, Respondent on Review.

No. 56294; CA A20238; SC 27883.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 5, 1981.

Decided Jan. 25, 1982.

Larry T. Coady, Albany, argued the cause for petitioner on review. With him on the brief was Coady & Moore, Albany.

Robert S. Gardner, Corvallis, argued the cause for respondent on review. With him on the brief was Ringo, Walton, Eves & Gardner, P.C.

TONGUE, Justice.

This is a suit for dissolution of marriage in which the wife has petitioned this court for review of the dismissal by the Court of Appeals of her appeal from the trial court's decree upon the ground that it was not filed within the time prescribed by law. We reverse that dismissal.

The Facts.

On November 21, 1980, the trial court heard the dissolution case. Wife was petitioner; husband was the respondent. Following that hearing and prior to January 16, 1981, the trial court rendered its decision in the case in the form of a memorandum opinion and requested the wife's attorney to prepare the decree. In doing so, the wife's attorney included the following language in paragraph (3) of the decree:

"That the respondent is hereby required to pay to the petitioner the sum of $200.00 a month for said minor child to assist in the support, maintenance and education of said minor child * * *."

That decree was signed by the trial judge on "this 16th day of January, 1981, and entered nunc pro tunc to the 21st day of November, 1980." The decree was filed on the same day, January 16, 1981. ¹

The parties then discovered that the decree did not include a portion of the trial court's decision as set out in its memorandum opinion which provided that $50 of each month's child support payment of $200 was to be applied to a welfare indebtedness in the amount of $250. The parties stipulated to a modification of the decree in order to conform the decree to the provisions of the memorandum opinion. The wife's attorney then prepared an "Amended Decree of Dissolution of Marriage" which was identical in terms to the decree filed January 16, 1981, except for the language of paragraph (3), which, in the amended decree, provides as follows:

"That the respondent is hereby required to pay to the petitioner the sum of $200.00 a month for said minor child to assist in the support, maintenance and education of said minor child; that $50.00 per month of the $200.00 support payment will apply to the $250.00 debt to Welfare until it is paid." (Emphasis added)

It should be noted that paragraph (5) of both decrees provides that husband " * * * is to assume and pay all * * * family obligations * * * (which) include, but are not limited to * * * the Welfare arrearage." The provisions of paragraphs (3) and (5) of the amended decree would appear to refer to the same welfare obligation. The amended decree was signed by another judge of the same circuit court on "this 6th day of February, 1981, and entered nunc pro tunc to the 21st day of November, 1980." This amended decree was filed on the same day, February 6, 1981.

On February 20, 1981, wife filed a notice of appeal from:

" * * * the Amended Decree of Dissolution of Marriage entered in this case on February 6, 1981, and entered nunc pro tunc November 21, 1980 * * *."

No notice of appeal was filed by either party from the January 16, 1981, decree. The husband moved to dismiss the appeal from the amended decree on the ground that the notice of appeal had not been filed within the time prescribed by law. On May 5, 1981, the Court of Appeals granted husband's motion and dismissed the appeal, without opinion.

ORS 19.026(1) provides that (with some exceptions not applicable here) a notice of appeal must be filed "within 30 days after the entry of the judgment appealed from." ORS 19.010 provides, in pertinent part, as follows:

"(2) For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:

"(a) An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein.

" * * * * *

"(c) A final order affecting a substantial right, and made in a proceeding after judgment or decree."

1. Neither the rule in Hewey nor the rules in Farrell resolve the question presented in this case.

Wife contends that " * * * the present case is not distinguishable * * * " from the decision by this court in Hewey v. Andrews, 82 Or. 448, 159 P. 1149, 161 P. 108 (1916), rehearing denied (1917), and that " * * * Hewey is still good law." In Hewey, the court held, at 451, 159 P. 1149, as follows:

"Where * * * the original judgment is modified by a subsequent order, the date of the latter judgment is the time from which the limitation for taking the appeal should begin to run."

In Hewey the modification of the original judgment was the result of the trial court's ruling on the motions for judgment n.o.v. made by counsel for defendants C. S. Andrews and Lilly M. Andrews. The trial court " * * * set aside, vacated, and held for naught * * * " the prior judgment as to Lilly M. Andrews but " * * * continued (that judgment) in full force and effect as to * * * C. S. Andrews * * *." This court explained its holding as follows (82 Or. at 451-52, 159 P. 1149):

"In this instance the judgment was not altered as to C. S. Andrews, but if he were dissatisfied with the dismissal of the action as to Lillie M. Andrews, he would have been obliged to appeal from that determination, notwithstanding he may have taken an appeal from the original judgment. This procedure, if sanctioned, would necessitate two appeals by the same party when a single review of the final judgment by him ought to be sufficient, in which appeal the intermediate order could be reviewed: Section 558, L.O.L. We conclude, therefore, that the original judgment, having been set aside in part, was in effect vacated in all particulars, and that the modified judgment by referring to the preceding determination, incorporated therein the original judgment as to C. S. Andrews, thus making the latter judgment final, and the one from which this appeal was properly taken."

In ruling on the motions for judgment n.o.v. in Hewey, the court was required to determine whether there was substantial evidence to support the verdict rendered. ² See Package Containers, Inc. v. Director's, Inc., 270 Or. 845, 846, 530 P.2d 40 (1974). Thus, any change made in the prior judgment would, in effect, be a new judgment raising new grounds for appeal rather than a reiteration of a judgment already entered. In other words, the second judgment in Hewey was the result of the exercise of the court's "judicial function." In this case, unlike Hewey, the parties, by stipulation, requested that the court enter, in the form of an amended decree, a judgment it had already rendered but which had been inaccurately incorporated in the decree first entered. The amended decree in this case was the result of the correction of a "clerical error" rather than the exercise of the court's "judicial function," a distinction explained in detail below. Indeed, as wife states in her supplemental brief:

"The original decree simply did not conform to the judge's decision."

Finally, the amended decree in this case neither vacated nor incorporated by reference the earlier decree.

In David M. Scott Construction v. Farrell, 285 Or. 563, 592 P.2d 551 (1979) this court was also called upon to decide which of two "decrees" was controlling for the purpose of measuring the thirty-day time limitation provided by ORS 19.026(1). That question was resolved by determining which of the two decrees was the "final" decree in the underlying suit. In making that determination, we noted the rule as stated in Moran v. Lewis, 274 Or. 631, 634, 547 P.2d 627 (1976), that "(o)rders are not appealable until the controversy is completely and finally settled in the trial court." We also noted (at 285 Or. 568, 592 P.2d 551) that, as stated in 1 Freeman on Judgments § 38, at 63 (5th ed. 1925):

"The general rule 'as deducible from the authorities, is that if anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the judgment is interlocutory only.' * * * "

And that as stated in Freeman, supra, at §§ 33, 55:

"A judgment or decree which determines all the equities or the substantial merits of the case is final for purposes of appeal though further proceedings may be necessary in the execution of it or some incidental or dependent matter may still remain to be settled. * * * " Applying these rules, which we found to be consistent with our previous decisions, ³ to the decrees in Farrell, we held (285 Or. at 569-70, 592 P.2d 551) that the earlier decree entered by the trial court in that case was not a "final decree" so as to require the filing of a notice of appeal within thirty days from the entry of that decree, but that the subsequent decree, although entitled "Supplemental Decree," was the "final and appealable decree" in that case. Thus, the determination that only one of the two decrees in Farrell possessed the characteristics of a "final" decree under the rules as stated in that case answered the question presented in that case, i.e., from which decree the appeal should have been taken for purposes of ORS 19.026(1).

The application of those rules to the two decrees here will not resolve the question presented in this case. This is so, because each of these decrees, considered separately and measured by the rules in Farrell, is "final and appealable." Each purports to finally "(determine) all the equities (and) the substantial merits of the case," in that each decree is a "decree of dissolution of marriage" and each, by its terms, (1) dissolves the marriage of the parties; (2) awards "sole and...