Reid v. Reid

• Decision Date: 03 July 1973
• Docket Number: No. 1,CA-CIV,1
• Citation: 20 Ariz.App. 220,511 P.2d 664
• Parties: Mary J. REID, Appellant, v. James E. REID, Appellee. 1866.
• Court: Arizona Court of Appeals

Page 664

511 P.2d 664

20 Ariz.App. 220

Mary J. REID, Appellant, v. James E. REID, Appellee.

No. 1 CA-CIV 1866.

Court of Appeals of Arizona, Division 1.

July 3, 1973.

Richard R. Brennan, Phoenix, for appellant.

Otto H. Linsenmeyer and Gerald G. Eastman, Phoenix, for appellee.

KRUCKER, Judge.

Appellant, Mary J. Reid, was the defendant in a divorce action below. Appeal is taken from the final judgment and the order denying costs and attorney's fees on appeal.

The first question presented is whether the trial court had discretion to change or add to the items contained in the minute entry order for judgment when signing the final judgment. The appellant claims that it was error to change the 'substance' of the decree after hearing an argument on the 'form' of the decree. The second question is whether the court erred in denying appellant's petition for the allowance of costs and attorney's fees on appeal.

For convenience, the plaintiff-appellee will be referred to as James and defendant-appellant as Mary.

The minute entry reflects the granting of an absolute divorce to James. Among other things it provided that (1) James would pay Mary $75 per month alimony until Mary died, remarried or was earning $125 per month; (2) Mary would be awarded as her sole and separate property the family house theretofore owned by the parties in joint tenancy; and (3) James should pay Mary's attorney's fees of $450. Appellant's attorney prepared the form of judgment, including the above plus an additional $300 in attorney's fees. Appellee's attorney objected under the authority of Rule 58(d), as amended, Rules of Civil Procedure, 16, A.R.S. ¹ and there was a hearing. Subsequently, the court issued a minute entry order that the judgment and decree be revised to (1) cease the $75 alimony payments at the end of six months; (2) award the family home to Mary with a $7,000 lien attached in favor of James and (3) specify that total attorney's fees should be $450.

The answer to the first question depends on whether a ninute entry order is a final judgment. The Arizona Supreme Court has stated that a minute entry is not an appealable order under A.R.S. § 12--2101 unless it complies with the procedural requirements of Rule 58(a), Rules of Civil Procedure, 16 A.R.S., that it be in writing, signed by the judge and filed with the clerk of the court. State v. Birmingham, 96 Ariz. 109, 392 P.2d 775 (1964). For that reason alone the minute entry order in the instant case is not a final judgment in the sense that it is appealable. Even when procedural requirements of Rule 58(a) for finalizing a judgment have been complied with, our legislature has provided a means for opening a judgment and directing entry of new judgment under Rule 59(e), Rules of Civil Procedure, 16 A.R.S. Pursuant to this rule the Arizona Supreme Court in Krug v. Porter, 83 Ariz. 108, 317 P.2d 543 (1957) upheld the lower court's opening of the original judgment in favor of plaintiff and subsequent ruling in favor of defendants. Clearly, the trial court has discretion to change its mind in order to render a correct decision .

If the court has such discretion as afforded by rule 59(e) after entry of judgment, surely it has the same discretion Prior to entry of judgment. Rule 58(a), Rules of Civil Procedure, 16 A.R.S. It would not be in the best interest of the parties involved to limit determination of the issues to the time prior to issuance of a minute entry order. This is especially true in a sensitive matter such as a divorce action where a decision must be made on what is often a complex set of facts. The trial judge needs ample opportunity to weigh and consider and reconsider, if necessary, the evidence in order to apportion responsibilities and property fairly. The appellant obviously recognized the value of this flexibility because she made an addition ² to the minuate entry order in her proposed form of judgment, apparently feeling that the judge in his discretion would revise his decision evidenced in the minute entry order. Furthermore, the parties should have been aware of the fact that the court did not intend the minute entry order for judgment to be inalterable, as reflected by the following comment of the court at the conclusion of trial:

'It's been my experience whenever I take these domestic relation things under advisement and try to award child support and divide the property and that I always make a mistake of some kind because I misunderstood something. So I'll make an order on it and give each counsel an opportunity to object to it. I may have overlooked something, I may have got the wrong impression about something, something of that kind.'

In fact, after issuance of the order, the judge corrected a mistake of law regarding the award of the family home to the wife. The recent case of Becchelli v. Becchelli, 109 Ariz. 229, 508 P.2d 59 (1973), stated that the trial court must divide joint tenancy property Equally. By imposing a $7,000 lien representing one half the value of the family home, the judge was properly applying the law. According to appellant, since this was a substantive change the judge should not have been allowed to make the correction.

The important consideration with regard to objections to form of judgment under Rule 58(d) is that the parties have an opportunity to be heard. In Rexing v Rexing, 11 Ariz.App. 285, 464 P.2d 356 (1970), the appellant objected to the proposed form of judgment, there was a hearing, the court revised the judgment making some changes but apparently not all of the changes suggested by appellant and then entered the judgment without further argument. The appellate court upheld this procedure stating:

'Clearly the purpose of the five day delay required by Rule 58(d) is to enable the losing party to present for determination by the court that party's objections to the contents of a judgment proposed by the successful party. We believe that this purpose is adequately served by allowing objections to the form of judgment initially proposed, and that Rule 58(d) does not require that a party be given the opportunity to object to the form of a revised judgment which is the result of the court's ruling on the same party's objections to the initially proposed judgment. We therefore hold that appellant was afforded the complete benefit of Rule 58(d). She had a full hearing on the merits of her objections to the...