Smith v. Smith, 27729

• Decision Date: 08 March 1973
• Docket Number: No. 27729,27729
• Parties: Linda B. SMITH v. Marvin R. SMITH.
• Court: Georgia Supreme Court

Page 437

196 S.E.2d 437

230 Ga. 238

Linda B. SMITH v. Marvin R. SMITH.

No. 27729.

Supreme Court of Georgia.

March 8, 1973.

Syllabus by the Court

The record in the present case shows conclusively that an omission was made in the judgment by mutual mistake of the parties, and the trial judge was authorized to correct the judgment under Code Ann. § 81A-160(g).

Charles J. Driebe, Jonesboro, for appellant.

Hutcheson, Kilpatrick, Watson & Brown, John L. Watson, Jr., Jonesboro, for appellee.

MOBLEY, Chief Justice.

This appeal is from an order denying the appellant's motion to correct a judgment.

In the divorce action by Linda B. Smith against Marvin R. Smith the parties entered into an agreement as to the custody and support of the children which provided that the husband should pay to the wife for the support of the minor children 'the sum of $20 per week . . .' This agreement was made the judgment of the court, without the intervention of a jury, on January 28, 1971.

On October 18, 1972, the appellant (former wife) made a motion to correct this judgment, asserting that the agreement which was made the judgment of the court contained an inadvertent omission and clerical error in that the words 'per child' should appear after the words '$20 per week.' Service of the motion was served on counsel for the appellee (former husband). Motion to dismiss this motion to correct judgment was filed by the appellee.

At the hearing the appellant testified that the agreement of the parties was that the appellee should pay $20 per week for each of the two minor children of the parties, and that he paid approximately $40 per week until the early part of 1972. She testified that she was employed by the attorney who represented her in the divorce action, that she typed the agreement, both parties signed it, and at the trial of the case she asked the judge to make the agreement the judgment of the court.

The trial judge questioned the appellee concerning his understanding of the agreement, the questions and answers being as follows: 'Q At the time this agreement was signed, Mr. Smith, was it or was it not your understanding that the sum of $40 per week was the amount you agreed upon for child support? A Yes, sir, it was my understanding that's what it was. Q That was what you intended it to be? A Yes.'

The trial judge stated that it appeared to him that the agreement which was made the judgment of the court was not in accordance with the understanding of the parties, but he did not think that he had legal authority to change it. He therefore denied the motion to correct the judgment.

Counsel for the appellant relies on Code Ann. § 81A-160(g) (Ga.L.1966, pp. 609, 662; Ga.L.1967, pp. 226, 239, 240) for authority to correct the judgment, this subsection reading as follows: 'Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.' He also relies on Code Ann. § 81A-106(c) (Ga.L.1966, pp. 609, 617; Ga.L.1967, pp. 226, 229, 230), which provides in part: '. . . The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it, except as otherwise specifically provided by law.'

The evidence introduced at the hearing demands a finding that it was the intention of both parties that the child support would be $20 per week per child, and not $20 per week for both children, as the agreement...