Brooms v. Brooms

The plaintiff wife sued for divorce on the ground of extreme cruelty. Defendant husband cross-complained for divorce on the same ground and later filed an amendment to the cross-complaint adding a cause of action for annulment on the ground that a prior marriage of the wife to one Richard Daniels was undissolved when she married Brooms in 1943. The wife upon information and belief denied that the prior marriage had not been dissolved and at the trial testified that Daniels in 1939 had told her that he had obtained a final decree of divorce from her and had remarried. On August 26, 1954, the court granted the plaintiff wife an interlocutory decree of divorce and custody of the children and alimony and child support. Each of the parties was awarded certain items of community personal property and an undivided one-half interest in a parcel of real property located in the city of Oakland, county of Alameda. The order of events occurring subsequent to the trial is of great importance in this appeal and in chronological order they are:

The original findings, denominated “First

Amended Findings of Fact and Conclusions of Law,” filed......................August 26,1954

Interlocutory Decree of Divorce, entered.....August 27, 1954

(No Notice of Entry of Interlocutory Decree was ever served or filed.)

Final Decree of Divorce, entered........September 2,1955

Notice of motion for a new trial pursuant to Sections 657 and 659 of Code of Civil

Procedure, filed .......................September 16,1955

Notice of motion to vacate interlocutory decree and final decree pursuant to Sections 663 and 663(a) of the Code of Civil

Affidavit of newly discovered evidence,

filed..................................September 22,1955

filed..................................September 23,1955

Notice of Motion to strike original Answer and Cross-Complaint and Amendment to Cross-Complaint and for leave to file new

Answer and Cross-Complaint, filed.........October 10,1955

Affidavit of due diligence, filed............October 14,1955

Order denying Motion for New Trial and denying Motion to Vacate Judgments and Decrees, and granting alternative relief under Code of Civil Procedure Section 662 authorizing filing of amended findings of fact and conclusions of law and modified

interlocutory decree, filed.................October 27,1955

Second Amended Findings of Fact and

Conclusions of Law, filed..................October 27,1955

Modified interlocutory decree, entered......October 31,1955

Notice of appeal from original interlocutory decree and from final decree and modified interlocutory decree, filed...........November 3,1955

Notice of Motion for Order to Modify Previous Order for Plaintiff’s Support and Alimony, filed.........................November 16,1955

Notice of motion to set aside interlocutory decree, final decree and modified interlocutory decree as void judgments under and pursuant to Section 473 of Code of Civil Procedure, filed........................November 16,1955 Order denying defendant’s motion to set aside interlocutory decree, final decree and modified interlocutory decree, filed.........December 2,1955

Notice of Appeal from order denying motion to vacate interlocutory decree, final decree and modified interlocutory decree, pursuant to Code of Civil Procedure Section 473, filed ..........................December 2,1955

The motion for a new trial was made in reference to the original interlocutory decree filed August 26, 1954. Although filed over a year after the entry of the interlocutory decree, it was nonetheless timely in that no notice of entry of judgment was ever served upon defendant. The motion for

Respondent contends the modified interlocutory decree was a nunc pro tunc order and that the parties’ rights are predicated upon the original interlocutory decree. This, she contends, makes the final decree entered prior to the filing of the modified interlocutory decree valid because of the nunc pro tunc effect of the modified order. There was no motion by plaintiff to have the second amended findings of fact and the modified interlocutory decree entered nunc pro tunc, nor does the record reflect that the court on its own motion made the order nunc pro tunc. In view of the plain language of Civil Code, section 131.5, requiring a motion for entry of such a decree, the second amended findings of fact and modified interlocutory decree cannot be said to be nunc pro tunc orders within the contemplation of said section.

Respondent argues that even though the modified interlocutory decree may not be considered a nunc pro tunc order, nonetheless, its effective date is that of the original decree in that it is not a new judgment but merely a modification of the original. If the modification is clerical in nature, it might be argued that it became effective as of the date of the filing of the original decree. (Williams v. Koenig, 219 Cal. 656 , 659 [ 28 P.2d 351 ] ; People v. A.T.L. Inc., 150 Cal.App.2d 152 , 153 [ 309 P.2d 552 ] ; Wilson v. Wilson, 109 Cal.App.2d 673 , 674 [ 241 P.2d 281 ].) This interpretation could not apply to a modification which requires an exercise of judicial discretion. (Gossman v. Gossman, 52 Cal.App.2d 184 , 194 [ 126 P.2d 178 ]; 24 Cal.Jur. 1005.) [4, 5] The correction was required in this case because the findings of fact did not support the interlocutory decree in that there was no finding as to plaintiff’s residence. This was not a clerical error because in Coleman v. Coleman, 23 Cal.App. 423 , at page 425 [ 138 P. 362 ], the court held: “ [T]he fact

The second amended findings of fact cured this jurisdictional defect and found plaintiff had been a resident of Alameda County, and the State of California, for the time required by law. These second amended findings of fact are supported by the record. The order of the trial court authorizing the plaintiff to file amended findings of fact and modified interlocutory decree at the conclusion of the hearing on the motion for a new trial was an order within the court’s discretion and within the authority conferred upon the court by the provisions of Code of Civil Procedure, section 662 (Moklofsky v. Moklofsky, 79 Cal.App.2d 259 , 264 [ 179 P.2d 628 ]). Section 662 further provides relative to such amended findings or modified judgment, as follows: “ [A]ny judgment thereafter entered shall be subject to the provisions of sections 657 and 659 of this code.” The defendant did not elect to proceed according to such provisions and utilize the affidavits previously filed, but, relying upon Code of Civil Procedure, section 473, moved to have the interlocutory decree, final decree and modified interlocutory decree set aside as void judgments. The question is moot as to the original interlocutory decree because it was superseded by the modified interlocutory decree. In considering a comparable situation in Gossman v. Gossman, supra, 52 Cal.App.2d 184 , the court said at page 199: “ [L] ikewise it is obvious that the ruling of the trial court denying defendants’ original motion for a new trial as addressed to the first judgment, has no application here. Under the circumstances shown, the subsequent third judgment superseded for all purposes the prior judgments [citations]. The trial court had jurisdiction to entertain defendants’ motion for a new trial addressed to the third judgment and it was not bound by any prior ruling in the ease.” (Hayes v. Silver Creek etc. Co., 136 Cal. 238 [ 68 P. 704 ] ; Amell v. Amell, 10 Cal.2d 153 [ 73 P.2d 888 ].)

A final decree of divorce derives its validity from the interlocutory decree which precedes it. In this case, the original interlocutory decree was superseded by the modified inter

Defendant’s appeal from the trial court’s denial of his motion to vacate the modified interlocutory decree and his appeal from the modified interlocutory decree present the same question. In each instance, defendant predicates his right to a reversal of the trial court upon the affidavit of one Richard Lee Daniels, filed pursuant to his motion for a new trial, wherein he alleges that he is the husband of plaintiff and was her husband at the time she married defendant. This issue was litigated at the trial and was determined adversely to the defendant. There is substantial evidence to support the judgment. It is true the evidence was largely hearsay testimony as pointed out by appellant. However, no objection was made to the testimony when it was introduced, nor was any motion made to have it stricken from the record. In fairness to appellant’s counsel, it should be pointed out that he did not represent defendant at the trial of the action. Hearsay testimony when properly admitted in evidence will support a finding. (Powers v. Board of Public Works, 216 Cal. 546 , 552 [ 15 P.2d 156 ] ; Nelson v. Fernando Nelson & Sons, 5 Cal. 2d 511 , 518 [ 55 P.2d 859 ].) The judgment is also supported by the presumption that a marriage solemnized as required by law is valid. In the case of Wilcox v. Wilcox, 171 Cal. 770 , at page 774 [ 155 P. 95 ], the court said: . .

These cases must be taken as establishing it to be the law in this state that the burden of proof is on the party assailing a marriage on the ground that a former husband or wife is still alive, to show not only the former marriage, but also that it has not been dissolved by death or judicial decree, and that the prima facie presumption in favor of the validity of the marriage assailed outweighs the presumption of the continuance of life of the former husband or wife.” (Moran v. Superior Court, 38 Cal.App.2d 328 , 332 [ 100 P.2d 1096 ].)

The modified interlocutory decree based upon the evidence presented at the trial of the action is not void and the trial court did not err in denying defendant’s motion to set the judgment aside. Nor did the court err in denying defendant’s motion to set aside its orders awarding support money, alimony and attorney’s fees to the plaintiff upon the ground that plaintiff’s marriage to defendant was bigamous and void.

The order denying defendant’s motion to vacate the final decree is reversed. The appeal from the original interlocutory decree of divorce is dismissed. The order denying defendant a new trial and granting alternative relief to plaintiff is affirmed. The order denying defendant’s motion to vacate the modified interlocutory decree of divorce and the order denying defendant’s motion to vacate orders for alimony, support money and attorney’s fees are affirmed. The modified interlocutory decree of divorce as modified by this court is affirmed. Each side to bear own costs on appeal.

Kaufman, P. J., and Dooling, J., concurred.

A petition for a rehearing was denied June 27, 1957, and appellant’s petition for a hearing by the Supreme Court was denied July 24, 1957.