Kaufman v. Kaufman

Opinion

Dissolution of marriage cause. Wife appeals a postjudgment order correcting clerical error in the division of property.

On June 22, 1976, husband and wife, married for 34 years and with 2 adult children, obtained an interlocutory judgment of dissolution of marriage which reserved the issue of property division for later trial. At a mandatory settlement conference on July 13, 1976, husband and wife and their respective counsel stipulated in court to specific terms of a property division, spousal support, fees, and costs. The court approved the stipulated terms, made them the order of the court, and directed wife’s counsel to prepare a written judgment. Subsequently, counsel for the parties exchanged correspondence which discussed terms not previously agreed upon and covered by the stipulation and order. Thereafter, a proposed judgment modifying certain terms of the stipulation and order was approved as to form and content by both counsel, and was signed by the court on August 27, 1976.

Two and a half years after entry of judgment, husband, apparently on receiving demands from wife’s attorney, instituted this action to conform the judgment to the stipulation and order, asserting that his counsel at the time of approval of the judgment’s form and content inadvertently failed to notice clerical discrepancies between (1) the stipulation and order and (2) the proposed judgment. The trial court found the judgment did not conform to the stipulation and order, and corrected the judgment in the following respects: (1) the statement in the judgment that wife’s spousal support was based on husband’s “current or projected net income... of $120,000” was changed to read husband’s “adjusted gross or taxable income which has been approximately $120,000 per year,” (2) the provision that husband would maintain six life insurance policies for the benefit of his children was

On appeal, wife contends that the parties modified the terms of their oral stipulation through correspondence between counsel and that the signed judgment accurately reflected counsel’s modified terms. She also contends that husband’s failure to seek modification of the judgment until two and a half years after its entry barred whatever right he may have had to modify the judgmeñt.

1. The trial court gave little weight to correspondence between counsel, viewing it as self-serving and hearsay. We think this view of the trial court was correct, in that the letters contain little to indicate that counsel undertook substantive modification of the provisions of the stipulation and order. Nor would counsel have been authorized to so do if they had tried, for counsel have no authority to bind their clients to substantive terms of a settlement. (Code Civ. Proc., § 283; Linsk v. Linsk (1969) 70 Cal.2d 272 , 277-278 [ 74 Cal.Rptr. 544 , 449 P.2d 760 ].) There is no direct evidence that husband consented to anything other than the terms of the original stipulation. If any substantive modifications were agreed to by counsel in their correspondence, a supposition which appears doubtful, such modifications were not binding on their clients. Beyond these limitations on the authority of counsel, however, lies the further factor that the present c^use does not merely involve a property settlement agreement between counsel but a court order which culminated a court-initiated and court-supervised procedure designed to settle and terminate contested litigation. The order of the court directed preparation of a judgment on specified terms. The supposed practice by counsel of continued renegotiation during the drafting process of agreed-on terms of property settlements, if such is the practice, plays no part in a court-supervised settlement whose terms have been ordered into effect by the court.

2. Wife’s other contention is in the nature of laches and estoppel. If the judgment was incorrect, she argues, the husband slept too

The order is affirmed.

Compton, J., and Beach, J., concurred.

A petition for a rehearing was denied February 13, 1980, and appellant’s petition for a hearing by the Supreme Court was denied March 13, 1980. Mosk, J., did not participate therein.