Stork v. Stork

Stork v. Stork
1995 OK 61
898 P.2d 732
66 OBJ 1982
Case Number: 82680
Decided: 06/13/1995
Modified: 06/14/1995
Supreme Court of Oklahoma

BARBARA B. STORK, PLAINTIFF-APPELLANT,
v.
WALTER J. STORK, JR., DEFENDANT-APPELLEE.

Appeal from the District Court, Tulsa County, Deborah C. Shallcross, J.

On certiorari to the Court of Appeals, Div. I

¶0 In a post-decree proceeding, brought some 12 years after the marital bond's dissolution, the former wife pressed for nunc pro tunc correction of the date shown in the decree for the commencement of her support alimony payments. The District Court, Tulsa County, Deborah C. Shallcross, trial judge, denied the wife's quest. The Court of Appeals reversed. On certiorari previously granted.

THE COURT OF APPEALS' OPINION IS VACATED AND THE TRIAL COURT'S POST-DECREE REFUSAL "TO CORRECT" THE DIVORCE DECREE NUNC PRO TUNC IS AFFIRMED.

Debbra J. Gottschalk, Tulsa, for appellant.

Richard T. Garren, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, for appellee.

OPALA, Justice.

[898 P.2d 734]

¶1 This certiorari presses for our decision two issues: (1) Did the trial court err in refusing to correct nunc pro tunc the divorce decree's stated date for the commencement of support alimony payments? and (2) Is the plaintiff entitled to a counsel-fee award and litigation expenses incurred in this appeal? We answer both questions in the negative.

I

THE ANATOMY OF LITIGATION

¶0 Walter and Barbara Stork [husband and wife] were divorced by consent decree entered on November 27, 1979, which was first signed by the parties and their counsel and then submitted to the trial judge for his approval. According to its terms, the husband was ordered to pay support alimony in the amount of $900 a month for a total of $135,900, with payments to commence June 15, 1979. At the time the decree was entered the husband was paying temporary alimony (of $400 a month), the obligation directed by an earlier pendente lite order of April 5, 1979.

¶1 On March 11, 1992, some 12 years later, the wife moved to modify the divorce decree's support alimony award by invoking the provisions of 43 O.S. 1991 § 134 (E),

¶2 The wife filed an amended motion,

¶3 The husband next moved for summary denial of the wife's amended motion. He argued that (a) the relief sought constitutes an untimely delayed attack on the judgment, [898 P.2d 736] (b) the wife's attempt to correct a mistake is subject to the statutory time bar for modification of judgments, and (c) a nunc pro tunc entry is not available to correct something which was not done. The wife countered that the term nunc pro tunc is used in Oklahoma jurisprudence interchangeably with reformation and that equity's principles which govern reformation of an agreement are equally applicable to a proceeding for nunc pro tunc correction. According to the wife, the divorce decree represents the parties' agreement except for the date that alimony payments were to commence. She urged that the date should be reformed either to correct a mutual mistake of the parties or on the ground of the husband's inequitable conduct. She asserted she is entitled to adduce evidence in support of her request that the alimony award be modified.

¶4 The trial court denied the wife's March 11, 1992 quest, ruling that (a) the last alimony installment due under the decree had accrued in December 1991 before her modification plea was filed; (b) the wife's quest for an order nunc pro tunc (or reformation of the agreement) was in effect a request to modify the decree; (c) because the case addresses a divorce decree rather than a contract or deed, the reformation jurisprudence advanced by the wife is inapposite as well as factually distinguishable; (d) the wife's rights ceased to be contractual and merged into the decree; and (e) there are no disputed fact issues relevant to the wife's quest for nunc pro tunc correction of the decree.

¶5 On denial of her new-trial motion,

¶6 The Court of Appeals reversed and remanded the cause for a hearing on the wife's quest for nunc pro tunc correction. The appellate court held that summary relief was inappropriate because there was a fact question whether the record supports a plea for nunc pro tunc correction. We granted certiorari on the husband's petition and now, for the reasons to be explained, vacate the Court of Appeals' opinion and affirm the trial court's post-decree refusal to correct the divorce decree nunc pro tunc.

II

THE NUNC PRO TUNC RELIEF SOUGHT BY THE WIFE

¶7 Orders nunc pro tunc are designed neither to bring into the record what a court might or should have done nor what it might or should have intended to do. The function of a nunc pro tunc entry is to amend a judgment to make it speak the truth about what actually transpired or was considered and adjudged.

¶8 The wife's quest for a nunc pro tunc correction of the divorce decree is to make it reflect the parties' intent that the alimony installments would begin December 15, 1979 (the first month after the divorce), rather than June 15, 1979 (the date stated in the decree). The divorce decree - which had been prepared by the wife's lawyer, was signed by the parties and their counsel and then submitted for the trial judge's approval - apparently failed to embody this element of their agreement. The wife concedes that she knew the date was wrong when she signed the decree and mailed it to her counsel. She assumed that either her lawyer or the trial judge would correct the date. It is undisputed that a copy of the decree was mailed to her shortly after its entry.

¶9 This appeal clearly does not present a case of clerical omission in the judgment actually given. The trial judge signed the agreed document presented to him for approval, which had been prepared by the wife's lawyer and bore the signatures of both parties and their counsel. He changed only the date appearing in the first line of the text (from June 8, 1979 to November 27, 1979) to reflect the time the cause came before him for adjudication.

The Wife's Quest Does Not Fall Within The Purview Of 12 O.S. 1991 § 1031

¶10 A judgment whose terms exclude some essential elements of the bargain upon which it was based may be subject either to vacation or modification under the provisions of 12 O.S. 1991 § 1031 .

¶11 The husband argues that the wife's plea presents nothing more than an untimely § 1031

The Decree is Not Void for Want of Jurisdiction

¶12 When absence of jurisdiction appears on the face of the judgment roll, the judgment is void and subject to attack at any time.17 If extrinsic evidence is needed to show the jurisdiction's absence, the judgment is not facially invalid, although it may be declared voidable.18 When the authority to deal with a subject does exist, the manner and extent of the power's exercise, even if patently excessive, must stand undisturbed, absent a timely direct attack.19

¶13 The wife argues that the trial court has no jurisdiction to order a support alimony obligation to commence at a point of time anterior to the decree's entry. This argument is utterly without merit. In a divorce case in which the trial court clearly has cognizance (a) over the subject matter (support alimony) and (b) over the parties, it also has (c) the power to set the amount of permanent alimony. Even if the trial court [898 P.2d 739] had erred by making the date for commencing permanent alimony payments anterior to the decree's entry, the decree would not be void but at most merely voidable.

The Construction Of A Decree

¶14 The wife argues the divorce decree is unclear on its face in that it purports to afford a retroactive remedy. She directs us to those decree provisions which require permanent support alimony to commence before the date of the decree's entry. These provisions, she urges, are in conflict and cannot be read together.

¶15 Once a judgment has become final for want of an appeal or in consequence of an appellate court's decision, any controversy over the meaning and effect of that judgment must be resolved by resorting solely to the face of the judgment roll.23 The meaning of a judgment is to be divined from the terms expressed in its text, which is to be construed with the other parts of the judgment roll.24 Only if a judgment is ambiguous on the face of the record proper may the court reach it for construction. When called upon to so do, the court stands confined to an inspection of the judgment roll. It cannot extend its inquiry dehors the instruments that comprise the roll.25

¶16 We hold that the wife may not secure the relief she seeks by characterizing this proceeding as one to construe an earlier judgment. The judgment roll presents no ambiguity to be construed.

III

THE WIFE'S APPEAL-RELATED COUNSEL-FEE QUEST

¶17 The wife claims in this court the sum of $2,571.57 in appeal-related attorney's fee and costs because she "is not in a position to bear the burden of the legal fees incurred."

¶18 In statutorily authorized litigation, counsel fees on appeal, much like taxable costs, may be allowed in the case in which the services were performed.

¶19 Based on our review of the record, there are no compelling or overriding equitable considerations in favor of either litigant. We hence hold that each party shall bear its own counsel-fee and other litigation expenses incurred in the appeal or certiorari process of this post-decree proceeding for nunc pro tunc modification.

IV

CONCLUSION

¶20 Nunc pro tunc

¶21 ON CERTIORARI PREVIOUSLY GRANTED, THE COURT OF APPEALS' OPINION IS VACATED AND THE TRIAL COURT'S POST-DECREE REFUSAL "TO CORRECT" THE DIVORCE DECREE NUNC PRO TUNC IS AFFIRMED.

¶22 ALMA WILSON, C.J., KAUGER, V.C.J., and HODGES, LAVENDER, SIMMS, HARGRAVE and WATT, JJ., concur.

¶23 SUMMERS, J., concurs in part and dissents in part.

Footnotes:

1 The pertinent terms of 43 O.S. 1991 § 134 are:

"* * * E. Except as otherwise provided in subsection D of this section, the provisions of any divorce decree pertaining to the payment of alimony as support may be modified upon proof of changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable to either party. Only those installments accruing subsequent to the motion for modification may be modified.

* * * * * *

G. The provisions of subsections D and E of this section shall have retrospective and prospective application with regards to modifications of the provisions of a final judgment or order for alimony as support, or of a divorce decree pertaining to the payment of alimony as support, regardless of the date that the order, judgment, or decree was entered." (Emphasis added.)

2 The decree, which was signed by a judge different from one whose name appears as the trial judge in this post-decree contest, states that the alimony installments are to commence June 15, 1979 and continue until the sum of $135,900 (or 151 months of alimony) has been paid.

3 The wife's amended motion (filed July 17, 1992) is entitled: "Plaintiff's amendment to comply with court's order of July 6, 1992". It was apparently her response to the July 6, 1992 dismissal of her first motion, which had given her 10 days to replead. The appellate record contains no memorialization of the July 6, 1992 ruling; it shows up only as an entry on the appearance docket. While neither the appearance docket sheets nor minutes unsigned by the judge can be accepted by a reviewing court as a proper substitute for the judge's memorialized entry of judgment, orders or of any proceedings occurring at nisi prius, the appearance docket may serve as an authoritative source for ascertaining the omission of an instrument from the appellate record. Martin v. Lib. Nat. Bank & Trust, Okl., 839 P.2d 179, 179-180 (1992); Hulsey v. Mid-America Preferred Ins. Co., Okl., 777 P.2d 932, 935 n. 5 (1989); Little v. Employer's Casualty Co., 180 Okl. 628, 71 P.2d 687, 687-688 (1937).

4 The originally drafted consent decree had shown $108,000 for support alimony; this amount was increased to $135,900 some time in early November 1979. The parties initialed the change on the decree before its submission to the trial judge for approval.

5 Among the defenses pressed in the husband's answer are: (a) the wife failed to state a claim upon which relief can be granted; (b) she is estopped from pressing her claim for scrivener's error because she knew in 1979 the alimony payments were to begin at a time "inconsistent with the parties' intent"; (c) laches operates to bar this proceeding by the wife for her failure timely to correct the alleged scrivener's error; (d) the husband has paid all the support alimony required by the divorce decree; (e) the wife's claim is unenforceable under the Statute of Frauds; (f) the wife's attempt to modify the parties' written agreement is contrary to law; (g) her modification quest is an impermissible collateral attack upon a valid judgment; and (h) the district court is without authority to modify the divorce decree.

6 According to the wife's new-trial motion, (a) the trial court erroneously ruled that a nunc pro tunc entry is an inappropriate remedy in domestic relations cases; (b) the law makes no distinction between domestic relations and contract cases for granting nunc pro tunc relief; and (c) since this "matter involves an issue of pure law and not one of fact, an affidavit in support of [her] motion would be superfluous."

7 Federal Nat. Bank & Trust Co. v. Dillard, Okl., 830 P.2d 1374, 1375 (1992), quoting Hawks v. McCormack, 180 Okl. 569, 71 P.2d 724, 725 (1937); Hadnot v. Shaw, Okl., 826 P.2d 978, 982 n. 11 (1992); Glasgow v. Fox, Okl., 757 P.2d 836, 838 (1988); Chandler v. Denton, Okl., 747 P.2d 938, 941 (1988); Hair v. Oklahoma Corp. Com'n, Okl., 740 P.2d 134, 141 (1987); Application of Okla. Nat. Gas Co., Okl., 715 P.2d 477, 478 (1986); McCullough v. Safeway Stores, Inc., Okl., 626 P.2d 1332, 1334 (1981); Dickason v. Dickason, Okl., 607 P.2d 674, 676-677 (1980); Stevens Expert Cleaners & Dyers v. Stevens, Okl., 267 P.2d 998, 1001-1002 (1954); Mabry v. Baird, 203 Okl. 212, 219 P.2d 234, 239-240 (1950); Woodmansee v. Woodmansee, 137 Okl. 112, 278 P. 278 (1929); Marker v. Gillam, 80 Okl. 259, 196 P. 126 (1921). See also Mullins v. Ward, Okl., 712 P.2d 55, 60 n. 9 (1985).

8 A facial miscalculation is one that appears from the four corners of the decision. Ferguson v. Ferguson Motor Company, Okl., 766 P.2d 335, 337 n. 5 (1988); Chandler, supra note 7 at 941; Application of Okla. Nat. Gas Co., supra note 7 at 478; Dickason, supra note 7 at 677; Fowler v. Zimmerman, Okl., 383 P.2d 682, 685 (1963); Stanka Construction Company v. Yates, Okl., 359 P.2d 729, 730-731 (1961); Stevens, supra note 7 at 1001; City of Shawnee v. Kinnamon, 207 Okl. 299, 249 P.2d 417-418 (1952); Mabry, supra note 7 at 239-240; Co-Wok-Ochee v. Chapman, 76 Okl. 1, 183 P. 610 syl. 1 (1919).

9 Chandler, supra note 7 at 941; Application of Okla. Nat. Gas Co., supra note 7 at 478. See also Pettit v. Arkansas Louisiana Gas Co., Okl., 595 P.2d 793 (1979); Hawkins v. Hurst, Okl., 467 P.2d 159 (1970); Jones v. Jones, Okl., 442 P.2d 319 (1968); Fowler, supra note 8 at 685; Humphrey Oil Corp. v. Lindsey, Okl., 370 P.2d 296 (1961); Vitale v. Dunnett, Okl., 365 P.2d 122 (1961); Oklahoma Turnpike Authority v. Kitchen, Okl., 337 P.2d 1081 (1959); Stevens, supra note 7 at 1001; In re Peter's Estate, 175 Okl. 90, 51 P.2d 272 (1935).

10 Although the first two paragraphs in the divorce decree state that there was a trial on the merits, the parties concede they merely signed the consent decree and then submitted it to the trial judge for approval. Admissions made in the briefs may be considered as supplementing and curing an otherwise deficient appellate record. Reeves v. Agee, Okl., 769 P.2d 745, 753 (1989); Womack v. City of Oklahoma City, Okl., 726 P.2d 1178, 1181 (1986); Timmons v. Royal Globe Ins. Co., Okl., 713 P.2d 589, 592 (1985); Norris v. Norris, Okl., 695 P.2d 506, 507 (1984); Greenwood v. Lyles & Buckner, Inc., Okl., 329 P.2d 1063, 1067 (1958); Ramer v. State, Okl., 302 P.2d 139, 140 (1956).

11 For the pertinent terms of 12 O.S. 1991 § 1031 , see infra note 15.

12 Dickason, supra note 7 at 677; Key v. Key, Okl., 388 P.2d 505, 510-511 (1964). For the pertinent terms of 12 O.S. 1991 § 1031 , see infra note 15.

13 For the pertinent terms of §§ 1032 and 1038, see infra note 16. Dickason, supra note 7 at 677; Fisher v. Fisher, Okl., 558 P.2d 391, 392-393 (1976).

14 Hough v. Hough, Okl., 772 P.2d 920, 921 (1989); Scoufos v. Fuller, Okl., 280 P.2d 720, 723 (1955).

15 The pertinent terms of 12 O.S. 1991 § 1031 (3) are:

"The district court shall have power to vacate or modify its own judgments or orders within the times prescribed hereafter: * * *

Third. For mistake, neglect or omission of the clerk or irregularity in obtaining a judgment or order."

16 The version of § 1032 in effect when the divorce decree was rendered (12 O.S. 1971 § 1032 ) provided:

"The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action. The motion to vacate a judgment because of its rendition before the action regularly stood for trial can be made only within three (3) months after the rendition of said judgment."

The presently effective version, 12 O.S.Supp. 1993 § 1032 , provides:

"The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action."

The version of § 1038 in effect when the divorce decree was rendered (12 O.S. 1971 § 1038 ) provided:

"* * * Proceedings [to vacate or modify a judgment or order] for the causes mentioned in subdivisions three and six of the same section, shall be [commenced] within three (3) years [after the judgment was rendered or order made]. . . . A void judgment may be vacated at any time, on motion of a party, or any person affected thereby."

The presently effective version, 12 O.S.Supp. 1993 § 1038 , provides in pertinent part:

"* * * Proceedings [to vacate or modify a judgment, decree or order] for the causes mentioned in paragraphs 3 and 6 of Section 1031 of this title, shall be within three (3) years. . . . A void judgment, decree or order may be vacated at any time, on motion of a party, or any person affected thereby." (Emphasis added.)

17 See 12 O.S. 1991 § 1038 , supra note 16. The trial court's decision is deemed void only when the face of the record reveals that at least one of the three elements of jurisdiction was absent, i.e., jurisdiction over the parties, jurisdiction over the subject matter or jurisdictional power to pronounce the particular decision that was entered. Messenger v. Messenger, Okl., 827 P.2d 865, 870 n. 21 (1992); Heiman v. Atlantic Richfield Co., Okl., 807 P.2d 257, 260 (1991); Capitol Federal Savings Bank v. Bewley, Okl., 795 P.2d 1051, 1054 (1990); Hough, supra note 14 at 921; Mayhue v. Mayhue, Okl., 706 P.2d 890, 893 n. 8 (1985); Scoufos, supra note 14 at 723; State ex rel. Commissioners of Land Office v. Keller, Okl., 264 P.2d 742, 747-748 (1953).

18 Scoufos, supra note 14 at 723; Hough, supra note 14 at 921.

19 Jurisdiction is not wanting but merely exceeded when judicial authority is exercised erroneously. Neither legal error nor an excessive exercise of cognizance operates to render a judicial act facially void and vulnerable to collateral attack. Mayhue, supra note 17 at 893; Woodrow v. Ewing, Okl., 263 P.2d 167, 171 (1953).

20 Woodrow, supra note 19 at 171.

21 Mayhue, supra note 17 at 893 n. 7.

22 Mayhue, supra note 17 at 893 n. 7; Woodrow, supra note 19 at 171.

23 The legal effect of a finally adjudicated case is measured by the four corners of its judgment roll. Dyke v. Saint Francis Hosp., Inc., Okl., 861 P.2d 295, 303 n. 27 (1993); Willard v. Kelley, Okl., 803 P.2d 1124, 1134 n. 32 (1990); Chandler, supra note 7 at 941; Reeves, supra note 10 at 752; Mayhue, supra note 17 at 895; Timmons, supra note 10 at 592.

24 Elliott v. City of Guthrie, Okl., 725 P.2d 861, 863 (1986); Timmons, supra note 10 at 592; Dickason, supra note 7 at 677; Long v. Drumright, Okl., 375 P.2d 953, 957 (1962); Knight v. Armstrong, Okl., 303 P.2d 421, 424 (1956); Filtsch v. Sipe, 198 Okl. 356, 178 P.2d 612, 615 (1947).

25 Timmons, supra note 10 at 591 n. 5, quoting 12 O.S. 1981 § 32.1 (renumbered in 1972 from 12 O.S. 1971 § 704 in Okl.Sess.L. 1972, Ch. 119, § 5) which provides in pertinent part:

"The record [synonymous with `record proper' and `judgment roll'] shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court. . . ."

See also Mayhue, supra note 17 at 895 n. 17; Veiser v. Armstrong, Okl., 688 P.2d 796, 800 (1984); Short v. Hale, Okl., 400 P.2d 816 (1965); Peerson v. Mitchell, 205 Okl. 530, 239 P.2d 1028 (1951); Mid-Continent Pipe Line Co. v. Seminole County Excise Bd., 194 Okl. 40, 146 P.2d 996, 1000 (1944); Dime Savings and Trust Co. v. Able, 185 Okl. 461, 94 P.2d 834 (1939).

26 Elliott, supra note 24 at 863; Timmons, supra note 10 at 592; Dickason, supra note 7 at 677.

27 The terms of 43 O.S.Supp. 1992 § 110 , which is the applicable statute in force when the issue came up, provide in pertinent part:

"* * * C. Upon granting a decree of divorce or separate maintenance, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances.

D. The court may in its discretion make additional orders relative to the expenses of any such subsequent actions . . . brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the divorce action made for the benefit of either party or their respective attorneys."

Rule 1.31(a)(5), Rules on Perfecting a Civil Appeal, 12 O.S. 1991, Ch. 15, App. 2, provides in pertinent part:

"(a) For the purposes to be stated the trial court does retain jurisdiction in the case after a petition-in-error has been filed in this court.

* * * * * *

(5) In matrimonial litigation, to award attorney fees for services rendered or to be rendered in connection with the appeal. . . . Jones v. Jones, Okl.,

 612 P.2d 266 [1980]. * * *"

Thielenhaus v. Thielenhaus, Okl., 890 P.2d 925, 934-935 (1995); Chamberlin v. Chamberlin, Okl., 720 P.2d 721, 727-728 (1986).

28 For the pertinent terms of 43 O.S.Supp. 1992 § 110 , see supra note 27.

29 Thielenhaus, supra note 27 at 935; Chamberlin, supra note 27 at 727; Harmon v. Harmon, Okl., 770 P.2d 1, 4 (1988); Carpenter v. Carpenter, Okl., 657 P.2d 646, 653 (1983); Gardner v. Gardner, Okl.App., 629 P.2d 1283, 1286-1288 (1981); Phillips v. Phillips, Okl., 556 P.2d 607, 610 (1976).

30 20 O.S. 1991 § 15.1 ; TRW/Reda Pump v. Brewington, Okl., 829 P.2d 15, 20-22 (1992).

31 Lamb v. Alexander, 74 Okl. 250, 179 P. 587 (1919); Hawks v. McCormack, 180 Okl. 569, 71 P.2d 724 (1937); Cartwright v. Atlas Chemical Industries, Inc., Okl., 623 P.2d 606, 610 (1981). See in this connection an explanation of the common law's immemorial prescription in Marian P. Opala, Praescriptio Temporis and Its Relation to Prescriptive Easements in the Anglo-American Law, 7 TULSA L.J. 107, 111 (1971).