Wilson v. Wilson

DOOLING, J.

After a trial before Judge George W. Schonfeld in the superior court in San Francisco findings were made and an interlocutory decree entered granting plaintiff a divorce from defendant, ordering defendant to pay alimony and awarding certain community property to plaintiff. Defendant appealed from the interlocutory decree and on the appeal the interlocutory decree was ordered modified in the following language: “ [T]he interlocutory decree is modified by striking therefrom all words presently disposing of the community property and inserting words to the effect that upon the entering of the final decree the parties are entitled to have assigned to them the portions of the community property mentioned in the decree.”

(Wilson

v.

Wilson,

76 Cal.App.2d 119,133 [172 P.2d 568].)

After the remittitur had gone down and on December 5, 1946, another superior judge, acting on an affidavit hereafter discussed, signed and entered a final decree of divorce in the action which made no disposition of the community property, but was entirely silent on that subject. This omission in the final decree having been called to the attention of Judge Schonfeld, on July 22, 1947, Judge Schonfeld signed an amended final decree of divorce expressly awarding the community property to the parties as directed by the order of the court quoted from

Wilson

v.

Wilson, supra.

This amended decree recited that the final decree of December 5, 1946, was entered “by reason of a clerical mistake,” and directed that the amended decree be entered

nunc pro tunc

as of December 5, 1946. From this

nunc pro tunc

judgment defendant appeals.

Defendant argues primarily that any error of the judge who signed the final.decree of December 5, 1946, in failing to dispose of the community property as expressly directed by the District Court of Appeal in

Wilson

v.

Wilson, supra,