Wilson v. Wilson

WOOD (Fred B.), J.

July 22, 1947, a final decree was entered

nunc pro tunc

as of December 5, 1946, granting the plaintiff a divorce upon the ground of extreme cruelty, award

[674]

ing her permanent alimony for support and maintenance, and dividing the community property between the parties. That decree was affirmed in

Wilson

v.

Wilson,

88 Cal.App.2d 382 [198 P.2d 916].

*

In dividing the community property the decree awarded each party an undivided one-half interest in certain improved real property and granted plaintiff “the free, uninterrupted and sole right to the use, occupancy and control of all of said real property and all the improvements thereon, including that awarded and assigned to Francis A. Wilson [defendant], so long as she shall choose to so use, occupy or control the same.”

May 25, 1949, plaintiff filed a notice of motion for an order to make the final decree more definite and certain and to clarify the decree, particularly the portion thereof which we have quoted. In her supporting affidavit, plaintiff alleged that the intent of the court in awarding the use of this property could only be executed by an order compelling the defendant to pay the real property taxes which were due and payable thereon as of December 5, 1946, the date of the decree, setting forth the amounts of accrued taxes for certain years.

May 23, 1950, an order was entered granting plaintiff’s motion to clarify the final decree in respect to certain property taxes. Defendant appealed from that order. Subse-. quently and heretofore a motion by plaintiff to dismiss the appeal upon the asserted ground that the order is nonappealable was denied by this court.

The main question upon this appeal is whether or not the asserted error of omission in the final decree was a clerical error. If a clerical error, the court had power to supply the omission; otherwise, not. “ The test for determining whether a judicial error is a clerical one laid down by the Supreme Court in