In Re Marriage of Shayman

[650]

Opinion

THE COURT.

Appellant, Mary Shayman, filed a complaint for divorce against Milton Shayman, who answered and cross-complained. The cause was tried, and written findings of fact and conclusions of law were filed by the court on May 26, 1971. That document set forth the rights of the parties with regard to items of community property, child custody, support, attorneys’ fees and costs. The section entitled Conclusions of Law contained provisions for the disposition of these matters in the same form that they would ordinarily appear in a judgment, and the document concluded with the statement “Let judgment be entered accordingly.”

On June 17, 1971, Milton Shayman passed away. No judgment had been entered. Subsequently, Milton Shayman’s attorney in the above proceedings, for reasons which do not appear in the record, filed a noticed motion to have an interlocutory judgment entered

nunc pro tunc

to the date of filing the findings and conclusions. This motion was granted, the trial court relying in part upon section 669 of the Code of Civil Procedure, which provides that, if a party dies after trial and submission of his case to a judge sitting without a jury for decision, the court may nevertheless render judgment thereon.

Mary Shayman appeals, contending that the trial court had no jurisdiction to proceed as it did.

It is clear that the court had rendered its decision and the substance of its judgment prior to the death of Milton Shayman.

Rule 232 of the California Rules of Court provides that, where written findings and conclusions have been requested, the court is to submit findings, conclusions and a proposed judgment to the parties, who have a specified period of time in which to file objections. If no objection is filed within that period, the court is to sign and file what then constitutes its findings, conclusions and judgment. Judgment is then to be entered immediately pursuant to section 664 of the Code of Civil Procedure. Those rules applicable to proceedings under the Family Law Act specify that an interlocutory judgment of dissolution is to be rendered in a particular form —that set forth in rule 1287 of the California Rules of Court.