In Re Marriage of Mercado

Opinion

ASHBY, J.

This is an appeal from an order making a nunc pro tunc correction in a prior interlocutory judgment of dissolution of marriage. The parties, Nita Mercado (hereinafter Wife) and Robert Mercado

[703]

(hereinafter Husband), entered into a property settlement agreement which was introduced into evidence at the hearing before Judge Pro Tempore Samuel Laidig on June 10, 1970, at which the interlocutory judgment of dissolution of marriage was granted. Counsel for Wife was to prepare the decree and submit it to counsel for Husband for approval as to form and substance, and then to the court for signature and filing. The property settlement agreement and the interlocutory judgment based thereon provided for division of property including the family residence in San Marino, which was to be transferred to Wife subject to certain provisions for the payment by Wife to Husband of $11,250, representing Husband’s interest in the property. Wife’s obligation to pay Husband $11,250 was to be due “upon the occurrence of the first of the following events:

“(i) The remarriage of the Wife; (ii) The sale of said real property by the Wife; (iii) The establishment by the Wife of a permanent place of residence other than said real property; (iv) The reaching of majority by both of the minor children of the parties hereto,

and

the establishment of a separate place of residence or marriage or both of said minor children.” (Italics added.) Custody of the parties’ two minor children, daughters then aged 17 and 15, was given to Wife. Judgment was entered June 26, 1970.

In July 1976 Husband filed notice of motion for a correction of the judgment. In support of his motion, Husband declared that he learned for the first time in June 1976 that both the written property settlement agreement and the judgment based thereon did not correctly reflect the agreement of the parties. The actual agreement of the parties was that Wife’s obligation to pay Husband $11,250 would become due upon the reaching of majority of both daughters

or

the marriage or establishment of a separate residence by both daughters. Notwithstanding declarations in the property settlement agreement that each party had been represented by counsel, had read the agreement and had it fully explained to them by counsel and was fully aware of its contents and legal effect, Husband had no specific recall of reading the document and relied upon representations from his attorney that the written property settlement agreement accurately reflected the terms of the parties’ agreement. The motion was also supported by a declaration from Husband’s attorney, that it was his recollection Husband was to receive the money after the children reached the age of majority and he had no recollection how the phrase “and the establishment of a separate place of residence or