Hansen v. Hansen

PETERS, P. J.

There is no merit to this appeal.

Appellant secured an interlocutory decree of divorce from her husband, the respondent. The interlocutory judgment, entered March 15, 1948, provided that the parents were to have joint custody of the children of the marriage, actual physical custody being given to appellant; that appellant was to receive all the furniture, fixtures, furnishings and personal property located in the former home of the parties;

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that respondent should pay to appellant the sum of $85 a month as support for the two children, and should also pay appellant the sum of $25 a month for a period of 30 months for her support and maintenance. On September 14, 1948, respondent filed a notice of motion, purporting to act under section 473 of the Code of Civil Procedure, to modify the interlocutory decree by adding thereto the condition that, if appellant remarried during the 30-month period, the $25 monthly payments should cease. The affidavit in support of the notice of motion avers that such modification would be in precise accord with the actual ruling made by the trial judge at the time of trial. The motion was opposed by appellant, and was noticed for hearing on September 23, 1948, which was more than six months after the date of entry of the interlocutory decree. On October 1, 1948, a minute order was entered granting the motion to modify, followed on October 26, 1948, by a formal order modifying the interlocutory decree. This order recites that the interlocutory decree contains a “clerical mistake” in that it does not conform with the actual judgment of the court made in March, 1948; that at that time the court expressly directed that the $25 monthly payments should cease upon the remarriage of the wife, while the actual judgment was unconditional; that “to correct said clerical mistake aforesaid . . . and in the interest of justice, said Court on its own motion” modifies the decree to provide that if during the 30-month period the appellant should remarry the $25 monthly payments should cease. The appeal is from this order.

The sole contention of appellant is that the error sought to be corrected was judicial and not clerical, and, therefore, could not be corrected more than six months after the entry of the interlocutory decree.