Taormina v. Taormina

WOOD (Parker), J. Appeal by defendant from an order denying a motion to set aside an interlocutory judgment of divorce or, in the alternative, to correct a clerical mistake in the judgment.

Appellant contends that a valid (interlocutory) judgment was not rendered herein; that the interlocutory judgment which was entered is void; and that if a valid (interlocutory) judgment was rendered, such judgment was the minute order which was entered after the trial.

In October, 1947, Mrs. Taormina commenced an action for divorce. Mr. Taormina filed an answer and cross-complaint. On March 12, 1948, the matter was tried before Judge Still. At the conclusion of the trial, Judge Still announced his decision, and the parties waived findings. On March 23, 1948, a minute order which was dated March 12, 1948, was entered. The minute order states, in part, that plaintiff is granted an interlocutory judgment of divorce and that “the real property . . . and furnishings [are] awarded to plaintiff as her sole and separate property; the real property now subject to a first trust deed in the sum of $5400.00 is to be plaintiff’s, free and clear. Both parties, however, are to join in refinancing said property at the increased amount of $500.00. The interest in the café is awarded to the defendant as his sole and separate property . . . .” Subsequent to March 12, 1948, and prior to April 5, 1948, Judge Still became incapacitated by [103]illness and he remained incapacitated until his death May 6, 1948. On April 5, 1948, the clerk of the court (Mr. Jasper Likes) presented to Judge Miller an interlocutory judgment of divorce which had been prepared by Mrs. Taormina’s attorney. Judge Miller wrote at the lower left side of the judgment, as follows: “Approved Fred Miller Judge April 5, 1948.” The initials “J. L.” appear in the lower left margin of the judgment, opposite the signature of Judge Miller. On April 8, 1948, the interlocutory judgment was entered. That judgment provides, in part, that plaintiff “have as her sole and separate property the following described real property located at 1400 La Grande Terrace, San Pedro, California [legal description] and that defendant (Mr. Taormina) is ordered to make the payments “on said home until paid in full”; and that “an additional loan shall be made on said property not to increase the encumbrance over $6000.00, and both parties hereto are ordered to sign any papers necessary to complete the transaction.” The judgment further provides “that defendant have as his sole and separate property that certain business known as Fisherman’s Wharf Sea Food Grotto . . . On April 9, 1949, at the request of Mrs. Taormina’s attorney, and upon motion of the court, a final judgment of divorce was entered. The final judgment, which refers to the interlocutory judgment that was entered on April 8,1948, provides, in part, that plaintiff is granted a final judgment of divorce; and that “wherein said interlocutory judgment relates to the property of the parties hereto, said property be and the same is hereby assigned in accordance with the terms thereof to the parties therein declared to be entitled thereto. ’ ’