These are cross-appeals. Defendant appeals from a final decree of divorce; from an order adjudging plaintiff not to be in contempt; and from orders directing that an accounting be taken to determine half the net earnings of plaintiff from his personal services from January 1, 1950, to December 31, 1951, and other gains of his attributable to his energy, ability, and capacity from the operation of his business for the period from January 8, 1951, to July 7, 1953, to determine the community property, if any, appointing an auditor, fixing his fees, and awarding attorney's fees. Plaintiff appeals from part of the order directing that an accounting be taken.
On January 8, 1951, an interlocutory decree was entered granting defendant, as cross-complainant, a divorce from plaintiff. The decree ordered plaintiff to pay defendant for her support and maintenance $150 a month for 12 months only. It ordered plaintiff to pay defendant $39,410, described as community property, in 36 equal monthly installments "without interest, and in addition thereto cross-complainant shall be and is awarded 1/2 of plaintiffs net earnings from his personal services from January 1st, 1950 to December 31, 1951." Defendant appealed from the property provisions of the interlocutory decree. The decree was affirmed. (Berry v. Berry, 117 Cal.App.2d 624 [256 P.2d 646].) The remittitur was filed in the superior court on July 7, 1953.
On May 12, 1954, on application of defendant, two orders to show cause issued: one directing plaintiff to show cause why he should not be adjudged in contempt for failing to pay $660, the balance of the $39,410 he was ordered to pay defendant by the interlocutory decree, and for failing to render an accounting of his net earnings from his personal services for the period from January 1, 1950, to December 31, 1951, and for attorney's fees incident to a hearing on that order; the other directing plaintiff to show cause why he should not render an accounting "to determine the community property, if any, attributable to the personal character, energy, ability and capacity of Mr. Berry, where he has contributed his personal services to the operation of the business" for the period from January 1, 1950, to the entry of the final decree, which had not then been entered, and for attorney's fees and costs incident to that order. On July 7, 1954, plaintiff filed a notice of motion to enter a final decree nunc pro tunc as of January 9, 1952, which date was just one year after
Prior to the hearing of the orders to show cause plaintiff paid defendant the $660. The orders to show cause and the motion were heard together commencing on July 20, 1954. The minutes of July 20, 1954, say, "On the courts own motion the matter of the payment of $660.00 as related to the contempt action is dismissed." Plaintiff withdrew his motion for the entry of a final decree nunc pro tunc as of January 9, 1952, and moved that it be entered as of July 7, 1953, the date the remittitur on the appeal from the interlocutory decree was filed in the superior court.
On July 21, 1954, the court, by minute order, granted plaintiff's motion to enter the final decree nunc pro tunc as of July 7, 1953, and ordered "that an accounting be taken to determine 1/2 the net earnings of the plaintiff for personal services from January 1, 1950, till December 31, 1951, and the gains attributable to the energy, ability and capacity of Mr. Berry from the operation of the business from January 8, 1951, to July 7, 1953, to determine the community property, if any." On July 22, 1954, by minute order, the court granted defendant's motion for an audit of plaintiff's books from January 1, 1950, until July 7, 1953, appointed an auditor "to make the accounting," ordered plaintiff to pay the auditor $1,875, and ordered plaintiff to pay defendant's attorney $1,000 for his services in the proceeding. On July 28, 1954, the final decree was entered as previously ordered. It assigns the property of the parties in accord with the interlocutory decree and contains this provision:
"It is further ordered and adjudged that pursuant to paragraph VIII of said interlocutory judgment, plaintiff pay to defendant one-half of plaintiff's net earnings, if any, from his personal services from January 1, 1950, to December 31, 1951, and it is further ordered that an accounting be had to determine the amount due, if any, under this provision of this judgment." No mention is made in the final decree of that part of the minute order of July 21 requiring plaintiff to account for gains attributable to his energy, ability, and capacity from the operation of his business for the period from January 8, 1951, the date of entry of the interlocutory decree, to July
Appeal of Defendant
Defendant's claim is that it was error to enter the final decree nunc pro tunc in the absence of a showing of mistake, negligence, or inadvertence; that the final decree should have been entered at the time of the determination of the accounting for determination of community property, if any, accumulated after the interlocutory decree. Plaintiff replies that the court properly entered the final decree nunc pro tunc as of the date the remittitur was filed in the superior court, namely, July 7, 1953, and that the period of accounting should have been confined to the period set out in the interlocutory and final decrees, namely, from January 1, 1950, to December 31, 1951. It is not contended the final decree was entered pursuant to the inherent power of a court to antedate a judgment under certain circumstances. (See Mather v. Mather, 22 Cal.2d 713, 719 [140 P.2d 808]; Phillips v. Phillips, 41 Cal.2d 869, 875 [264 P.2d 926]; Corbett v. Corbett, 113 Cal.App. 595, 600 [298 P. 819].)
Civil Code, section 132, provides:
"When one year has expired after the entry of such interlocutory judgment, the court on motion of either party, or upon its own motion, may enter the final judgment granting the divorce ... and such other and further relief as may be necessary to complete disposition of the action, but if any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed."
Civil Code, section 133, provides:
"Whenever either of the parties in a divorce action is, under the law, entitled to a final judgment, but by mistake, negligence or inadvertence the same has not been signed, filed and entered, if no appeal has been taken from the interlocutory judgment ... the court, on the motion of either party thereto or upon its own motion, may cause a final judgment to be signed, dated, filed and entered therein granting the divorce as of the date when the same could have been given or made by the court if applied for."
Nolte v. Nolte, 29 Cal.App. 126 [154 P. 873], and Harris v. Superior Court, 10 Cal.App.2d 586 [52 P.2d 605], held the
Speaking of section 133, the court, in Macedo v. Macedo, supra, 29 Cal.App.2d 387, said (p. 391):
"The act is both curative and remedial, and the retroactive operation of such statute should be given effect unless it disturbs some vested right or impairs the obligation of some contract."
Both parties rely on Harrold v. Harrold, 43 Cal.2d 77 [271 P.2d 489]. In Harrold the interlocutory decree was entered on February 15, 1949. An appeal was taken from the financial provisions of the decree only. The judgment on appeal was "the interlocutory judgment is affirmed, except ... as to that portion relating to a division of the community estate, which is remanded to the trial court with instructions to determine the division of the amount of the community estate as indicated herein." (Harrold v. Harrold, 100 Cal.App.2d 601, 609 [224 P.2d 66].) Following retrial of the issue specified, the court ordered that the final decree be entered on November 1, 1951, the day of the judgment on the retrial. It was entered accordingly. It divided the community property acquired by the parties prior to the date thereof. The plaintiff appealed from that part of the final decree awarding her part of the community property. The Supreme Court said it was held on the prior appeal "that the trial court should have considered the earnings of the defendant accruing prior to the entry of the final decree in determining the community estate." (Harrold v. Harrold, 43 Cal.2d 77, 79 [271 P.2d 489].) One of the contentions on the second appeal was "that under the mandate on the prior appeal the trial court erred in not entering a new interlocutory decree, and in entering the final decree on November 1, 1951." The court declared (p. 83):
"Section 132, as interpreted by the Webster and other cases, provides that the final decree cannot be entered at certain designated times but it does not specify when it may be entered following a reversal on appeal. Here it was entered on the same day as the judgment on retrial of the designated financial issues. Neither section 132 nor the cases construing it expressly prohibit the entry at that time. The
"[P. 84.] We are not concerned in the present case with an appeal from the interlocutory decree as such. That decree, insofar as it ordered the dissolution of the bonds of matrimony, was affirmed and became the law of the case. Any question in connection therewith was and is no longer open, including the right to the final decree as affected by property matters. Such matters, involving items of the additional accounting period and the pro rata division of the community property, were adjudicated on the subsequent hearing as directed by the District Court of Appeal. This appeal from that adjudication does not in any proper sense constitute an appeal as contemplated by the Legislature in enacting section 132 such as would stay the entry of the final decree, since none of the stated purposes of such a stay are here applicable. [Citations.]
"From the foregoing it is apparent that there is no sufficient reason why the trial court should delay the entry of the final decree beyond the express prohibitions of section 132. Furthermore there appears to be good reason for its entry at the time of judgment in the accounting determination. If, as the plaintiff seeks to accomplish, the prohibitions of section 132 are applied to the present appeal in the same manner as to the interlocutory decree heretofore affirmed, the final decree could not be entered until any appeal taken herefrom had been determined or the time for appeal had expired....
"[P. 85.] There is nothing in section 132 of the Civil Code, nor in the cases dealing with the problem, which indicates that under the circumstances here presented a new interlocutory decree should be entered." As we read the Harrold case (43 Cal.2d 77), it holds that a final decree may be entered at any time when one year has expired after the interlocutory decree has become final, and indicates there is good reason for its entry at the time of judgment in an accounting determination after the year has expired. It does not pass on when a final decree may be entered nunc pro tunc.
As we have noted, defendant also appealed from the order which she describes as requiring "an accounting to be taken of the net earnings of plaintiff and cross-defendant from his personal services and other gains attributable to his energy, ability and capacity from the operation of his business for
The order complained of did not direct the payment of any money by plaintiff (cf. Grant v. Superior Court, 106 Cal. 324 [39 P. 604]; Grant v. Los Angeles etc. Ry. Co., 116 Cal. 71 [47 P. 872]), nor did it direct the performance of any act by or against him. It did not finally determine any rights. It required further judicial action. It contemplated a future determination of whether any community property had been acquired in the interim between the interlocutory and the final decrees and, if there was any, how it should be divided. If the order is erroneous, as defendant contends, she may assert it on appeal from the final order after the accounting. (See Clement v. Duncan, 191 Cal. 209, 215 [215 P. 1025].)
Appeal of Plaintiff
The appeal from the order adjudging plaintiff not to be in contempt is dismissed; the appeals of plaintiff and defendant from the order directing an accounting of the gains attributable to the energy, ability and capacity of plaintiff from the operation of his business from January 8, 1951, to July 7, 1953, to determine the community property, if any, are dismissed; the order directing that an accounting be taken to determine half the net earnings of plaintiff from his personal services from January 1, 1950, to December 31, 1951, is affirmed; the final decree is reversed. Plaintiff shall bear defendant's costs on appeal.
Shinn, P.J., and Wood (Parker), J., concurred.