Opinion
B161928.
10-8-2003
LEODIS FORD, Plaintiff and Respondent, v. GWENDOLYN RUNNELLS, Defendant and Appellant.
Rehm & Rogari and Joanna Rehm for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Appellant Gwendolyn Runnells and respondent Leodis Ford are the parents of a daughter, born in 1987. In 1993, pursuant to a settlement agreement, Ford and Runnells agreed that Runnells would have primary physical custody and that Ford would pay $ 328 a month for the childs support. The support order was modified several times.
By 1995, the order was that Ford pay $804 a month in child support. In 1996, Ford moved for a modification.
On April 12, 1996, after a lengthy hearing, Judge Richard Denner orally ordered that Ford pay Runnells $612 per month. Counsel for Runnells was directed to prepare the order, and on May 7, 1996, Judge Denner signed the order so prepared. It specified that "The sum of $612.00 was arrived at by the court using the component of $417.00 child support and $195.00 Child care."
It is worth noting that the Income and Expense Declarations submitted for the April 1996 hearing show that Runnells earned more than Ford did; that Runnellss declaration claimed $43 per month for child care and $347 for the childs education, and that the amount of time the child spent with each parent was very much at issue.
On December, 26, 2001, Ford filed an order to Show Cause for Modification of Child Support. His motion was supported by his declaration, which set forth the cases history and the Bureau of Family/Child Support Operations inconsistent calculation of arrears and persistent efforts to collect what Ford believed were excessive arrears. Ford also attached documents which indicated that appellants cost of child care was perhaps $ 40 per month, not $195. He asked the court to determine arrears and to terminate his obligation to pay $195 per month for child care. He also asked the court to credit amounts he paid for child care after January 1, 1998 to future child support payments, based on the fact the Bureau of Family/Child Support Operations, which had indicated that it would credit him with amounts he had paid for child care unless Runnells provided proof that the child was in child care, had failed to do so. The motion was set for hearing in August 2002, apparently before Judge Aviva Bobb. Our record does not include any information about the ruling on that motion.
On April 26, 2002, before Fords motion was heard, Runnells moved to have the May 7, 1996 order corrected nunc pro tunc to read "The sum of $612.00 was arrived at by the court using the component of $417.00 child support and $195.00 Child care plus the educational costs." In support of the motion, she declared that the transcript of the April 12, 1996 hearing showed that the $612 included educational costs as well as child care costs, that her former attorney drew up the May 7, 1996 order, that she was never afforded an opportunity to review the order before it was filed, and that she did not discover that the order did not conform to the courts decision until she was served with Fords December 2001 OSC.
Ford opposed the motion, arguing, inter alia, that the order was not in error, and that if it was in error, the error was not clerical. He attached his declaration in support of his December 2001 motion to his opposition.
Judge Denner heard Runnellss motion for nunc pro tunc correction of his May 1996 order. On July 31, 2002, he amended the order nunc pro tunc, but not in the manner Runnells requested. Instead, he ruled that the order contained a clerical error in that "the amount of child support ordered . . . should have been a total of $417 per month and not $612 per month as stated in the prior order." Runnells appealed from the nunc pro tunc order.
Runnells argues that the trial court was without jurisdiction to make the correction it made to the May 1996 order, because that order was not in error, at least not in the manner described in the correction. (She continues to argue that the May 1996 order contained the clerical error specified in her motion.) She also argues that retroactive family law orders are an abuse of discretion where they are unconscionable, and that the order was unconscionable for several reasons: there was no notice to her, the order would deprive her daughter of full support, and because the trial court gave no reasons for the order and failed to exercise discretion. Finally, she argues that the nunc pro tunc correction must be wrong because it ignores the statutory mandate that Ford pay half the child-care related to employment.
She also argues that retroactivity was wrong because the nunc pro tunc correction was incorrect, in that the order was already correct. The argument is negated by her contention that the order was incorrect, but in a different way.
We do not reach any of those arguments, because we see a more fundamental problem. A court may correct a judgment nunc pro tunc only when the error is clerical, not when it is judicial. An error is clerical if it was not "the deliberate result of judicial reasoning and determination. [Citation.]" (Young v. Gardner-Denver Co. (1966) 244 Cal.App.2d 915, 919.) "While a clerical error is no longer to be limited to only those made by a clerk [citations], nevertheless, clerical errors do not include those made by the court because of its failure to correctly interpret the law or apply the facts. [Citations.]" (Estate of Eckstrom (1960) 54 Cal.2d 540, 544.)
Here, the order signed by the court was consistent with the order made orally from the bench, after a lengthy hearing. The order itself was drafted by appellants counsel, who was present at the hearing and had ample opportunity to understand the courts order. It was also subject to review by respondents counsel, who had a similar opportunity. We cannot see that when the trial court signed the order it was performing a clerical act. Instead, the act was a judicial one, involving reasoning and determination.
This fact also raises the issue of invited error. We cannot see that, six years later, appellant can complain that the language she chose was in error. "Where a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal. (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.)
Too, at the hearing on the motion for nunc pro tunc correction, the trial court reviewed the evidence originally presented to it and evaluated the meaning of that evidence. The correction was based on that evaluation, again indicating that the correction was of a judicial error, not a clerical one.
Disposition
The order is reversed. Each party to bear its own costs on appeal.
We concur GRIGNON, Acting P.J., MOSK, J.