Pierson v. Canupp

ALMA WILSON, Justice,

dissenting.

The order of July 11, 1984, was not a final order. The third finding of the July 11, 1984, order states:

If plaintiff fails to file the proper pleadings in the Superior Court in and for Pima County, State of Arizona, within thirty (30) days of this order, then the Court would consider, upon proper application, the Writ of Habeaus Corpus previously filed by the defendant and heretofore stayed by this Court. [Emphasis added.]

The order states:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Writ of Habeas Corpus previously filed in this matter by the defendant is stayed an additional thirty (30) days; it is further ordered that in the event the plaintiff fails to file the appropriate pleadings within said thirty (30) day period, then this Court will consider upon proper application and notice to the adverse party the Writ of Habeas Corpus. [Emphasis added.]

Because the trial court put the consideration of the writ in the future in both of the above quoted paragraphs, the writ cannot be said to have issued. Since it had not yet issued, the above order cannot be considered a final order pursuant to 12 O.S. 1981, § 953. The July 11, 1984, order *554merely informs the parties that if a certain action is not taken, then the trial court will consider a writ of habeas corpus. “A judicial announcement of what judgment might be rendered under specified circumstances yet to occur — per verba de futuro — is not a judgment.” Lawrence v. Cleveland County Home Loan Auth., 626 P.2d 314, 316 (Okla.1981). “In cases tried without a jury the pronouncement by the court from the bench is its judgment if it is in a form which indicates a present intent to adjudicate the pending matter.” Miller v. Miller, 664 P.2d 1032, 1034 (Okla.1983).

On October 24, 1984, this Court allowed the appellant to go back before the trial court with an “application for correction and clarification of record nunc pro tunc,” but with this Court submitting the questions. The questions and answers, which were submitted on November 6, 1984, were as follows:

1. Was a writ of habeas corpus in fact granted on April 3,1984, as recited in the written memorial of April 13, 1984? Answer: Yes.
2. Did the trial court rule on April 3, 1984, as recited in the April 13, 1984 written memorial, that it did not have jurisdiction over the children? Answer: Yes.
3. Did the trial court modify in its July 11, 1984 order overruling motions to reconsider the prior April 3, 1984 ruling with respect to the habeas corpus relief and, if so, in what particulars? Answer: No.
4. Did the trial court, in its July 11, 1984 order overruling motions to reconsider, modify its April 3,1984 ruling that it did not have jurisdiction over the children? Answer: No.
5. Was the petition for adoption without consent of the father dismissed for lack of jurisdiction on August 31, 1984? Answer: Yes.

An order nunc pro tunc “may not be made to supply a judicial omission or an error of the court, or to show what the court might or should have decided, or intended to decide, as distinguished from what it actually did decide.” Stevens Expert Cleaners & Dyers v. Stevens, 267 P.2d 998, 1001 (Okla.1954), quoting 30 Am. Jur. 876, “Judgments”, § 109. “The function of a nunc pro tunc entry is to reconstruct and put on record the true memorial of what did in fact transpire in litigation.” (Emphasis in original.) McCullough v. Safeway Stores, Inc. 626 P.2d 1332, 1334 (Okla.1981). The order clearly reveals that the writ of habeas corpus was to be considered in the future. In spite of the language in the “Order for Clarification and Correction of Record Nunc Pro Tunc,” the April 13,1984, written memorial states:

The Court further orders that the Writ of Habeas Corpus herein be continued for thirty (30) days for review of plaintiffs compliance with this order. Further that in the event the plaintiff fails or refuses to return to the State of Arizona within thirty (30) days from this date, then the Writ of Habeas Corpus prayed for by the defendant is granted and custody of Heidi M. Canupp and Hans Diet-rick Canupp are placed with the defendant, Otis Canupp. [Emphasis added.]

Both the April 3, 1984, order and the July 11, 1984, order clearly reveal that the writ of habeas corpus was left for future consideration, and because the writ never issued, no final order exists as to the habeas corpus.

I dissent from the majority view that this Court may confer authority on the trial court to review and impose, by a subsequent nunc pro tunc order, finality on its own order when a clear reading of such order defies such a construction. The trial court is without jurisdiction to construe its own order in this manner, and such a construction is therefore erroneous. I respectfully submit that because this Court has directed a post judgment inquiry and given a trial court the power of ultimate judicial review over the intent and finality of its own order, the bench and the bar need take note and govern itself by this new judicial fiat that overrules, at least by implication, Lawrence, and Points v. Oklahoma Publishing Co., 672 P.2d 1146 (Okla.1983).