1 Reported in 161 P.2d 326. On or about May 19, 1943, Josephine Nash instituted an action for divorce against her husband, Theodore Nash, in Pierce county, Washington. The defendant did not appear in that action. On June 29, 1943, the court, after hearing testimony and after making findings of fact and conclusions of law, made and entered an interlocutory decree of divorce in favor of the plaintiff, Josephine Nash. This decree awarded the care, custody, and control of the *Page 449 minor son to plaintiff, with the right of visitation at all reasonable times to defendant, and defendant was ordered to pay the sum of twenty dollars per week for the support of the minor until the minor should reach the age of maturity, subject to the further order of the court. A final decree, confirming in all respects the interlocutory decree, was entered December 31, 1943.
June 15, 1944, defendant, Theodore Nash, filed a petition for modification of the above decree. It will be sufficient to say that defendant, in his petition, asked to have the award of twenty dollars per week reduced to thirty dollars per month, and that plaintiff be required to keep the minor son where he would be available to defendant at all reasonable times. Upon the filing of the above petition, a show cause order was issued requiring plaintiff to appear June 23, 1944, and show cause, if any she had, why the petition should not be granted.
The plaintiff signed and filed an affidavit, the effect of which is to deny the allegations of the petition to modify. Defendant filed an answering affidavit.
The above are the pleadings upon which the petition to modify was heard.
June 23, 1944, the court made and entered an order which, omitting the formal parts, is as follows:
"This cause coming on to be heard upon the petition of the defendant herein for an order reducing the amount of alimony provided by the decree herein, and the court having heardtestimony and the arguments of counsel
"It is ordered that the said petition be denied.
"It is further ordered that plaintiff permit the defendant to see the child in accordance with the terms of the decree.
"Dated this June 23, 1944.
ERNEST M. CARD, Judge."
(Italics ours.)
July 5, 1944, defendant served on the attorney for plaintiff a notice of appeal from the above order, and such notice of appeal, with the acceptance of service thereon, was filed the following day. An appeal bond was filed July 11, 1944. *Page 450
Appellant assigns error on the refusal of the trial court to reduce the amount of support money to be paid respondent, and on the refusal of the court to require respondent to reveal to appellant the whereabouts of the minor son.
At the outset of this case we are met with a jurisdictional question relative to the filing of the statement of facts.
The purported statement of facts which we are asked to consider herein bears the following filing marks: "Filed in County Clerk's Office, Oct. 24, 1944, Pierce County, Wash. Kathryn E. Malstrom, County Clerk, by A.D. Eder, Deputy." Immediately under the above filing mark is the following longhand entry: "Nunc pro tunc as of September 9, 1944."
No order of the court appears in the record purporting to authorize the clerk to make such a nunc pro tunc entry. We assume that the clerk must have thought he was authorized to make the above nunc pro tunc entry because of the following entry made by the trial court at the end of its certificate to the statement of facts: "Done in open court this 24th day of October, 1944." Immediately following is this longhand entry: "Nunc pro tunc as of Sept. 9, 1944. Ernest M. Card, Judge."
The certificate of which the last-two-quoted entries are a part is the usual form certificate, wherein the judge certifies that the foregoing statement of facts contains all the evidence and testimony introduced upon the trial, together with all objections and exceptions made and taken to the admission or exclusion of testimony, etc.
The above certificate does not purport to certify when, if ever, the statement was filed. Following that certificate and the quoted entries is this further certificate:
"I further certify that the original of this statement was settled by me and the certificate signed on Sept. 9, 1944, after notice in presence of atty. for appellant in open court, and that since that time said original has been lost or mislaid, and cannot be found.
ERNEST M. CARD, Judge."
The last certificate is not dated.
The above entries made by the trial court do not purport *Page 451 to change the actual filing date of the statement, nor to authorize the clerk to make a nunc pro tunc entry changing the filing date of the statement from October 24 to September 9, 1944, had it desired to do so.
In the case of Penchos v. Ranta, 22 Wn.2d 198,155 P.2d 277, decided January 13, 1945, we discussed quite fully the conditions under which the trial court was authorized to make an effective nunc pro tunc order. In the cited case will be found a reference to other decisions of this court bearing on the question presented.
[1] Clearly, under our decisions, the trial court was without authority in this case, by a nunc pro tunc entry or order, to change the actual filing date of the statement to September 9, 1944.
[2] It may be stated here that attached to the back of the purported statement of facts are two affidavits, one by J. Peter P. Healy and one by A.D. Elder, deputy clerk. These affidavits are not referred to or identified in the statement of facts or the certificate of the court, nor are they contained in the transcript. Not being properly before us, these affidavits cannot be considered.
[3] The order appealed from having been entered on June 23, 1944, it is apparent that the statement of facts was not filed within ninety days thereafter, as provided by rule 9, Rules of Court (18 Wn.2d 9-a). We have repeatedly held that the filing of a statement of facts within the time prescribed by law is jurisdictional, and that we cannot consider a statement not filed within the prescribed time. Tremblay v. Nichols, 187 Wn. 109,59 P.2d 1123.
[4] The record herein shows that the order appealed from recites, among other things, that the trial court heard testimony. This being true, even though we considered appellant's petition in the nature of an affidavit, and even though it was not denied, which in fact it was by the affidavit of respondent, still, in the absence of a statement of facts setting forth the testimony, we could not determine the questions presented in this case; or in other words, we could not say that the trial court erred in refusing to modify the divorce decree. To the contrary, in the absence of a *Page 452 statement of facts, it must be presumed in this case that the court was justified in refusing to modify the decree. Falk v.Rose, 18 Wn.2d 333, 336, 139 P.2d 634.
In view of the record before us, we have no alternative other than to affirm the order as made by the trial court, and we do therefore affirm such order.
MILLARD, STEINERT, ROBINSON, and SIMPSON, JJ., concur.