Park v. Park

Per curiam.

This is an appeal from a judgment that amended a former judgment of the court rendered in 1968 in a divorce and alimony case. The 1968 judgment had provided: "Except as otherwise herein expressly provided, no modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both parties.”

In 1973 the former wife (appellee) brought an action to modify the alimony payments provided for in the 1968 judgment. Appellant filed responsive pleadings in this action, and he also filed a motion for summary judgment on the ground that under the terms of the 1968 judgment modification was precluded.

Appellee then filed in the original divorce and alimony case a motion to correct the judgment in that case. Her contention was that a paragraph had been omitted from that judgment by typographical error. The omitted paragraph she alleged to be as follows: "This agreement is based upon the present income and financial status of the husband, and the parties hereto further agree that if the same shall be incorporated in any final decree of divorce between the parties, this agreement may thereafter be modified on application of either party as provided by law.”

The trial judge then entered a judgment amending the 1968 judgment by adding the paragraph alleged by the appellee to have been omitted originally. This judgment recites that the trial judge conducted a hearing and heard evidence. However, there is no transcript of evidence in the record, and the only evidence contained in the record are two affidavits of appellee and the attorney who represented her in the divorce case.

This judgment also contains a finding of fact to the effect that the omitted paragraph was omitted inadvertently through a clerical oversight, and that the inclusion of the paragraph had been agreed to by both parties.

The trial judge then concluded that under the authority of Smith v. Smith, 230 Ga. 238 (196 SE2d 437) (1973), appellee was entitled to have the 1968 judgment amended by adding the omitted paragraph.

We do not fault the trial judge for relying on Smith to the extent that he did, and we affirm the judgment. However, we now attempt to clarify our ruling in Smith.

In Smith there was no factual conflict between the parties about the omission. There, both parties testified that the judgment should have shown child-support payments of $20 per week per child, but that the words "per child” were inadvertently omitted. Code Ann. § 81A-160 (g) provides: "Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”

Argued May 14, 1974 — Decided September 24, 1974 Rehearing denied October 17, 1974. Candler, Cox, Andrews & Hansen, E. Lewis Hansen, for appellant. Westmoreland, Hall, McGee & Warner, C. Wilbur Warner, Jr., Edward E. Bates, Jr., for appellee.

In Smith there was an admitted clerical omission, and there was no factual dispute about it. Boockholdt v. Brown, 224 Ga. 737 (164 SE2d 836) (1968), was cited in Smith, and it held that if the error or omission is not admitted by both parties, of if the record does not show such admission by the parties, the court was without authority to amend the judgment pursuant to Code Ann. § 81A-160 (g).

What we are now saying is that this court did not intend Smith to be interpreted as broadly as it seems to have been interpreted. If words, sentences, or paragraphs are omitted from a judgment, and if there is no factual dispute between or among the parties about such error or omission, the judgment may be corrected under Code Ann. § 81A-160 (g). But if there is a factual dispute among or between the parties about the error or omission, the only way for the complaining party to rectify the alleged error or omission is by complaint in equity to set the judgment aside because of the alleged mistake. Code Ann. § 81A-160 (e).

There is no evidence in this record by the appellant to show whether he admitted or denied the alleged omission in the 1968 judgment. The judgment, appealed from recites that the parties agreed to the inclusion of the omitted paragraph. Since there is no evidence in the record to refute this finding by the trial judge the judgment must be affirmed.

Judgment affirmed.

All the Justices concur, except Gunter, J., who dissents, and Ingram, J., who concurs specially.