¶1(specially concurring).
¶2I would arrive at the same result in this cause as that expressed in the majority opinion, but on different grounds.
¶3In essence the majority opinion holds that the record of the judgment and decree entered in the trial court on May S, 1948 should not be corrected nunc pro tunc on the premise that “the only question before this court is whether there is sufficient evidence of judicial action by the trial court in connection with the hearing of plaintiff’s petition for divorce in May, 1948 showing that the court approved all of the terms of the ‘Stipulation’.”
¶4In support thereof, the majority opinion states, “The trial judge who heard defendant’s ‘Motion to Correct Nunc Pro Tunc’ found the evidence insufficient to authorize the correction of the judgment.” Factually, the conclusion of the trial judge, in this respect, was stated in the following language:
“The request that the decree be corrected to show that the Court’s approval of the Stipulation filed herein is denied for the reason that there is no paper of record, entry, minute or notation of record in the file to show or indicate that said stipulation was approved by- the Court" (Emphasis supplied.)
¶5However, in the majority opinion it is conceded that adversary counsel, for the respective parties litigant, on May 5, 1948 the date of the hearing of the action for divorce, executed and filed a Memorandum for Clerk reading as follows:
“In The Circuit Court City of St. Louis
“Muriel Aronberg, Plaintiff
vs.
Lawrence Aronberg, Defendant “No. 17970 Room 16 May 5, 1948
“Memorandum For Clerk
“Cause heard; decree of divorce for plaintiff; custody of child Jerome Milton Aronberg awarded to plaintiff with right of visitation to defendant as per stipulation filed; $75 per month for support of said child; $125 per month alimony as per stipulation filed; stipulation presented to court and approved.
“/s/ Melvin L. Hertzman and “Sam Levin,
“Attorneys for Plaintiff
“Susman, Mayer & Wilier,
“Attorneys for Defendant”
¶6In the majority opinion, referring to such memorandum, it was said :
“We do not mean to hold that this memorandum may not be considered in a nunc pro tunc proceeding.”
¶7The majority view quotes an excerpt from the opinion of Burgess, J., in Ross v. Kansas City, Ft. S. & M. Railway Co., 141 Mo. 390, 391, 395, 38 S.W. 926, 42 S.W. 957 (quoted with approval in Collier v. Catherine Lead Co., 208 Mo. 246, 106 S.W. 971, and Doerschuk v. Locke, 330 Mo. 819, 51 S.W.2d 62, 64) to the effect that in order to justify a correction of its record by nunc pro tunc proceedings:
“ … the record must in some way show, either from the judge’s minutes, the clerk’s entries, or some paper in the cause, the facts authorizing such entries. No such entries can be made *685from the memory of the judge, nor on parol proof derived from other sources.” (Emphasis supplied.)
¶8What are the “facts authorizing such entries” as shown by the papers in this cause ? Adversary counsel for the respective parties litigant, pursuant to rules 10 and 11 of the Circuit Court, requiring the filing of a memorandum “when an order is granted or a proceeding had,” filed such memorandum, signed by counsel for both parties on May 5, 1948 solemnly stating among other matters,
“ … $125 per month alimony as per stipulation filed; stipulation presented to coitrt and approved."
¶9In the majority opinion it was stated:
“This memorandum cannot be used to contradict the actual minute entry made by the court which shows the action actually taken by the court.”
¶10With this, I cannot agree. If such memorandum may “be considered in a nunc pro tunc proceeding” as held in the majority opinion, it should be considered for all purposes. I believe that great weight should be accorded such a document filed in the cause, by adversary counsel, contemporaneously with the conclusion of the hearing of the case.
¶11In opposition to this Memorandum for Clerk executed by adverse counsel for both litigants the majority opinion lays great stress on the abbreviated, unpunctuated, script notation entered in the “Judge’s Docket Book”. Such notation in the “Judge’s Docket Book” was called to the attention of this court in defendant’s Statement Brief and Argument and was referred to in oral argument of this case. I agree that such notation may be considered in this case. In determining the facts as to whether the trial court did approve such stipulation the question is whether such notation should be given such weight as to overcome the positive, unqualified statements of adverse counsel in the above quoted memorandum in which it was unequivocally stated:
“ … stipulation presented to court and approved.”
¶12The entry made in abbreviated, unpunc-tuated script in the docket book read:
“Decree for pltf custody of child $75.00 per mo for support of child $125.00 per mo alimony Visitation as per stip filed.”
¶13Certainly there is no positive notation contained in such docket book entry to the effect that the trial judge disapproved the stipulation.
¶14The stipulation and agreement provided for Seventy-five ($75.00) Dollars for the support and maintenance of said minor child. The trial judge must have found such amount fair and just for he noted “$75.00 per mo. for support of child” in his docket book. With reference to the amount payable to the wife, the stipulation provided “Defendant shall pay to plaintiff the amount of One Hundred Twenty-five ($125.00) Dollars per month as and for her alimony.” The trial court must have found that said sum was just (i. e. free from fraud, collusion or compulsion and fair to the wife) or the trial court would not have allowed such amount nor made the notation “$125.00 per mo alimony” in his docket book. In North v. North, 339 Mo. 1226, 100 S.W.2d 582, 587, the Supreme Court said: “Where such contracts are free from fraud, collusion or compulsion, and are fair to the wife, the courts have no right to disregard them.”
¶15After the words “Decree for pltf”, four matters, properly the subject of a decree and judgment, are alluded to in this note, 1) custody of child, 2) support money for child, 3) monthly alimony and 4) visitation. Following these is the entry “as per stip filed.” How can it be said that the decree, which made provisions identical with those of the stipulation with respect to the four matters properly the subject of a decree and judgment (i. e. within the jurisdiction of the Court), indicated anything other than that the Court “approved” the stipulation? Did the trial court mean to put *686these in the conjunctive and intend to make a note that the four items should be incorporated in the decree “all as per stipulation filed”?
¶16In the case of Luedde v. Luedde, 240 Mo. App. 69, 211 S.W.2d 513, loc. cit. 517-518, this court stated:
“On the contrary, it conclusively appears that the Court intended to and did approve and adopt the stipulation of the parties as and for its judgment. This is shown by the Court’s approval and adoption of the language: ‘all in accordance with stipulation’.” (Emphasis supplied.)
¶17Did the words and abbreviations “as per stip filed” refer to all four items, viz., the custody of the child, his support, the alimony for the wife and visitation privileges ? In the form written I believe it is difficult to determine, from such docket book entry alone, exactly what was intended by the trial court. In my view it is just as reasonable to say that the phrase “as per stip filed” referred to all four items, including that for the alimony here in litigation, as it is to say, as set forth in the majority opinion, that:
“It is our opinion that the only part of the ‘Stipulation’ adopted or approved by the trial judge, according to his minute entry, is the part which pertains to the visitation privileges accorded defendant. The only reference the court made in its minute entry in connection with the stipulation had to do with the visitation privileges.” (Emphasis supplied.)
¶18In so stating, the majority opinion tacitly concedes that the entry “as per stip filed” indicates the trial court’s adoption and approval of at least a part of the stipulation.
¶19In my opinion the clear, unequivocal language of the memorandum for clerk, signed by adversary counsel and filed of record May 5, 1948 in part, “$125 per month alimony as per stipulation filed; stipulation presented to 'court and approved.”, in contrast with the above quoted note in the judge’s docket book, is a sufficient record and paper filed in the cause to warrant and demand a correction of the judgment record, nunc pro tunc, “to show that the court approved the contract or stipulation of settlement” as prayed in defendant’s motion.
¶20If it be thus determined that the judgment record should have indicated an approval of the stipulation of April 30, 1948, this court is squarely faced with the task of deciding whether the trial court erred in refusing to correct the formal judgment and decree by deletion as prayed by defendant. In ruling on this question below, Judge McMillian stated in the “conclusion” of his memorandum opinion:
“The allowance in question is statutory alimony under Section 452.070, R.S.Mo.1949 V.A.M.S. Therefore, it is of no consequence that the stipulation had not contained the limitation ‘until the further order of court.’ Likewise, the terms ‘in default of payment of any installment as and for alimony, execution to issue therefor’ is mere incident to the Court’s judgment awarding alimony.
“Defendant’s motion to correct record nunc pro tunc by deleting words ‘until further order of court’ and the words ‘in default of the payment of said costs or any installments awarded as aforesaid, as and for alimony,’ is hereby denied and overruled in that both phrases are incidental to statutory judgments under Section 452.070, R.S.Mo.1949, V.A.M.S.”
¶21In this I believe the conclusion and order of such trial judge is correct and should be affirmed upon the authority of, and for the reasons stated in the opinion of this court in the case of, Alverson v. Alverson, Mo.App., 249 S.W.2d 472, 473.
¶22In the Alverson case the background situation was almost identical with that presented in the case at bar. There alimony was sought in the petition, and the stipulation provided that “party defendant *687is to pay to party plaintiff, as and for alimony, the sum of One Hundred Dollars ($100.00) each month commencing … In Alverson, by other provisions of the stipulation, “plaintiff agreed to release defendant from any and all obligations she had contracted during marriage” (loe. cit. 473). Evidently the office of the St. Louis Circuit Court used the same form in entering the judgments in Aronberg and in Alverson, since the decree entered in the Alverson case was similar, and excepting for dates, almost in haec verba, to that in the instant case except that, because there were no children involved in the Alverson case, no provisions relating to custody and support of a minor child were contained in the Alverson Decree. In Alverson, as in Aronberg, plaintiff filed a motion to modify the decree seeking an increase in alimony. In Alverson, as in Aronberg, defendant countered with a motion to correct the record, nunc pro tunc, the exact wording of the decree sought to be deleted in Alverson being “until the further order of the court”. In the Alverson case the trial court sustained, defendant’s motion, ordering, nunc pro tunc, the deletion of the words, “until the further order of the court.” On special appeal granted in the Alverson case, the trial court was reversed by this court.
¶23In a well reasoned opinion in the Alver-son case, supra, written by the late Judge Bennick, in which Judges Ruddy and Anderson concurred, this court stated,
“In drawing their stipulation the parties themselves had identified the sum which defendant was to pay as being ‘as and for alimony’, and the court employed such identical language in writing its decree, which, as we have pointed out, was within the scope of its statutory authority. Likewise the judge and clerk had referred to the allowance as ‘alimony’ in their respective minute entries at the time of the trial and disposition of the case. ' Furthermore the court was not content with merely ordering that payments be made ‘as and for alimony’, but what is more conclusive of its intention to enter a decree for statutory alimony is the fact that it then went on to provide, without objection from the parties, that in default of the payment of any of the installments, ‘execution issue therefor’. If defendant’s obligation had been meant to depend upon contract, plaintiff’s remedy upon default would have besn by action on the contract, and not by execution, which could only be sued out upon a judgment previously obtained.
“It consequently follows that the allowance in question must be construed as having been one of statutory alimony, which carried with it the power of the court to make such alterations from time to time upon application of either party as might be proper under the circumstances. … It was therefore of no consequence that the stipulation itself had not contained the limitation, ‘until the further order of the court’, since the court’s reserved authority followed by operation of law, and not by consent of the parties to the case. Tysdal v. Tysdal, Mo.App., 235 S.W.2d 124.” 249 S.W.2d loc. cit. 476.
¶24For the reasons herein stated, I am of the opinion that the decree of the trial court, rendered under date of May 5, 1948 should be amended, nunc pro tunc, in such manner as to indicate that the stipulation executed on April 30, 1948, and filed in this cause on May 5, 1948, was approved by the trial court on May 5, 1948, and that the order of the trial court denying and overruling defendant’s motion to correct record by deletion, should be affirmed.
¶25Motion for rehearing or to transfer to Supreme Court denied; JOHN C. CASEY, Special Judge, dissenting.