De Baun v. Michael
| Decision Date | 09 June 1976 |
| Docket Number | No. 75--1778,75--1778 |
| Parties | John De BAUN, Appellant, v. Winifred J. De Baun MICHAEL, Appellee. |
| Court | Florida District Court of Appeals |
Charles R. Holley, Naples, for appellant.
Ray A. Morrissey, Jr., Naples, for appellee.
The issue raised by this appeal is the propriety of an order amending a judgment of dissolution of marriage Nunc pro tunc.
Appellant/husband, who initiated the dissolution proceeding, had requested an adjudication of all rights of the parties in their real, business and personal property. The wife counterclaimed for a special equity in a jointly held trailer park, as well as for alimony and custody of the couple's minor child.
At the final hearing on July 8, 1975, the trial court was informed that the parties had entered into a stipulating which they had not yet reduced to writing. Counsel for the wife then dictated into the record the oral agreement settling the rights of the parties with respect to two jointly held residences and the trailer park, and the issues of custody and child support. It was agreed that the wife would manage the trailer park for compensation, but the amount thereof was not specified. This stipulation was to be incorporated into a 'further agreement' to be submitted to the court as soon as possible. Counsel for the husband stated that the final judgment dissolving the marriage was to be executed that day and the 'other matters' were to be reserved at the court's discretion. Testimony of the parties established their concurrence in the stipulation.
The final order, signed by the judge and approved by both parties, contained a provision reserving jurisdiction to adjudicate all matters relating to property settlement, support, alimony, attorney's fees, costs, and suit money at a later date.
In October 1975 the appellant filed motions requesting relief from the stipulation on various grounds, an accounting of the appellee's management of the trailer park, the production of records relevant thereto, leave to amend his pleadings, and a trial on those matters as to which the court had reserved jurisdiction. Appellee cross-filed a motion for a restraining order.
Arguments were heard on November 10, 1975, but the lower court declined to rule on the motions. Instead, he found that he had not intended to retain jurisdiction to consider these matters, and that the reservation of jurisdiction in the final judgment was the result of a clerical error. Therefore, ostensibly pursuant to Rule 1.540(a), RCP, 1 the court on its own motion then entered an order Nunc pro tunc amending the final judgment of July 8, 1975, by striking the paragraphs reserving jurisdiction and substituting a new paragraph ratifying the stipulation of the parties. This appeal ensued. We reverse.
It has long been settled that the function of an entry Nunc pro tunc is to correct the record to reflect a prior ruling made in fact but defectively recorded. 2 This indeed is the underlying rationale of Rule 1.540(a), Supra. However, where an order does not merely correct clerical errors or omissions, but actually modifies the Substance of a prior ruling or of itself constitutes a ruling not previously made in fact, it should not be given retrospective effect. 3
The record reflects that the parties intended to...
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Wells v. Sec'y, Dep't of Corr.
..."function[ed] . . . to correct the record to reflect a prior ruling made in fact but defectively recorded," De Baun v. Michael, 333 So. 2d 106, 108 (Fla. Dist. Ct. App. 1976). In other words, the amended judgment corrected the record to reflect the intent of the trial court at Wells's sente......
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Riha's Estate, In re, 78-1314
...the record of an order Actually made, which was either entered incorrectly in the court records or not entered at all. DeBaun v. Michael, 333 So.2d 106 (Fla. 2d DCA 1976). However, when the court wholly omits an order or wishes to change it, the new order cannot be entered nunc pro tunc. Ni......
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McKibbin v. Fujarek
...in excess of the power conferred upon it by the rule. Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla.1979); De Baun v. Michael, 333 So.2d 106 (Fla. 2nd DCA 1976). By allowing the amended notice of voluntary dismissal to eliminate the words "with prejudice" the court obviously change......
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Hunter v. Hunter
...as to jurisdiction, jurisdiction continued through the present. See Ryan v. Ryan, 430 So.2d 511 (Fla. 1st DCA 1983); De Baun v. Michael, 333 So.2d 106 (Fla. 2d DCA 1976). Additionally, the trial court was incorrect in including in the final judgment a nunc pro tunc order finding that it had......