Preece v. Preece

• Decision Date: 01 May 1984
• Docket Number: No. 18295,18295
• Citation: 682 P.2d 298
• Parties: Lynn R. PREECE, Plaintiff and Appellant, v. Mark V. PREECE, Defendant and Respondent.
• Court: Utah Supreme Court

Page 298

682 P.2d 298

Lynn R. PREECE, Plaintiff and Appellant, v. Mark V. PREECE, Defendant and Respondent.

No. 18295.

Supreme Court of Utah.

May 1, 1984.

Pete N. Vlahos, Ogden, for plaintiff and appellant.

Lyle W. Hillyard, Logan, for defendant and respondent.

HOWE, Justice:

The appellant, Lynn R. Preece, seeks nullification of a decree of divorce which was signed and entered nunc pro tunc after the death of her husband, Mark V. Preece.

Appellant was the plaintiff in a divorce action against her husband. Each was represented by an attorney. At the conclusion of the trial on October 27, 1981 the court announced it would grant a decree of divorce and set forth the terms to be included in it: The statutory three-month interlocutory period before the decree became final would be waived and the decree would "become final upon signing." In November, appellant's attorney prepared and submitted proposed findings of fact and conclusions of law to Mr. Preece's counsel. The latter, by letter to the court, asked the court to strike a paragraph awarding attorney's fees to appellant because he did not think it was a part of the determination of the court as previously announced. He made no formal motion and took no other exception. By letter he informed appellant's attorney of this action and that he would "leave it up to the court as to whether [the paragraph would be] left in or not." He also mentioned that Mr. Preece had instructed him to file an appeal.

Before the court had signed the decree, Mr. Preece died of a heart attack. Thereafter, his counsel petitioned the court for a nunc pro tunc order entering the divorce decree. After submission of briefs and argument at a hearing, the court entered the nunc pro tunc order making the divorce effective as of the trial date of October 27, 1981. Appellant brings this appeal because her status as either a divorced spouse or a surviving spouse determines her interest in the estate of Mr. Preece and affects the interest in his estate of his children by a previous marriage.

A motion nunc pro tunc is used to make the record speak the truth; it may not be used to correct the court's failure to speak. See generally 24 Am.Jur.2d, Divorce and Separation, § 422 (1966); 6A Moore's Federal Practice, § 58.08 (2d Ed.1983). In other words, the function of a nunc pro tunc order is not to make an order now for then, but to enter now for then an order previously made. Wallace v. Wallace, 214 Kan. 344, 520 P.2d 1221 (1974). Cases involving application of the nunc pro tunc concept can generally be divided into either (1) those which correct ministerial or clerical error, or (2) those which remedy a situation created by the death of a party after submission of a case but before judgment. Barros v. Barros, 26 Wash.App. 363, 613 P.2d 547 (1980).

Insofar as the correction of clerical errors is concerned, we have long recognized the power of courts, under proper circumstances and where the interests of justice require, to do an act upon one date and make it effective as of a prior date so that the record accurately reflects that which took place. Dairy Distributors, Inc. v. Local 976, etc., 16 Utah 2d 85, 396 P.2d 47 (1964); Cook v. Gardner, 14 Utah 2d 193, 381 P.2d 78 (1963); Kettner v. Snow, 13 Utah 2d 382, 375 P.2d 28 (1962). However, we have not been faced with the situation where the court announces that it is granting a divorce and will waive the interlocutory period but then one party dies before the decree is signed. The question then arises: May the decree be signed and entered nunc pro tunc as of a date prior to the death?

Our own cases are not in point on this issue. Daly v. Daly, Utah, 533 P.2d 884 (1975) dealt with the death of a party after the decree was signed, but during the three-month interlocutory period contained in the decree. In Glad v. Glad, Utah, 567 P.2d 160 (1977) a formal motion which set forth an objection to a signed divorce decree was held to have suspended proceedings, preventing the decree from becoming final until the court disposed of the objection. While these cases do not treat the entry of orders nunc pro tunc, they exemplify our views of the finality of divorce decrees.

In other jurisdictions, courts have held in some cases that there should be no entry of a decree of divorce nunc pro tunc to take effect as of a date prior to the death of a party, since the death terminates the marriage and abates the divorce proceeding. See Heil v. Rogers, 329 S.W.2d 388 (Mo.App.1959) where the divorce case was under advisement at the time of the death of one of the parties and the cause of action was held not to survive the death; Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105 (1944) where no decree had been signed by the chancellor, filed for record, or recorded, and no definite pronouncement had been made as to what the final decree would contain; Wilson v. Wilson, 73 Mich. 620, 41 N.W. 817 (1889) where the court determined that there can be no divorce decree after death has separated the parties. See also Annot., 19 A.L.R.3d 648, § 7 at 659 (1968), and other cases cited therein; 3 W. Nelson Divorce & Annulment, § 28.04 (1945). See generally Annot., 104 A.L.R. 654 (1936); Annot., 3 A.L.R. 1403 (1919).

However, in other cases courts have held that a judgment nunc pro tunc could be entered to take effect prior to the death of a party because the successful party was clearly entitled to the judgment when both parties were living. See Berkenfield v. Jacobs, Fla., 83 So.2d 265 (1955), where a party died after the final decree of divorce was signed but before it was recorded and the divorce was made effective by an order nunc pro tunc; Cameron v. Cameron, 105 W.Va. 621, 143 S.E. 349 (1928) where the court saw no logical reason why an order actually pronounced during the life of the parties could not be entered after the death of one of them; Tikalsky v. Tikalsky, 166 Minn. 468, 208 N.W. 180 (1926) where before the death of a husband the trial court had resolved all factual questions and had ordered the entry of judgment in his favor, but no judgment was actually entered, and thereafter a nunc pro tunc judgment was entered. See also Annot., 19 A.L.R.3d 648, § 7 at 660 (1968) and other cases cited therein; A. Clark, Law of Domestic Relations, Divorce Procedure, § 13.2 at 384 (1968).

We agree with those jurisdictions which have not allowed entry of a decree nunc pro tunc because the death of one of the parties before final judgment terminates the marriage relationship and abates the divorce proceeding. The determinative factor which prevents the use of nunc pro tunc in the instant case is the lack of signature on a decree and the attendant ability of the court to alter the terms of the decree until it was signed and entered. Additionally, the dispute over the substantive issue of attorney fees (in spite of respondent's counsel's indication that he would leave its resolution to the trial court) points to a lack of finality. Because the judge's oral announcement was not reduced to a signed written decree prior to the death of Mr. Preece, a previously made order did not exist and therefore did not afford the court the right to employ the nunc pro tunc device.

However, even if the oral announcement were considered a previous order, nunc pro tunc was misapplied here. A nunc pro tunc order should be the reflection of a previously made ruling. The court had orally announced that the decree was "to become final upon signing." By making it effective as of the trial date rather than upon signing, the court altered its previous ruling. It did not merely reflect its previous ruling. Even though it did not otherwise deviate from its oral announcement, this alteration of the effective date was nonetheless a substantial departure from the earlier announcement. Nunc pro tunc should not be used in that circumstance.

We remand the case to the district court with instructions to vacate the decree and dismiss the action. Each party is to bear his or her own costs.

HALL, C.J., and OAKS and DURHAM, JJ., concur.

STEWART, Justice (dissenting):

I submit that the majority opinion is based on a technicality that wholly ignores the substance of what both parties intended in this litigation and the substance of the law. I fail to see any persuasive reason to support the result reached by the majority. The appellant wanted a divorce; she filed for a divorce; all critical issues were adjudicated; and the trial judge resolved all essential factual issues and orally granted a divorce. Counsel prepared findings of fact and conclusions of law which are uncontested as far as the significant issues are concerned. Before the trial judge could sign the findings of fact and conclusions of law, the defendant unexpectedly died. The majority nullifies the entire legal proceeding on the sterile formalism that the plaintiff cannot be divorced from a dead man. Thus, the decree, and the property division made in the decree, are held to be void. As a consequence, the appellant inherits a widow's share of the estate of a man she had divorced for all practical purposes, when, in my view, she should receive only what the trial court awarded in the property settlement, which is all she ever asked from the court. I see no reason why the fortuitous event of death just prior to the signing of findings and conclusions and after a full adjudication in law or equity should produce such a windfall.

The trial court, in its memorandum decision, stated that "[i]n this case the Court ordered that the divorce was final and absolute on the day of the hearing." Since the interlocutory period had been waived, only two acts, both ministerial in nature, remained to complete the divorce--the signing of the findings of fact and...