Stork v. Stork
| Decision Date | 13 June 1995 |
| Docket Number | No. 82680,82680 |
| Citation | 898 P.2d 732,1995 OK 61 |
| Parties | Barbara B. STORK, Plaintiff-Appellant, v. Walter J. STORK, Jr., Defendant-Appellee. |
| Court | Oklahoma Supreme Court |
In a post-decree proceeding, brought some 12 years after the marital bond's dissolution, the former wife pressed for nunc pro tunc correction of the date shown in the decree for the commencement of her support alimony payments. The District Court, Tulsa County, Deborah C. Shallcross, trial judge, denied the wife's quest. The Court of Appeals reversed. On certiorari previously granted.
THE COURT OF APPEALS' OPINION IS VACATED AND THE TRIAL COURT'S POST-DECREE REFUSAL "TO CORRECT" THE DIVORCE DECREE NUNC PRO TUNC IS AFFIRMED.
Debbra J. Gottschalk, Tulsa, for appellant.
Richard T. Garren, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, for appellee.
This certiorari presses for our decision two issues: (1) Did the trial court err in refusing to correct nunc pro tunc the divorce decree's stated date for the commencement of support alimony payments? and (2) Is the plaintiff entitled to a counsel-fee award and litigation expenses incurred in this appeal? We answer both questions in the negative.
Walter and Barbara Stork [husband and wife] were divorced by consent decree entered on November 27, 1979, which was first signed by the parties and their counsel and then submitted to the trial judge for his approval. According to its terms, the husband was ordered to pay support alimony in the amount of $900 a month for a total of $135,900, with payments to commence June 15, 1979. At the time the decree was entered the husband was paying temporary alimony (of $400 a month), the obligation directed by an earlier pendente lite order of April 5, 1979.
On March 11, 1992, some 12 years later, the wife moved to modify the divorce decree's support alimony award by invoking the provisions of 43 O.S.1991 § 134(E), 1 which authorize modification of unaccrued alimony installments. She pressed for an increase in and continuation of her alimony payments "for a period of time to be set by the trial judge." She also sought to commute certain unpaid accrued support alimony to judgment (for the period covering December 1991 through February 1992) and to secure a counsel-fee award and costs for legal services to be rendered in that proceeding. The husband moved to dismiss the wife's March 11, 1992 modification quest, arguing that (a) she had failed to allege that there were unaccrued alimony installments and (b) her quest was untimely because the last alimony installment had accrued December 15, 1991. 2
The wife filed an amended motion, 3 pressing the court for nunc pro tunc "correction" of the divorce decree which would postpone the date the alimony payments were to begin and make the final alimony installment fall due after the filing of her March 11, 1992 motion to modify. This change, she urged, would reflect the parties' intent that payment of the support alimony obligation was to commence on December 15, 1979, one month after the consent decree was entered, instead of June 15, 1979, the date stated in the decree. She alleged that the decree was drafted for anticipated entry in June, but because the parties had failed finally to agree on the total amount of permanent alimony until early November 1979, 4 the divorce decree was not entered until later that month (on November 27, 1979). According to the wife, the June 15, 1979 commencement date in the decree is a "typographical error" that should be corrected by a nunc pro tunc order. The amended motion does not press for either arrearages of any unpaid accrued support alimony or counsel fees for services rendered in the case. We cannot tell from this record whether the wife had abandoned her demand for these items. If she has not, the issues, if not already resolved, would remain pending below. The husband advanced several challenges of his own in the answer to the wife's plea. 5
The husband next moved for summary denial of the wife's amended motion. He argued that (a) the relief sought constitutes an untimely delayed attack on the judgment (b) the wife's attempt to correct a mistake is subject to the statutory time bar for modification of judgments, and (c) a nunc pro tunc entry is not available to correct something which was not done. The wife countered that the term nunc pro tunc is used in Oklahoma jurisprudence interchangeably with reformation and that equity's principles which govern reformation of an agreement are equally applicable to a proceeding for nunc pro tunc correction. According to the wife, the divorce decree represents the parties' agreement except for the date that alimony payments were to commence. She urged that the date should be reformed either to correct a mutual mistake of the parties or on the ground of the husband's inequitable conduct. She asserted she is entitled to adduce evidence in support of her request that the alimony award be modified.
The trial court denied the wife's March 11, 1992 quest, ruling that (a) the last alimony installment due under the decree had accrued in December 1991 before her modification plea was filed; (b) the wife's quest for an order nunc pro tunc (or reformation of the agreement) was in effect a request to modify the decree; (c) because the case addresses a divorce decree rather than a contract or deed, the reformation jurisprudence advanced by the wife is inapposite as well as factually distinguishable; (d) the wife's rights ceased to be contractual and merged into the decree; and (e) there are no disputed fact issues relevant to the wife's quest for nunc pro tunc correction of the decree.
On denial of her new-trial motion, 6 the wife appealed. She argued that (a) the trial court erred in giving summary relief to the husband because material fact issues in dispute were left undetermined, and (b) a nunc pro tunc correction is an appropriate and available remedy in domestic relations cases. The husband countered that the wife misinterpreted the trial court's ruling and is attempting to modify or reform a decree in a manner contrary to law. He urged that because the change sought to be made in the decree does not address judicial action that "actually occurred but was not correctly recorded," the wife is not entitled to the nunc pro tunc relief she seeks.
The Court of Appeals reversed and remanded the cause for a hearing on the wife's quest for nunc pro tunc correction. The appellate court held that summary relief was inappropriate because there was a fact question whether the record supports a plea for nunc pro tunc correction. We granted certiorari on the husband's petition and now, for the reasons to be explained, vacate the Court of Appeals' opinion and affirm the trial court's post-decree refusal to correct the divorce decree nunc pro tunc.
Orders nunc pro tunc are designed neither to bring into the record what a court might or should have done nor what it might or should have intended to do. The function of a nunc pro tunc entry is to amend a judgment to make it speak the truth about what actually transpired or was considered and adjudged. 7 Nunc pro tunc relief is limited to supplying inadvertent clerical omission and correcting facial mistakes in recording judicial acts that actually took place. 8 In short, a nunc pro tunc order can and will place of record what was actually decided by the court but was incorrectly recorded. The device may neither be invoked as a vehicle to review a judgment (or to excise legal errors found in it) nor as a means to enter a different judgment. 9
The wife's quest for a nunc pro tunc correction of the divorce decree is to make it reflect the parties' intent that the alimony installments would begin December 15, 1979 (the first month after the divorce), rather than June 15, 1979 (the date stated in the decree). The divorce decree--which had been prepared by the wife's lawyer, was signed by the parties and their counsel and then submitted for the trial judge's approval--apparently failed to embody this element of their agreement. The wife concedes that she knew the date was wrong when she signed the decree and mailed it to her counsel. She assumed that either her lawyer or the trial judge would correct the date. It is undisputed that a copy of the decree was mailed to her shortly after its entry.
This appeal clearly does not present a case of clerical omission in the judgment actually given. The trial judge signed the agreed document presented to him for approval, which had been prepared by the wife's lawyer and bore the signatures of both parties and their counsel. He changed only the date appearing in the first line of the text (from June 8, 1979 to November 27, 1979) to reflect the time the cause came before him for adjudication. 10 The recorded decree speaks the truth as to what was actually decided on November 27, 1979. We hence hold that the wife clearly advanced no legally tenable grounds for nunc pro tunc relief from a decree clause that could be regarded as incorrectly reflecting an actual adjudication.
A judgment whose terms exclude some essential elements of the bargain upon which it was based may be subject either to vacation or modification under the provisions of 12 O.S.1991 § 1031. 12 Unless void upon the face of the judgment roll, no judgment may be modified or vacated under the provisions of 12 O.S.1991 §§ 1031 et seq. if proceedings for this relief are brought after expiration of the applicable time limits prescribed by 12 O.S.1991 §§ 1032 and 1038. 13 If evidence is needed to show lack of some jurisdictional element, a three-year time bar applies. 14
The husband argues that the wife's plea presents nothing more than an untimely § 1031 15...
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