ALLEN VS. ALLEN (DIVORCE)

Key holdings

Practitioner summary

The parties' 1939 Nevada divorce decree approved, adopted, and confirmed a written support agreement and directed the parties to comply with it. In 1949 the husband moved for a nunc pro tunc order incorporating the agreement verbatim into the decree to accomplish a merger under the standard announced by the Oklahoma Supreme Court (Allen v. Allen, 256 P.2d 449), thereby defeating the wife's ability to enforce the support obligation by a contract action in Oklahoma. The trial court denied the motion without opinion. The court declined to resolve the merger issue. It held the motion addressed the trial court's discretion and would not be reversed absent abuse. Quoting the California Supreme Court in Carter v. J. W. Silver Trucking Co., 4 Cal.2d 198, 47 P.2d 733, a nunc pro tunc order 'should be made [as] the circumstances of the particular case ... [and] justice may require.' While a court has inherent power to correct clerical errors so the record conforms to what it actually decided - relief available as of right where the error is clearly apparent (Silva v. District Court, 57 Nev. 468, 68 P.2d 422) - the husband sought instead a determination of what the court intended and a substantive reshaping of the decree to accomplish merger in the form prescribed by Oklahoma law. That went well beyond Silva. Given the lapse of ten years and the circumstances, the denial was not an abuse of discretion.

In plain language

In 1939 a Nevada court granted the parties a divorce and, in doing so, approved and adopted a written agreement (dated August 4, 1939) under which the husband would make monthly support payments to the wife. Ten years later, in 1949, the husband asked the court to enter a 'nunc pro tunc' order - a correction that treats a change as if it had been made on the original date - to rewrite the 1939 decree so the agreement would be fully absorbed ('merged') into it. His goal was practical: after years of litigation between the parties in Oklahoma, merging the agreement into the Nevada decree (using the standard Oklahoma courts had laid down) would cut off his former wife's ability to sue on the contract in Oklahoma to collect support, leaving her only the remedies available under the Nevada decree. The trial court denied his motion without explanation, and he appealed. The Nevada Supreme Court declined to decide the merger question. It treated the request as one committed to the trial court's discretion. A court has inherent power to fix clerical errors so the record matches what it actually decided, and doing so is a matter of right when the error is obvious. But the husband was not asking to correct an obvious clerical mistake - he was asking the court to decide what it had intended years earlier and then reshape the decree to reach a particular legal result under Oklahoma law. That goes far beyond a clerical correction. After ten years and in these circumstances, the court held the denial was not an abuse of discretion and affirmed.