FINLEY VS. FINLEY (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

The plaintiff wife appealed from a 'Modified Decree of Divorce' entered May 3, 1947, contending the district court lacked jurisdiction of the defendant husband's March 26, 1947 motion to modify because the operative decree - an amended decree of January 6, 1947, entered nunc pro tunc as of August 1, 1946, by consent - placed the motion outside the six-month window of District Court Rule XLV as measured from the backdated date. The court (Wines, D.J.) held the nunc pro tunc direction void: the office of a nunc pro tunc order is to make the record speak the truth concerning acts actually done (Talbot v. Mack, 41 Nev. 245, 255); it cannot supply omitted action, correct judicial error, or change or enlarge the judgment actually rendered (Wright v. Curry; Barkelew v. Barkelew; State ex rel. Kruletz v. District Court). The January 6 amendment enlarged the original decree - converting contractual rights into decretal rights enforceable by contempt and as a judgment - so there was no basis for backdating, and the parties' consent could not confer jurisdiction to enter it nunc pro tunc (B. F. Hastings & Co. v. Burning Moscow Co., 2 Nev. 93; Jasper v. Jewkes, 50 Nev. 153; Maitia v. Allied L. & L. S. Co.). The court had jurisdiction under Rule XLV to entertain the January 6 motion to amend; the six-month period ran from January 6, 1947, so the husband's March 26, 1947 motion was timely (Public Act No. 56, Stats. 1947, ch. 162, having not yet been approved). The modified decree was affirmed, each party bearing its own costs. Finley was later overruled on other grounds by Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964) (see Mack v. Estate of Mack, 125 Nev. 80, 206 P.3d 98 (2009)).

In plain language

A wife obtained a divorce in Clark County on August 1, 1946. The original decree simply 'approved' the couple's property settlement agreement. Five months later, at the wife's request and with the husband's written consent, the court entered an 'amended decree' that wrote the agreement's terms - support of $1,350 per month, later becoming 36% of the husband's earnings with a $450 floor and $1,350 ceiling - directly into the decree, and ordered the amendment entered 'nunc pro tunc' (backdated) as of August 1, 1946. When the husband later moved to modify, the wife argued the court had lost jurisdiction: measured from the backdated August 1946 date, more than six months had passed. The Nevada Supreme Court held the backdating void. A nunc pro tunc order exists only to make the record speak the truth about what the court actually did earlier - it cannot be used to supply action the court never took, to enlarge a judgment, or to change it into something the court never rendered. Since the January 1947 amendment added real new rights (contempt enforcement and judgment-creditor status), it could not be backdated, and the parties' consent could not give the court jurisdiction to do what it otherwise lacked power to do. The six-month window therefore ran from January 6, 1947, making the husband's March 1947 motion timely, and the modified decree was affirmed. (The decision was later overruled on other grounds by Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964).)