MCCLINTOCK VS. MCCLINTOCK (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

The issue was whether a district court may use a nunc pro tunc order to change the date of a divorce decree. The court held it may not backdate a decree to a date before the matter was actually adjudicated, and reversed. 122 Nev. at 843, 845-46, 138 P.3d at 514, 515-16. Applying Finley v. Finley, 65 Nev. 113, 118-19, 189 P.2d 334, 336-37 (1948), the court reiterated that a nunc pro tunc amendment is permissible to make the record 'speak the truth as to what was actually determined or done or intended to be determined or done' by the court, and to correct clerical errors or omissions, but may not change a judgment actually rendered to one the court neither rendered nor intended to render. The court distinguished Koester v. Estate of Koester, 101 Nev. 68, 693 P.2d 569 (1985), where a nunc pro tunc order properly set the filing of a decree back to a time before a party's death because 'the facts justifying the entry of a decree were adjudicated during the lifetime of the parties.' Here, although the Tolas divorce petition was uncontested and jointly filed, the divorce decree remained a judicial decision adjudicating the parties' rights and liabilities, and the decree's date determines the accrual and termination of community property. Because the district court took no action as of the filing date and did not adjudicate the Tolas divorce until the judge signed the petition weeks later - after the McClintock marriage ceremony - the court abused its discretion in backdating the decree nunc pro tunc to legitimize the otherwise void McClintock marriage. The court reaffirmed that the McClintock marriage was void under NRS 125.290(2), and that annulment is the proper vehicle to dissolve a void marriage. Williams v. Williams, 120 Nev. 559, 564, 97 P.3d 1124, 1127 (2004).

In plain language

Kelly and Steve McClintock married in September 1993 - but there was a problem. The day before their wedding, Kelly filed a joint divorce petition to end her prior marriage to John Tolas, but a judge did not sign that divorce decree until about three weeks later. So when Kelly married Steve, she was technically still married to Tolas, which made the McClintock marriage void. For about ten years Kelly and Steve believed they were validly married. After they separated and Kelly filed for divorce, Steve discovered the timing problem and counterclaimed for an annulment, arguing their marriage never legally existed. The parties even stipulated the marriage was void, and Steve, relying on that, married someone else (Marla). Kelly then asked the court, in her old Tolas divorce case, to backdate her Tolas divorce decree using a 'nunc pro tunc' order - a device that lets a court correct the record to reflect what was actually done earlier. She wanted the Tolas divorce dated to the day before she married Steve, which would retroactively make the McClintock marriage valid (and undo Steve's later marriage to Marla). The district court agreed and backdated the Tolas decree, reasoning that signing the uncontested petition was just a clerical task. The Nevada Supreme Court reversed. It held that a nunc pro tunc order can only make the record reflect what a court actually did or intended to do at the time - it cannot change the actual date a case was decided. Even though the Tolas divorce was uncontested and simple, entering the divorce decree was a judicial act that determined the parties' rights and fixed when community property stopped accumulating, not a mere clerical function. Because the court did not actually decide the Tolas divorce until the judge signed the petition weeks after the McClintock wedding, backdating it was improper. The McClintock marriage remained void.