RODELA VS. RODELA (CHILD CUSTODY)

Key holdings

Practitioner summary

In a divorce action, neither the pleadings nor the proposed decree apprised the district judge of a settlement provision granting the husband visitation of a minor child he had neither sired nor adopted, but who was the issue of the wife's prior marriage. The district judge later, on his own motion, deleted that provision nunc pro tunc under NRCP 60(a), reasoning that his prior approval was an oversight or omission rather than an exercise of judicial discretion. The court held that the failure of a judge to be aware of the provisions of a marital settlement agreement he has approved does not qualify as a clerical mistake arising from oversight or omission within the meaning of NRCP 60(a), and is therefore not subject to correction nunc pro tunc. See Alamo Irrigation Co. v. United States, 81 Nev. 390, 404 P.2d 5 (1965); Smith v. Epperson, 72 Nev. 66, 294 P.2d 362 (1956); cf. State ex rel. Friedman v. Dist. Ct., 81 Nev. 131, 399 P.2d 632 (1965); Finley v. Finley, 65 Nev. 113, 189 P.2d 334 (1948). Accordingly, the court set aside the nunc pro tunc order and remanded with instructions to rule upon the merits of the mother's pending motion to modify the agreement and approving decree to delete the visitation provision.

In plain language

In this divorce case, the parties' marital settlement agreement gave the husband, Dale, the right to visit a child who was not his - the child was born during the wife Carole's earlier marriage, and Dale had neither fathered nor adopted the child. The district judge approved the agreement and the divorce decree that incorporated it, apparently without focusing on that visitation provision. Later, the same judge, acting on his own, deleted the visitation provision 'nunc pro tunc' - a legal term meaning a correction made now but treated as if entered back on the original date. The judge reasoned that his earlier approval of the visitation term could not really have been a considered exercise of his judgment, but was instead an oversight, and so he treated it as a clerical mistake he could fix at any time under the rule allowing correction of clerical errors (NRCP 60(a)). The Nevada Supreme Court disagreed. It held that a judge's failure to be aware of the terms of a settlement agreement that he actually approved is not the kind of clerical mistake, oversight, or omission that the clerical-error rule allows to be fixed after the fact. In other words, overlooking a substantive provision the judge signed off on is not a mere clerical slip. The court set aside the nunc pro tunc order and sent the case back to the district court with instructions to rule on the merits of the mother's pending motion - a proper motion asking the court to modify the agreement and decree to remove Dale's visitation rights. The point was procedural: the visitation term had to be addressed through a real decision on the mother's motion, not erased through the clerical-error shortcut.