Sunday, July 23, 2006
Husband and Wife filed a joint petition for divorce on September 2nd. On September 3rd, Wife remarried. The judge in the divorce action signed the divorce decree about three weeks later. Ten years later, when Wife filed for divorce from her second husband, he discovered that she was still legally married to her first husband when they wed and counterclaimed for annulment. Wife then filed a motion to amend the prior divorce decree to reflect at September 2nd divorce date. In order to legitimatize her second marriage, and relying on the good faith belief of all the parties involved at the time that the divorce was effective, the trial court granted the motion.
On appeal, the Supreme Court of Nevada reversed, holding that "Because a nunc pro tunc order can only reflect that which was actually done, we conclude that the district court cannot use a nunc pro tunc order to change the date of a divorce decree to a date before the date when the matter was adjudicated." The court commented that, "Although the divorce petition ... was uncontested and jointly filed, the divorce decree is nevertheless a decision adjudicating the parties' rights and liabilities.... The district court's decision to approve a petition for divorce is not equivalent to the exercise of a clerical duty that the court may later amend at its discretion."
McClintock v. McClintock, 122 Nev. Adv. Rep. 73 (July 20, 2006)
Opinion on web (last visited July 23, 2006 bgf)