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# 66 - Nunc pro tunc -- But it can't be 'nunc' if it wasn't 'tunc'

Monograph # 66

Nunc pro tunc:
IT CAN’T BE “NUNC” IF IT WASN’T “TUNC
Some Thoughts About a Misunderstood Concept

© Lawrence D. Gorin, Attorney at Law, Beaverton, Oregon

Introduction

    Picture the following courtroom scenanio:  The case has been tried, the evidence presented, the arguments made.  The judge then proceeds from the bench to announce the court’s decision and concludes by directing that a judgment document be subsequently  prepared and submitted for judicial signature in accordance with the decision as announced from the bench.  One or other other of the lawyers then proceeds to undertake the task of preparing the judgment document as directed by the court.

    After numerous drafts and revisions of a proposed form of General Judgment of Dissolution of Marriage, numerous discussions with opposing counsel to iron-out the precise wording, repeated explanations to your client as to what is going on, why it is taking so long, and why certain language must be included in the judgment even though not stated by the judge, a judgment document, in final form and approved as to form by opposing counsel, is finally submitted to the judge.  Six weeks or more have elapsed since the time of trial.  The judge signs the judgment document with a dateline referring back to the date of trial, reading as follows:

    “Dated: _____________________, 2009, nunc pro tunc March 26, 2009.”

    For family law practitioners, the foregoing scenario is not unusual.  But how many of us really know what “nunc pro tunc” means and perhaps more importantly what it does not  mean?

    What it means is rather simple: nunc pro tunc means “now for then.”  What it does not mean is a bit more complex.
 
First, what it means and what it does

    Years ago, when the statutes provided for terms of court, judgments and decrees had to be entered into the court’s judgment docket prior to the end of the term of court.  With limited exceptions, a judgment could not be entered “after term.”  “Nunc pro tunc” was the device used after term to cure the problem resulting from a clerk’s negligent failure to have timely entered a judgment or decree that had been previously signed by the judge.  When the problem was brought to the judge’s attention, the judge would sign a new judgment document and direct that it be entered nunc pro tunc, literally “now for then.”  See Quartz Gold Mining Co. v. Patterson, 53 Or 85, 86-87, 96 P2d 551 (1909).

     “[T]he object to be attained by * * * entering an order or judgment nunc pro tunc is to make the record speak the truth.  When a judgment has been actually rendered or an order made by the court which is entitled to be entered of record, but, owing to the misprision of the clerk, has not been so entered, the court may order the entry to be made nunc pro tunc.  But it is not the function of the court to create an order now, which ought to have been passed at a former time.”  Grover v. Hawthorne, 62 Or 65, 75, 116 P 100 (1912).

      As explained in Gillespie v. Kononen, 310 Or 272, 276 n 7, 797 P2d 361 (1990), and again in  Haimovitz and Haimovitz, 163 Or App 244, 247-48, 987 P2d 584 (1999):

      "The purpose of a nunc pro tunc order is to supply an omission in the record of action actually taken but omitted from the record through inadvertence or mistake, or to enter an order that should have been made as a matter of course and as a legal duty.  Wells v. Wells, 262 Or 44, 61, 496 P2d 718 (1972);  Turlay v. Farmers Ins. Exchange, 259 Or 612, 488 P2d 406 (1971).  Such an order is effective only when it records a previously omitted truth---it does not create, but only speaks what has been done." 

    An entry nunc pro tunc is “a manifestation of the inherent power of a court to make its record speak the truth, that is, to correct clerical errors at a later time so that the record reflects what actually occurred at an earlier time.”  State ex rel. Juv. Dept. v. Dreyer, 328 Or 332, 339, 976 P2d 1123 (1999).  It cannot be used as a “means of patching up a defective record by injecting therein something that did not occur.”  Frederick & Nelson v. Bard, 66 Or. 259, 262, 134 P 318 (1913).

    An order nunc pro tunc can be properly used to correct a clerical error or an inadvertent omission of an action that was actually taken.  However, such an order may not be used to retroactively correct a legal error or an omission of an intended action that never actually occurred.  Evans v. Brentmar; 186 Or App 261, 270, 62 P3d 847 (2003).

    The situation is now covered by ORCP 71A, which allows the court to “at any time” correct “clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission.”

Second, what nunc pro tunc does NOT do

     A nunc pro tunc judgment does not “backdate” the effective date of the termination of the parties’ status as married persons.

    Prior to October 23, 1999, ORS 107.115 provided that the parties’ status as being married to one another continued until the expiration of 30 days “from the date of the decree.”  Former ORS 107.115(1).

    ORS 107.115 was amended, effective October 23, 1999, so as to provide that “The marriage relationship is terminated when the court signs the judgment of dissolution of marriage.”  ORS 107.115(2).  [Emphasis supplied.]
 
    For a judgment to be effective, there must be a “judgment document” (defined in ORS 18.005(9) as “a writing in the form provided by ORS 18.038 that incorporates a court’s judgment”).  The judgment document must bear the judge’s signature.  (Obviously, a judge  cannot sign an oral judgment; indeed, there is no such thing as oral judgment.)  In a marital dissolution proceeding, the final and concluding written decision of the court is properly titled as a “General Judgment” (or, to be more descriptive, ”General Judgment of Dissolution of Marriage”).  The judgment document must comply with the form and substance requirements detailed in ORS 18.035 to 18.042.

     A judge’s oral pronouncement or decision from the bench is not a judgment  Barone v. Barone, 207 Or 26, 294 P2d 609 (1956); Wrona and Wrona, 66 Or App 690, 674 P2d 1213 (1984).  Neither is a judge’s written “memorandum opinion” or “letter of decision.”  Warren and Warren, 31 Or App 213, 570 P2d 104 (1977); Schunk and Schunk, 14 Or App 74, 511 P2d 1240 (1973).

    “A judge may change his [or her] mind half a dozen times after announcing [the] decision and take additional testimony * * * which may throw a new light on the problem, * * * and, until a formal judgment or decree is finally entered of record, the case remains in the bosom of the court * * *.”  Barone, 207 Or at 30.

    ORS 107.115(2) is clear and unambiguous: “The marriage relationship is terminated when the court signs the judgment of dissolution of marriage.”  Signing a judgment “nunc” (now) and labeling it as nunc pro tunc (“now for then”) so as to “backdate” it to a prior date (such as the date on which the court orally announced its decision or signed a letter of opinion) is a misuse of the concept of nunc pro tunc.  This is so because no judgment document was previously signed.  As the title to this article makes clear, it can’t be “nunc” if it wasn’t “tunc.”  Neither a judge’s oral decision nor a written opinion constitutes the signing of a judgment.

    In Roeser v. Roeser, 116 Or 108, 239 P 541 (1925), the court noted that:

    “[N]o court can rightly enter an order nunc pro tunc unless the transaction to be recorded actually took place at the prior date.  The record must speak the truth and nothing can be entered ‘nunc’ unless it actually happened ‘tunc’ * * *.”  116 Or at 112.

    In sum, a judge’s decision orally announced from the bench or set forth in the form of a letter does not constitute a judgment.  Accordingly, a judgment document signed at a later time but labeled “nunc pro tunc” back to the date of the trial (or back to the date of the judge’s decision letter) does not do anything “now for then.”

    A nunc pro tunc judgment does not retroactively terminate a pendente lite support award, even if that is what the judge intended.

    While it may be the judge’s intent to not award spousal support and, further, to terminate an existing temporary, i.e., pendente lite, support award (or limited judgment) that had been entered pursuant to ORS 107.095, the judge’s oral decision so directing is of no effect, even if the court directs that the temporary support obligation cease immediately.

    This is so because the judge’s oral decision or written memorandum opinion is not a judgment.  Until a written general judgment document is signed by the judge and entered into the court’s registry, the pendente lite support award (as well as any other pendente lite order) continues to be effective.  Payments falling due under the pendente lite support award continue to accrue and cannot be retroactively terminated, set aside or canceled by the provisions of the general judgment.  Dating the general judgment “nunc pro tunc” will not change the situation.  See Warren and Warren, 31 Or App 213, 570 P2d 104 (1977).

    In Warren, wife had obtained a pendente lite order for $150 per month temporary spousal support, due on the 15th day of each month.  Husband paid the support through December, 1976.  Trial was had on January 5, 1977.  On January 10, 1977, the court rendered its decision, in the form of a memorandum opinion, ruling that no spousal support would be awarded.  The judgment of dissolution of marriage was not entered until March 28, 1977.  The judgment declared that that the prior temporary spousal support order was “canceled and terminated as of January 5, 1977 [the date of trial].”  Wife appealed, contending that she was entitled to the pendente lite support payments that fell due on January 15, February 15 and March 15, and that the court’s March 28 judgment could not terminate the temporary support order nunc pro tunc to January 5.

    The Court of Appeals agreed, holding that the trial judge’s decision as announced through the January 10 memorandum opinion was not an order [nor a judgment].  Even though the trial judge may have intended to terminate support as of January 5, “no order was entered to accomplish such termination.”  The court noted that “each payment under the temporary support order became a judgment after its due date if not paid, ORS 107.095(2), and could not be ‘canceled’ by an order nunc pro tunc * * *.” Warren, 31 Or App at 218.  [Note: ORS 107.095(2) was amended by Or Laws 2003, ch. 576, § 107, so as to provide for temporary support in the form of a “limited judgment.”  The amendment does not alter the proposition of law enunciated in Warren.]

    A nunc pro tunc judgment does not have any effect on the 30-day period for filing a notice of appeal.

    ORS 19.255 requires that a notice of appeal be “served and filed within 30 days after the judgment appealed from is entered in the [trial court’s] register.”  Signing and dating a judgment as nunc pro tunc does not alter or affect the date on which the time for filing a notice of appeal begins to run.

    Restraining orders and injunctions are not effective until reduced to written form.  Labeling the restraining order or injunction as nunc pro tunc does not make the order retroactive.

    Kay v. David Douglas School Dist., 303 Or 574, 738 P2d 1398 (1987), best illustrates the point.  Kay involved an action brought by several high school students seeking an order enjoining the school district from including religious prayers at the 1984 high school graduation ceremony.  A hearing was held on May 4, 1984, prior to the commencement exercises.  At the end of the hearing, the judge rendered an oral decision from the bench.  The judge stated that he was granting the injunctive relief enjoining formal prayer at the school’s upcoming commencement exercises and declared that “that will be the Order of this Court.”  Kay, 303 Or at 576.  The judge then asked plaintiffs’ attorney to prepare an order for the court’s signature.

    In June, 1984, after the graduation ceremonies had already occurred, the court finally signed the formal injunction, memorializing the decision that had been rendered from the bench at the conclusion of the May hearing.  The school district then filed its notice of appeal.  Ultimately, the case was dismissed by the Oregon Supreme Court.  The appellate court held that there was no justiciable controversy existing at the time of the circuit court’s judgment.  Kay, 303 Or at 577.

    The court further explained that the trial court’s May 4th oral decision from the bench was not an order or a judgment.  The court noted that the Oregon Rules of Civil Procedure require that injunctions, as well as judgments, be in writing and signed by the judge, citing ORCP 70A [subsequently repealed and replaced by comparable provisions in ORS chapter 18, effective 1/1/2004], ORCP 79B(2) and 79D.  Kay, 303 Or at 578.

Conclusion

    “Nunc pro tunc” is a device that has been long misunderstood and frequently misused.  To be legally effective, an order, judgment or decree, including a restraining order, must be in writing and must comply with the formalities required by the Oregon Rules of Civil Procedure.

    A statement from the bench, or a judge’s letter of opinion, does not constitute a judgment until reduced to an order, decree or judgment.  See Barone v. Barone, 207 Or at 29.

    “ [A] trial judge’s oral decision is no more than a verbal expression of his [or her] informal opinion at that time.”  Kallstrom v. Kallstrom, 265 Or 481, 484, 509 P2d 1195 (1973).

    Until it is set forth in the form of a formal written order, decree or judgment, a judge’s oral pronouncement from the bench or letter of decision is, arguably, of no legal import.

    [Caveat and practice tip:  As officers of the court (see ORS 9.010), prudence and practicality dictate that lawyers not be totally insensitive to a judge’s verbal decisions and commands.  As is often said: Know your judge.  Practitioners are well advised to use a little common sense when advising clients as to practical significance of a judge’s oral pronouncement.]

    Because the judge’s decision as announced from the bench or as set forth in a letter of opinion is not a judgment, order or decree, submitting a judgment, order or decree days or weeks later and attempting to make it retroactive by adding to the date line the phrase “nunc pro tunc” is legally questionable and procedurally dubious.

    If you want the judge’s decision to go into effect immediately, come to court armed with a proposed form of order or judgment, ready for the judge to sign immediately upon the conclusion of the hearing.  Or, alternatively, get it prepared and signed within a few days after the hearing or trial. 

###

LAWRENCE D. GORIN
Attorney at Law
6700 S.W. 105th Ave., Suite 320
Beaverton, Oregon 97008
Phone:  503-716-8756
E-mail:  LDGorin@pcez.com
http://ldgorin.justia.net/index.html