MARY A. TIKALSKY v. JOHN TIKALSKY

Minnesota Supreme Court1926-04-01No. No. 25,156

166 Minn. 468

Summary · law.co

Holding. The trial court properly entered judgment of divorce nunc pro tunc as of September 1920, even though the parties' death intervened before formal entry, because the court had completed all judicial determinations and directed entry of the judgment while both parties were living; the judgment is affirmed.

A couple married in 1919, and the wife filed for a limited divorce with alimony in 1919 while the husband filed a cross-complaint seeking an absolute divorce. The trial court in 1920 found in the husband's favor, made findings of fact supporting the divorce, and issued conclusions of law and an order directing that judgment be entered. However, due to oversight, the judgment was never formally entered in the record. The husband died in 1924, leaving his estate to his children from a prior marriage. When the wife later claimed a surviving spouse's share of his estate, the probate court proceedings revealed the missing judgment. The trial court then allowed the estate's administrator and the beneficiaries under the will to petition for entry of the divorce judgment nunc pro tunc (retroactively) as of September 1920, which was granted.

The wife appealed, arguing that a divorce suit abates upon the death of either party and that a judgment cannot be entered after death unless the person was clearly entitled to it while both parties lived. The court acknowledged this general rule but held that Minnesota law permits nunc pro tunc entry of a divorce judgment when the trial court had already resolved all factual and legal issues and directed entry of judgment, and when the sole remaining task was the ministerial act of recording it. Since the trial court had completed all judicial work and only clerical neglect prevented proper entry, the retroactive entry of the judgment was proper and necessary to clarify property rights.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a divorce judgment may be entered retroactively after the death of one party
Whether the trial court's completion of judicial determinations and direction to enter judgment permits nunc pro tunc entry despite subsequent death
Whether ministerial clerical neglect in failing to formally record a directed judgment affects its validity

Procedural posture

The wife appealed from a district court order granting the estate's petition to enter a divorce judgment nunc pro tunc approximately four years after the husband's death and the original trial court's decision.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Taylor, C.

The plaintiff and defendant were married in January, 1919. Both had been previously married and were well along in years. In December, 1919, plaintiff brought this suit asking for a limited divorce from defendant and for an allowance for maintenance out of his property. Defendant interposed a cross-complaint asking for an absolute divorce from plaintiff. In July, 1920, the court made findings of factto the effect that the charges made by plaintiff against defendant were not true and that the charges made by defendant against plaintiff were true, and that plaintiff had received certain sums from defendant and was not entitled to any further allowance of alimony out of his estate. Upon these findings, the court made the following conclusions of law and order for judgment:

“That plaintiff is not entitled to any relief in this action and that defendant is entitled to judgment adjudging and decreeing that the bonds of matrimony now and heretofore existing between plaintiff and defendant be forever dissolved and awarding to defendant an absolute divorce from plaintiff. Let judgment be entered herein accordingly.”

Plaintifl; made a motion for a new trial which was denied August 12, 1920. She served a notice of appeal, but failed to perfect the appeal and it was dismissed. Defendant died testate in June, 1924, and by his will gave his property to his children by a former marriage. Thereafter it was discovered that judgment had not been entered in the divorce suit, and in December, 1924, plaintiff filed in the probate court a claim to the share of defendant’s estate given to a surviving wife by the laws of descent. In February, 1925, the special administrator of defendant’s estate and the devisees under his will petitioned the district court to be substituted as defendants in the divorce suit and for the entry of judgment therein nunc pro tunc as of September 15, 1920. The court granted the petition and in June, 1925, judgment of divorce was entered as of the date of September 15, 1920. Plaintiff appealed from the judgment.

It is true, as claimed by plaintiff, that a suit for divorce abates at the death of either party as the marriage relation sought to be dissolved no longer exists. And it is also true that a judgment cannot thereafter be entered therein nunc pro tunc, unless the complainant was clearly entitled to have such judgment entered while both parties were living. Strickland v. Strickland, 80 Ark. 451, 97 S. W. 659; Estate of Seiler, 164 Cal. 181, 128 Pac. 334, Ann. Cas. 1914B, 1093; Danforth v. Danforth, 111 Ill. 236 (243); McCurley v. Mc-Curley, 60 Md. 185, 45 Am. Rep. 717; Wilson v. Wilson, 73 Mich. 620, 41 N. W. 817; Heck v. Bailey, 204 Mich. 54, 169 N. W. 940; Kimball v. Kimball, 44 N. H. 122, 82 Am. Dec. 194; Dunham v. Dunham, 82 N. J. Eq. 395, 89 Atl. 281; Matter of Crandall, 196 N. Y. 127, 89 N. E. 578, 134 Am. St. 830, 17 Ann. Cas. 817, and note.

In some of the cases statements are made to the effect that no judgment can be entered after the death of one of the parties, as no decree of divorce can be granted after the marital status has been terminated by death, and other matters are involved only as incidental to such a decree.

Several courts, however, hold that where the trial court had determined the questions of fact and directed the entry of a judgment of divorce and the complainant was entitled to have it entered while both parties were living, it may be entered nunc pro tunc as of a date within the lifetime of the deceased, at the instance of parties whose rights are affected thereby, for the purpose of determining and fixing property rights or legalizing proceedings taken in the belief that the parties were divorced. Zahorka v. Geith, 129 Wis. 498, 109 N. W. 552; In re Cook, 77 Cal. 220, 17 Pac. 923, 19 Pac. 431, 1 L. R. A. 567, 11 Am. St. 267; Id. 83 Cal. 415, 23 Pac. 392; Rush v. Rush, 97 Tenn. 279, 37 S. W. 13; Newton v. Newton, 166 Mich. 421, 132 N. W. 91; Barth’s Admr. v. Barth, 102 Ky. 56, 42 S. W. 1116, 80 Am. St. 335; Kinney v. Tri-State Tel. Co. (Tex. Civ. App.) 201 S. W. 1180; 1 Freeman, Judg. (5 ed.) 255, § 135; 1 C. J. 208. See also Bell v. Bell, 181 U. S. 175, 21 Sup. Ct. 551, 45 L. ed. 804; Mock v. Chaney, 36 Colo. 60, 87 Pac. 538; Moster v. Moster, 53 Mo. 326; Chester v. Graves, 159 Ky. 244, 166 S. W. 998, Ann. Cas. 1915D, 678; Craig v. Craig, 110 Kan. 13, 202 Pac. 594; Id. 112 Kan. 472, 212 Pac. 72.

The question is hardly an open one in this state for the view last stated was adopted by this court in Schneider v. Grimes, 156 Minn. 25, 193 N. W. 942. And although the question presented in Gunderson v. Gunderson, 163 Minn. 236, 203 N. W. 786, was different from that here presented, it may be noted that that case held that a decree awarding alimony could be modified after the death of the defendant at the instance of the heirs.

In the present case the court had determined all the issues presented and directed that judgment divorcing the parties be entered. The judicial act was complete. All that remained to be done was for the clerk to enter the judgment in the judgment book as directed. Through the unexplained neglect of some one this was not done.

We are of opinion and hold that the court acted correctly in causing the judgment to be entered nunc pro- tunc, and the judgment so entered is affirmed.