Opinion
No. 3-062 / 02-1218
Filed May 14, 2003
Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.
Respondent appeals the nunc pro tunc order entered by the district court concerning the parties' decree of dissolution. AFFIRMED AS MODIFIED.
Karen Volz of Ackley, Kopecky and Kingery, Cedar Rapids, for appellant.
Christine Crilley of Crilley Law Office, Cedar Rapids, for appellee.
Heard by Sackett, C.J., and Huitink and Vogel, JJ.
Respondent-appellant, Ronald Heidt, claims the district court's entry of a nunc pro tunc order concerning the parties' decree of dissolution was error and inequitable. We affirm as modified.
The parties' marriage was dissolved in April of 2000. The district court in the decree, made the following statement: "Thus, with the $20,000 in cash which Ron has been holding in his brother's safe deposit box, Ron will be ordered to pay Lynn $13,000 of that cash and he will be awarded $7,000 to balance the property distribution." At the end of the decree under the word "ORDER" the district court did not reiterate its initial direction that Ronald pay Lynn $13,000. About two years passed. Ron was refinancing his home, he sought a release from Lynn for alimony paid. She sent Ron a letter demanding he pay her the $13,000. He refused to pay, and she applied to the district court for a nunc pro tunc order. The same judge who issued the dissolution decree issued the order following a hearing on the application. The court stated:
The Court is guided by In re Marriage of Bird, 332 N.W.2d 123, 125 (Iowa 1983). That case provides that the propriety of a nunc pro tunc order is based on the intent of the trial judge, whether the mistake was an "evident mistake" and the time elapsed from the original judgment to the application. Here, it is quite evident from the express wording of the Decree of Dissolution of Marriage and the Court's review of its own notes that its intent was to order that Ron pay to Lynn $13,000 of the $20,000 he held in the safe deposit box. Further, the mistake was clearly an oversight and qualifies as an evident mistake. The only issue that merits serious consideration is whether the time lapse between the filing of the Decree and Petitioner's application should cause the Court to pause in any action to correct the obvious mistake.
The judge noted that he still had his notes from the dissolution proceeding and had reviewed them. The court concluded "the simple passage of time does not make it inequitable at this time for the Court to enter the Nunc Pro Tunc Order."
Ronald argues the district court decree did not establish a $13,000 judgment against him. He contends the order entered two years ago is not equitable as had he believed he owed the additional $13,000, he may have appealed.
"[A] nunc pro tunc order can be used only to correct obvious errors or to make an order conform to the judge's original intent." Graber v. Iowa Dist. Court, 410 N.W.2d 224, 229 (Iowa 1987). The dual functions of the order are "(1) to "show now what was done then" and (2) to correct an omission where no judgment had been entered due to `ministerial error or oversight by the court.'" In re Marriage of Bird, 332 N.W.2d 123, 124 (Iowa App. 1983) (quoting Wirtanen v. Provin, 293 N.W.2d 252, 255 (Iowa 1980)). "Moreover, the power of the court to make a nunc pro tunc order is inherent and is not lost by the mere lapse of time." Freeman v. Ernst Young, 541 N.W.2d 890, 893 (Iowa 1995).
The district court did not error in entering that part of the nunc pro tunc order ordering payment of $13,000. The payment was provided for in the original decree. However, nothing in the original decree supports the portion of the order which set a date certain for payment and ordered interest after that date. Accordingly, we affirm the nunc pro tunc order except for the portion that ordered payment by July 1, 2003 and set interest at eight percent after that date.
Lynn seeks an award of appellate attorney fees. We award no fees. Costs are taxed to Ronald.