Opinion
NO. 2012-CA-001243-MR
06-07-2013
LINDA ANN DAVIS APPELLANT v. MATTHEW DAVIS, now deceased; AND KAREN LYNN DAVIS, EXECUTRIX APPELLEES
BRIEF FOR APPELLANT: Gordon T. Germain Monticello, Kentucky BRIEF FOR APPELLEES: John F. Vincent Ashland, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE
ACTION NO. 03-CI-00178
OPINION
AFFIRMING
BEFORE: COMBS, MOORE, AND TAYLOR, JUDGES. COMBS, JUDGE: Linda Ann Davis appeals from orders of the Wayne Family Court denying her motion to revive the divorce action against her deceased, former husband, Matthew Davis, and her motion for entry of a decree of dissolution nunc pro tunc. We affirm.
Linda Ann Davis and Matthew Davis were married in 1981 and separated on January 1, 2002. On May 23, 2003, Linda filed a petition for dissolution of the marriage. In her petition, Linda recited that the marital property and debt had been divided to the satisfaction of the parties and that all non-marital property had been duly restored. Matthew waived service and entered his appearance on May 23, 2003.
The parties had also executed a separation agreement - although it is not mentioned in the petition for dissolution. This separation agreement was filed with the court on May 23, 2003. Among other provisions, Matthew agreed to maintain a life insurance policy with Monumental Life Insurance Company for Linda's benefit. Contrary to the provisions of Kentucky Revised Statute[s] (KRS) 403.180, the decree of dissolution -- entered into the record just a few days later -- did not incorporate or otherwise comment upon the terms of the parties' separation agreement.
Matthew, a resident of Greenup County, died on July 7, 2011. He was survived by his wife, Karen Davis. Karen was the designated beneficiary of Matthew's life insurance policy with Monumental, and she made a claim for the proceeds of the policy. Citing the terms of the parties' separation agreement, Linda also made a claim for the proceeds.
As Executrix of the estate, Karen commenced a civil action in Greenup Circuit Court to resolve the controversy. In February 2012, Linda intervened in the action and also filed a third-party complaint against Matthew's estate. In her third- party complaint, Linda alleged that Matthew had violated the terms of the parties' separation agreement and had perpetrated a fraud upon her by designating Karen as beneficiary of the Monumental life insurance policy. The provisions of the 2003 dissolution decree were referred to by the parties as potentially relevant in the disposition of the Greenup Circuit Court action.
On June 4, 2012, Linda filed a motion in the 2003 divorce action naming the late Matthew Davis as respondent. Referring to the provisions of KRS 403.180 pertaining to separation agreements, Linda requested the family court to render an order nunc pro tunc providing that the parties' separation agreement was not unconscionable and incorporating its terms into the decree of dissolution as of 2003. Karen as Executrix of the estate objected to the motion both in her representative capacity and individually during a special appearance in Wayne Family Court. On June 22, 2012, the family court denied Linda's motion.
On June 28, 2012, Linda filed a motion in the family court to revive the dissolution action against Matthew's estate. She requested that the family court substitute Karen, Executrix of the estate, as respondent in the action. Through a special appearance in the proceedings, Karen objected strenuously to the motion. The Wayne Family Court denied the motion on July 10, 2012. This appeal followed.
As we reiterated in Rhodes v. Pederson, 229 S.W.3d 62 (Ky. App. 2007), there is no law in Kentucky to support the revival of a divorce action after the death of one of the parties. Linda argues that the family court retains continuing jurisdiction to enforce its prior orders and possesses inherent authority to order a dissolution decree entered nunc pro tunc. See Munsey v. Munsey, 303 S.W.2d 257 (Ky. 1957).
In Munsey, the parties had obtained a divorce decree and later sought an annulment of the decree. The judge signed the order annulling the decree, but the clerk never recorded the petition and the order annulling the divorce. The papers were either lost or misplaced. Believing that she was still his wife, Flonnie Munsey lived with G.L. Munsey until he died intestate approximately six months after the court had signed the order annulling the divorce. In ruling in favor of Flonnie Munsey as the legal widow of G.L. Munsey, the court recited language that is highly relevant to the case before us concerning proper use of a nunc pro tunc order:
The argument is made also that the order should have been entered nunc pro tunc. The power to enter judgments and orders nunc pro tunc is inherent in the courts and is not dependent for its existence upon any statute. . . . One of the classes of cases in which a judgment nunc pro tunc may properly be entered occurs where a judgment has been pronounced by the trial court, but has not been entered of record through some accident or through negligence of the clerk. The court rendering the judgment has the power to order the judgment so rendered to be entered nunc pro tunc, provided that there is satisfactory evidence, not only of its rendition, but of its terms also. In this jurisdiction, we have followed the strict rule that only by some entry or memorandum of record can the rendition of a judgment be proved.[Citations omitted.] (Emphases added.)
In the case before us, the petition for dissolution was wholly silent about the existence of a separation agreement. Instead, the petition simply advised the court that the parties had "divided all marital property and marital debts to the satisfaction of both parties, and all nonmarital property has been restored to the respective party." Petition at 2. Although the separation agreement was filed in the record, the family court was never called upon to evaluate its terms. The court did not incorporate its provisions into the decree of dissolution and did not identify the agreement. KRS 403.180 at §4 mandatorily set forth as follows:
(a) Unless the separation agreement provides to the contrary, its terms shall be set forth verbatim or incorporated by reference in the decree of dissolution of legal separation and the parties shall be ordered to perform them; or
(b) If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement and state that the court has found the terms not unconscionable. (Emphases added.)
The purpose of an order entered nunc pro tunc is to record evidence of judicial action that has already been taken. Carroll v. Carroll, 338 S.W.2d 694 (Ky. 1960). The authority of the court to make such orders does not extend to correcting judicial error or supplying an omission or absence of judicial action. See Benton v. King, 199 Ky. 307, 250 S.W. 1002 (1923). It may not be used to make the record speak what it did not speak but arguably could have or should have articulated. As noted long ago by Benton v. King, 199 Ky. 307, 250 S.W. 1002, 1003 (1923):
The office of a judgment nunc pro tunc is to record some fact of the court done at a former time which was not carried into the record, and the power of the court to make such entries is restricted to placing to record evidence of judicial action which has been actually taken. It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.
Linda's motion for an order nunc pro tunc sought to alter the original decree of dissolution to include findings and conclusions relative to the parties' separation agreement that were never made by the court in 2003. In her brief, Linda argues that the relative economic positions of the parties at that time meant that the terms of the separation agreement were not unconscionable and that the agreement should have been incorporated into the court's decree as a matter of course. Nevertheless, the nunc pro tunc rule cannot be used as a substitution for an order that the court might or should have made. In its 2003 decree, the family court made no determination with respect to the parties' separation agreement. It was wholly silent on that point. The parties did not attempt to have the omission corrected prior to Matthew's death. The rule does not allow the court to correct that omission after his death.
The family court did not err by denying the motion to revive the dissolution action. It correctly determined that under these circumstances, it had no authority to enter a decree of dissolution nunc pro tunc.
Accordingly, the orders of the Wayne Family Court are affirmed. We DENY as moot the motion of Karen Davis, Executrix of the estate of Matthew Davis, to dismiss this appeal.
ALL CONCUR. BRIEF FOR APPELLANT: Gordon T. Germain
Monticello, Kentucky
BRIEF FOR APPELLEES: John F. Vincent
Ashland, Kentucky