Becker v. KingBecker v. King
After two days of testimony in a final hearing in a suit for dissolution of marriage both sides rested and made final arguments. Many issues relating to the dissolution, alimony, child support, life insurance and property ownership and division were involved. Both counsel agreed that it would be proper at that time for the court to make a finding as to the dissolution of the marriage by a partial final judgment and to take the other issues under advisement. On January 22, 1973, the trial judge signed a “partial final judgmеnt” dissolving the marriage, giving the wife custody of the two children with visitation rights “to be subsequently determined by the order of this Court“, continuing in force a prior temporary support order and reserving jurisdiction over all other matters in the complaint, including attorneys’ fees and costs “for subsequent determination by this Court“. On March 5, 1973, the trial judge and both trial counsel held a conference and further discussed the issues remaining for decision. On March 7, 1973, the trial judge made final decisions аs to those matters and communicated them to the attorneys for both parties requesting that a formal written final judgment be prepared and submitted for his signature. This was not done. The husband-father died on March 24, 1973. On May 24, 1973, the trial judge entered a partial final judgment of dissolution of marriage nunc pro tunc as of January 22, 1973, and again on June 5, 1973, entered an amended partial final judgment of dissolution of marriage nunc pro tunc as of January 22, 1973. The judgment entered on May 24, 1973, аccurately set forth the decisions orally announced by the trial judge on March 5th and 7th, 1973, except the written judgment omitted to specify the source of funds to make certain ordered payments. The amended judgment enterеd on June 5, 1973, specified the sources of those funds. The administratrix C.T.A. of the estate of the deceased husband-father filed notice of appeal on June 23, 1973.
The essence of this appeal is the contention that bеcause the husband died before the two nunc pro tunc final judgments were signed, those judgments are invalid, especially because the court had previously dissolved the marriage and also because
The English Statute of 17 Charles II, Chapter 8 (made perpetual by 1 JAC. II, Chapter 17, Section 5) specifically providеs that “in all actions personal, real or mixed, the death of either party between the verdict and the judgment shall not hereafter be alleged for error ...“. That statute is of force in this state by virtue of
Once a court of record has jurisdiction of the cause and the parties and all the evidence has been presented, the cause is then ripe for judgment and the court is not thereafter deprived, by the death of a party, of its inherent power to rendеr a decision or judgment and may do so in the interest of justice by a judgment nunc pro tunc as of the time of submission.2
A purely divorce suit is sometimes made an exception to this general principle of law permitting rendition and entry of a nunc pro tunc judgment after death because, it is said, the death itself has already terminated the marriage relationship.3 If so, the reason for this exception does not apply in this case because the marriаge was not ended by death but by the written partial final judgment of January 22, 1973, and the matters involved in the appealed judgment relate only to matters collateral to, and made necessary and appropriate for legal decision by, the adjudication of dissolution.
The time for appeal under F.A.R. Rule 3.2, subd. b is calculated from the rendition of the judgment appealed and “rendition” is defined in F.A.R. Rule 1.3 to mean the judgment has been reduced to writing, signed and rеcorded or filed. However essential a filed writing is to an appeal, a judgment may be valid although not in such final form as is required for appeal purposes. Aside from its definition in the Florida Appellate Rules, rendition of а judgment generally refers to the judicial act of the court in giving, returning, pronouncing, or announcing, orally or in writing, its conclusions and decision on the matter submitted to it for adjudication,4 and is distinct from the signing of a subsequent
Nunc pro tunc means “now for then” and when applied to the entry of a legal order or judgment it normally does not refer to a new or fresh (de novo) decision, as when a decision is mаde after the death of a party, but relates to a ruling or action actually previously made or done but concerning which for some reason the record thereof is defective or omitted.10 The later record making does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act.
Therefore, the first nunc pro tunc judgment was not only a proper action of the cоurt to prevent the court‘s delay in entering a written judgment until after the husband‘s death from prejudicing the just rights of the wife and children by abatement but it was also a proper use of a nunc pro tunc order to establish a final and apрealable written record of the court‘s previous decision orally rendered. To correct the form of the first nunc pro tunc judgment was also a proper use of the second nunc pro tunc — “to make the record speak the truth“.
The cause having been submitted for final decision, the parties were not entitled to be heard further, and, accordingly, the court was not required to give them notice before announcing its original oral judgmеnt nor before signing the record-making first nunc pro tunc judgment nor before executing the second or record-correcting nunc pro tunc judgment.11 The burden was not on the trial judge but on the successors or representatives of the deceased, or other party desiring such action, to file a suggestion of death and motion for substitution and notice of hearing under R.C.P. Rule 1.260. Although appellant, as administratrix, has never complied with this rule, we denied a motion tо dismiss this appeal on that ground in the interest of due process and fair play. We have also considered this as a direct attack upon the judgments below avoiding, without decision, questions relating to collateral attаck.12 However, in this appeal the administratrix, who has been accorded the privy status of a proper successor of the decedent, should not be heard to complain of her own default in not becoming a nоminal party and in not receiving notice and hearing to which the decedent would not, if alive, have been entitled.
Although counsel of record for both parties agreed for the court to enter the first partial final judgment оf January
Except perhaps as to summary judgments,14 trial courts regularly enter “partial“, “split” or “divisible” final judgments, and Sistrunk does not hold trial courts have no jurisdiction to make a piecemeal final decision in complex cases where it is in the interest of the litigants. In domestic relation cases it is not uncommon or unauthorized practice to enter a judgment dissolving the marriage and to later determine the other ancillary issues. See Klarish v. Klarish, 296 So.2d 497 (3 D.C.A.Fla. 1974).
As security for the support of his minor children the trial judge is empowered to require a divorced father maintain life insurance on his life for the benefit of his children at least for such time as he is responsible for their support. Bosem v. Bosem, 279 So.2d 863 (Fla.S.Ct. 1973). We have carefully considered the other many issues presented and find them without merit. We further find that there is competеnt substantial evidence to support the appealed judgment which was well within the discretion of the trial court, and it is hereby
Affirmed.
CROSS and MAGER, JJ., concur.