Jeffrey M. Brooks (“Husband”) appeals from a Qualified Domestic Relations Order
I.
On October 7, 1994, the trial court entered findings of fact, conclusions of law and decree of dissolution, dissolving the marriage of Husband and Wife. Under Paragraph 20 of the decree, Wife was awarded 50% of any benefits payable to Husband as a participant in an employee pension plan, “as more specifically provided in a [QDRO] to be prepared by counsel for Wife and submitted to this Court for signature.” For reasons that are not part of the record, no proposed QDRO was presented to the court until 2001, but on July 9 of that year, the trial court entered a QDRO providing Wife with survivor benefits as follows:
III. Death Benefits
A. In the event that the participant predeceases the alternate payee prior to the participant’s earliest retirement date, the alternate payee shall be deemed to be a surviving spouse, as defined in the Plan, and shall be entitled to receive the portion of the death benefit payable under the plan with respect to the participant’s entire accrued benefit prior to division. The benefit paid under this paragraph shall be in lieu of any other benefit provided under this order.
On August 20, 2001, Husband filed a notice of appeal. Then on November 1, 2001, the trial court entered a nunc pro tunc order retitling the QDRO as a “Judgment.” On appeal, Husband asserts that the “trial court erred in entering the Qualified Domestic Relations Order and Judgment which awarded Wife survivor benefits in excess of those necessary to implement the division of property set forth in the Decree of Dissolution because the [QDRO] is based on a misapplication of law and is in excess of the trial court’s jurisdiction in that full survivor benefits set up a possible windfall for Wife in the event of Husband’s death and prevent a subsequent spouse of Husband from receiving survivor benefits.”
II.
The appealability of the QDRO is a jurisdictional question. As a general rule a party in a civil action may only appeal from a trial court’s final judgment.
Avidan v. Transit Cas. Co.,
Although the QDRO is an appeal-able special order, to perfect the appeal it is still necessary to denominate the order as a “judgment or decree.” This requirement, set out in Rule 74.01(a), applies to “decreefe] and any order from which an appeal lies.”
Tyree v. Tyree,
In this case the nunc pro tunc amendment denominating the QDRO as a “judgment” was not effective to satisfy the Rule 74.01(a) requirement because the nunc pro tunc mechanism is only available to correct clerical errors, not judicial errors.
Pirtle v. Cook,
III.
Having determined that the appeal of the QDRO was proper, the case is retrans-ferred for a decision on the merits.
