Frederick v. Superior Court

Opinion

ROTHSCHILD, Acting P. J. If a party dies between the time the court orally grants a judgment of dissolution and the time the court enters a written judgment of dissolution does the court lose jurisdiction to enter such judgment nunc pro tunc? For the reasons explained below, we hold the court does not lose jurisdiction to enter a nunc pro tunc judgment.

Alejandro and Thelma Martin were married on March 3, 2008, and separated on July 27, 2011.1 Alejandro petitioned for dissolution of the marriage on October 18, 2011. Thelma responded to the petition on December 12, 2011. Several months later, on April 3, 2012, Alejandro petitioned for bifurcation of the marital status, requesting that the trial court enter a judgment dissolving the marriage and reserve jurisdiction over all other issues. At a hearing on May 7, 2012, the court granted Alejandro’s bifurcation petition. It granted a judgment of dissolution of marriage and reserved jurisdiction over all other issues. Alejandro’s counsel submitted a written judgment to the court at the hearing. On May 22, 2012, Alejandro passed away. On May 25, 2012, the court entered the written judgment of dissolution.

[991]On June 8, 2012, Alejandro’s counsel appeared ex parte requesting that the trial court amend the May 25, 2012 written judgment nunc pro tunc as of a date prior to Alejandro’s death, as the judgment of dissolution had been granted and the written judgment had been submitted to the court on May 7, 2012. The court denied the motion without prejudice on the ground that no personal representative had been substituted in the action for Alejandro. On September 24, 2012, Alejandro’s daughter, Sara Frederick, was appointed as her father’s personal representative. On November 7, 2012, she requested an order joining her in the action as Alejandro’s personal representative and amending the May 25, 2012 written judgment nunc pro tunc to terminate the marital status effective May 7, 2012. The court granted her request on December 11, 2012. It entered an amended judgment and served notice of its entry on December 20, 2012. No appeal was taken from the amended judgment.

At a status and trial setting conference on July 3, 2013, the trial court announced on its own motion that it was vacating its nunc pro tunc order and amended judgment on the ground that it had lacked jurisdiction when it entered them. According to the court, it lost jurisdiction over the matter on May 22, 2012, upon Alejandro’s death, and the matter was to be resolved in probate court.