You asked for the effective date of a Georgia divorce decree, where the final judgment
and decree of divorce was signed by the Superior Court Judge on September 7, 2004,
entered by the Clerk of the Court on September 14, 2004, and granted by the judge
"Nunc Pro Tunc" August 27, 2004.
For the reasons stated below, we believe the effective date of the final judgment
and decree of divorce was August 27, 2004.
Mary K~ (Claimant) filed for spouse's benefits on the record of Timothy H~, the number
holder (NH). Claimant and NH were married in Macon County, North Carolina on September
1, 2004. NH and Claimant currently reside at separate addresses in North Carolina.
Prior to his marriage to Claimant, NH was married to Vicki L. H~ (former wife). They
married on August 27, 1998, and separated on September 24, 2003. NH filed a divorce
action against his former wife in the Superior Court of Towns County, Georgia. Superior
Court Judge David B~ conducted the final divorce hearing on August 27, 2004, five
days before NH married Claimant. NH and his former wife attended the hearing, and
the judge received evidence and made findings of fact.
NH's marriage to his former wife was dissolved in a final judgment and decree of divorce
issued by the Towns County, Georgia Superior Court. The divorce decree was signed
by the judge on September 7, 2004, filed by the clerk on September 14, 2004, and granted
by the court "Nunc Pro Tunc" August 27, 2004, the date of the final divorce hearing.
Both the date of the judge's signature and the filing of the decree by the clerk post-date
NH's marriage to Claimant. The nunc pro tunc date of August 27, 2004, which accompanies
the judge's signature, pre-dates NH's and Claimant's marriage.
To be entitled to spouse benefits, the claimant must be the legal spouse of the number
holder. Social Security Act ' 216(h)(1)(B), 42 U.S.C. 416(h)(1)B); 20 C.F.R. ' 404.330
(2006); POMS RS 00202.001(C). A legal spouse must be validly married to the number holder under the laws of
the State of the number holder's domicile at the time of the application or during
the life of the application. Social Security Act ' 216(h)(1)(B); 20 C.F.R. ' 404.345;
POMS RS 00202.001(A)(1). Here, NH is domiciled in North Carolina, and he and Claimant were married
in North Carolina on September 1, 2004. To determine whether Claimant is the legal
spouse of NH, one must look to North Carolina's laws to determine whether North Carolina
would give full faith and credit to the Georgia decree of divorce, terminating the
marriage of NH and his former wife. North Carolina law generally recognizes that the
full faith and credit clause of the United States Constitution requires that the judgment
of the court of one state must be given the same effect in a sister state that it
has in the state where it was rendered. Fleming v. Fleming, 271 S.E.2d 584, 587 (N.C. App. 1980); Williams v. State of North Carolina, 317 U.S. 287 (1942). Thus, North Carolina will give effect to a Georgia divorce
decree, as long as it was valid under Georgia's laws.
NH's and Claimant's marriage in North Carolina took place six days before the Georgia
Superior Court judge signed the final decree of divorce between NH and his former
wife and thirteen days before that final decree of divorce was filed by the Superior
Court Clerk. However, the date of NH's marriage to Claimant was five days after the
nunc pro tunc date of August 27, 2004, accompanying the judge's signature on the final
divorce decree. Generally, a judgment is not effective until it is filed by the clerk
of the court. Ga. Code Ann. ' 9-11-58(b) (2006). However, this Georgia Code section
recognizes the inherent power of the court to "direct otherwise." Id. Georgia law expressly authorizes a court "[t]o amend and control its processes and
orders, so as to make them conformable to law and justice, and to amend its own records,
so as to make them conform to the truth." Ga. Code Ann. ' 15-1-3(6) (2006). In the
present case, the clerk filed the final divorce decree on September 14, 2004. The
judge signed the decree a week earlier on September 7, 2004, but in signing the decree,
the judge specifically indicated that it was "nunc pro tunc" August 27, 2004, the
date of the final hearing in the case.
"A nunc pro tunc judgment 'is an entry made now of something that was actually previously
done to have the effect of former date; . . . not to supply omitted actions but to
supply omission in the record of action really had but omitted through inadvertence
or mistake.'" Coleman v. Fortner 579 S.E.2d 792, 795 (Ga.App 2003) (quoting In the Interest of H.L.W., 535 S.E. 834, 835-36 (Ga.App. 2000)). The entry of a nunc pro tunc divorce order
is appropriate where it is based solely on the record and without the need for introduction
of extrinsic evidence. See Moore v. Moore, 193 S.E.2d 608, 609 (Ga. 1972). In such a case, the court may on its own motion
and without notice to either party enter judgment nunc pro tunc at a later date. Id. Such an entry simply perfects the record, and as between the parties, it relates
back to the time when it should have been entered. Id.
Here, the final judgment and decree of divorce reflects that a final hearing was held
before the Towns County Superior Court on August 27, 2004. Both NH and his former
wife were present, evidence was submitted, and upon consideration of this evidence,
the court entered findings of fact. The Superior Court judge signed the divorce decree
on September 7, 2004, nunc pro tunc August 27, 2004. In doing so, the court demonstrated
a clear intention that the effective date of the divorce was to coincide with the
date of the final hearing before the court. As this was based entirely on the record
and without the need for additional evidence, it was well within the court's inherent
power to "make the record speak the truth." Maloy v. Planter's Warehouse and Lumber Company, 234 S.E. 807, 812 (Ga.App. 1977); see McCauley v. McCauley, 377 S.E.2d 676, 677 (Ga. 1989). In sum, the Superior Court judge clearly indicated
his intention that the effective date of the divorce was August 27, 2004, by signing
the decree nunc pro tunc to that date. This action was entirely within the judge's
discretion, and was an appropriate exercise of the court's inherent power. It is further
noted that, as this satisfied Georgia law, we conclude that North Carolina would give
effect to the Georgia court's intention of terminating the marriage of NH and his
former wife as of August 27, 2004, and that NH's former married status would not serve
as an impediment to his marriage to Claimant under North Carolina law. See Fleming, 271 S.E.2d at 587.
For the foregoing reasons, we believe the effective date of the final decree of divorce
was August 27, 2004. Thus, we would conclude NH's marriage to his former wife was
dissolved prior to his marriage to Claimant on September 1, 2004.
Mary Ann S~
Regional Chief Counsel
Richard V. B~
Assistant Regional Counsel