PR 06210.025 Michigan

A. PR 86-037 Date of Divorce Established by Nunc Pro Tunc Decree Michigan -- Vito M~

DATE: October 10, 1986

1. SYLLABUS

DIVORCE -- EFFECTIVE DATE -- MICHIGAN

An entry of a judgment "nunc pro tunc" is designed to correct errors to reflect what actually occurred. It may not be used to alter or amend an existing judgment or to change the date that judgment was actually entered. Thus, its use by a State Court as the result of a petition by a claimant for divorced wife's benefits to circumvent the requirement that the parties be married for ten years would not be binding on the Secretary, as two of the criteria in Gray v. Richardson, 474 F. 2d 1370 (6th Cir. 1973) are lacking; that the issue be genuinely contested and that the decision be consistent with law enunciated by the highest court of the State. (M~, Vito, ~ -- RAV (H~), to ARC Progs., 10/10/86.)

2. OPINION

You have asked our assistance in determining whether Genevieve G~ is entitled to Social Security benefits on the account of he former husband, Vito M~ . We conclude that Ms. G~ is not entitled to such benefits.

We understand that Genevieve G~ and the wage earner, Vito M~ , were married in Wayne County, Michigan on November 9, 1940. They were divorced in 1950. The Circuit Court of Wayne County entered an interlocutory divorce decree on May 3, 1950. Under the terms of that decree, the divorce became final six months from the day of entry. The parties were thus finally divorced on November 3, 1950.

On November 12, 1981, Ms. G~ applied for benefits on Vito M~'s account. Because they had been married for less than ten years, her application was denied and her subsequent request for reconsideration was also denied. Ms. G~ subsequently petitioned the circuit court to change the decree's entry date to May 17, 1950. Ms. G~ advised the Court and the Social Security Administration that she sought this change solely for the purpose of qualifying for Social Security benefits on her husband's account. Her petition was not contested and on June 2, 1983, the court entered a decree, nunc pro tunc,* changing the date as requested.

Notwithstanding the circuit court decree, we conclude that Ms. G~ is not entitled to benefits upon Vito M~'s account because she does not satisfy the ten year marriage requirement. As we have stated in prior opinions, the Secretary is not bound by a state court judgment deciding family status questions where the judgment does not meet each of four criteria set forth by the Sixth Circuit Court of Appeals in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). G~, RA V (H~) to ARC, Programs V, 7/8/82; F~ ,~ , RA V (H~) to Director, Insurance Programs Branch V, 3/30/82. The Gray criteria are: 1) the state court has jurisdiction over the issue; 2) the issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state.

Two of the Gray criteria are not met in this case. First, it appears that the issue was not genuinely contested before the state court and second, the court decision is not consistent with the law enunciated by the highest court in the State of Michigan.

A nunc pro tunc entry, in practice, is an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted through inadvertence or mistake.

Magoun v. Walker, 286 Mich. 686, 282 N.W.2d 868 (1938); quoting Perkins v. Hayward, 132 Ind. 95, 31N.E. 670 (1892); Freeman v. Hulbert, 230 Mich. 455; 203 N.W. 158, 160 (1925), People v. Gregory, 174 N.W. 2d 905 (1969). Thus, in Freeman v. Hulbert, supra, the Michigan Supreme Court ruled that the nunc pro tunc entry of an order was appropriate where the trial judge had authorized the administrator of an estate to hire counsel but the order had not been recorded. The Court emphasized that its role was not to "supply now some judicial action omitted." Rather, its action merely" perfect[ed] of record action heretofore judicially had." Id. at 159. Similarly, in Far- mer v. Farmer, 200 Neb. 308; 263 N.W.2d 664----[1978), the Nebraska Supreme Court upheld an order nunc pro tunc to correct a decree in which the petitioner's name was inadvertently typed in place of respondent's. In contrast, in Magoun v. Walker, supra, the Michigan Supreme Court denied the nunc pro tunc entry of an order which would have corrected errors in the "return of service" of notice to redeem land after a tax sale. There, the court reasoned that since the return did not meet statutory requirements an amended return could not relate back "and make good that which was not good on October 28, 1930." Id. at 869.

In divorce cases a judgment nunc pro tunc is usually used if the "entry of the decree has been omitted or delayed through inadvertence or mistake, or the decree has otherwise not been properly entered." Vioglavich v. Vioglavich, 317 N.W.2d 633, 637 (1982). The Michigan Supreme Court has strictly limited the use of the nunc pro tunc judgment as a method of changing the effective date of a divorce. In Tiedman v. Tiedman, 255 N.W.2d 632 (1977), for exampl