Julia K. Brooks, Respondent v. Jeffrey M. Brooks, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Julia K. Brooks, Respondent v. Jeffrey M. Brooks, Appellant. Case Number: ED80064 Handdown Date: 06/25/2002 Appeal From: Circuit Court of the City of St. Louis, Hon. Jimmie M. Edwards Counsel for Appellant: Lawrence Gillespie and Terri Johnson Counsel for Respondent: Nathan Cohen and Benicia Ann Baker-Livorsi Opinion Summary: Jeffrey M. Brooks appeals from a qualified domestic relations order and judgment entered by the trial court to implement the division of his pension as set out in the decree dissolving his marriage to Julia Brooks. DISMISSED WITHOUT PREJUDICE. Division Four holds: Because the trial court's nunc pro tunc order was inappropriate and ineffectual to convert its qualified domestic relations order into a final judgment for purposes of appeal, we lack jurisdiction to hear this appeal. Citation: Opinion Author: Sherri B. Sullivan, Presiding Judge Opinion Vote: DISMISSED WITHOUT PREJUDICE. Crahan and Mooney, J.J., concur. Opinion: Introduction Jeffrey M. Brooks (Husband) appeals from a Qualified Domestic Relations Order and Judgment entered by the trial court to implement the division of Husband's pension as set out in the Decree of Dissolution of the marriage of Husband and Julia Brooks (Wife). We dismiss the appeal without prejudice.

Factual and Procedural Background On October 7, 1994, the trial court entered Findings of Fact, Conclusions and Decree of Dissolution (Decree) dissolving the marriage of Husband and Wife. Paragraph 20 of the Decree provides: Wife, as Alternate Payee, shall be, and hereby is assigned 50% of any benefits, whether lump sum payments or a monthly annuity, payable to Husband, as Participant, under the Plumbers Union Local No. 35 Retirement Plan, multiplied by a fraction the numerator of which is the number of years Husband was a member of Plumbers Union Local No. 35 during the parties' marriage and the denominator of which is the number of years Husband was a member of Plumbers Union Local No. 35 as of the date payments commence to Husband, but not exceed a factor of one, as more specifically provided in a Qualified Domestic Relations Order to be prepared by counsel for Wife and submitted to this Court for signature. On June 14, 2001, the trial court entered a Qualified Domestic Relations Order (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. On November 1, 2001, the trial court, apparently sua sponte, entered a Nunc Pro Tunc Order amending the QDRO to be a Judgment. Point on Appeal In his point on appeal, Husband asserts that the trial court erred in entering a QDRO which awarded Wife survivor benefits in excess of those necessary to implement the division of property set forth in the Decree because the QDRO is based upon a misapplication of the 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. Discussion Because a nunc pro tunc order merely causes the record to reflect the true judgment of the court, this power can be exercised at any time. Pirtle v. Cook, 956 S.W.2d 235, 241 (Mo.banc 1997). Any time includes the time after an appeal has been perfected. State ex rel. Steinmeyer v. Coburn, 671 S.W.2d 366, 371 (Mo.App. W.D. 1984). Because nunc pro tunc orders do not enter new judgments, but are confined to the record, no notice or opportunity to be heard need be given. Pirtle, 956 S.W.2d at 241, Rule 74.06(a).(FN1) Also, because a correction of the record does not affect the court's judgment, the changes relate back to the original judgment and do not constitute a new judgment. Pirtle, 956 S.W.2d at 241.

A nunc pro tunc amendment allows a court to correct clerical errors in its judgment even after it has lost jurisdiction over the case. Rule 74.06(a), Pirtle, 956 S.W.2d at 240. The purpose of a nunc pro tunc amendment is to correct clerical mistakes made in recording the judgment rendered. It is improper to use a nunc pro tunc order to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did, or to conform to what the court intended to do but did not do. Furthermore, to warrant the use of a nunc pro tunc order, the correction must be supported by a writing in the record which indicates the intended judgment is different from the one actually entered. Keck v. Keck, 996 S.W.2d 652, 654 (Mo.App. E.D. 1999), quoting Javier v. Javier, 955 S.W.2d 224, 225-26 (Mo.App. E.D. 1997). In Keck, the trial court's nunc pro tunc order, like in the instant case, purported to retroactively transform the commissioner's findings and recommendations into a final appealable judgment. Keck, 996 S.W.2d at 654. This Court found that the order accomplished far more than correcting a mistake. Id. We found that the nunc pro tunc mechanism was particularly inappropriate where it is used to create a judgment. Id. We elaborated on that finding as follows: Allowing the use of Rule 74.06(a) to create a retroactive judgment undermines the express language of Rule 74.01(a) and the reasons for its creation. Rule 74.01(a) establishes a bright-line standard designed to notify all parties with certainty that the court has entered judgment. Entry of judgment is a significant legal occurrence. The date a judgment is rendered is significant because it is the date from which the timeliness vel non of post-trial and appellate filings is measured. See Rule 75.01; Rule 78.04; Rule 81.05. To allow the rendition of judgment at times other than when entered would create tremendous uncertainty throughout the post-trial and appellate process. Id. at 654-655. Other cases have also found the use of a nunc pro tunc order to be inappropriate to change an order into a judgment. See, e.g., Ballinger v. Rhees, 39 S.W.3d 842, 843 (Mo.App. W.D. 2000). This situation is especially true where there is no clerical error involved, but rather an error in the exercise of judicial discretion. Pirtle, 956 S.W.2d at 243. There is no indication in the record that the failure to denominate the QDRO as a judgment was a clerical error, and not a judicial oversight. It is improper to use a nunc pro tunc order to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did, or to conform to what the court intended to do but did not do. Keck, 996 S.W.2d at 654. Accordingly, we find the Order Nunc Pro Tunc to be without effect. Therefore, the only thing before us for review would be the original QDRO. A prerequisite to appellate review is that there be a final judgment. Fowler v. Fowler, 984 S.W.2d 508, 512 (Mo.banc 1999). If the trial court's order is not a final judgment, the appellate court lacks jurisdiction and the appeal must be dismissed. Id. Rule 74.01(a) defines what constitutes a judgment: "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" or "decree" is filed. A judgment may be a separate document or included on the docket sheet of the case.

The designation "judgment" must appear as the heading of the writing, within the body of the writing, or in the docket sheet entry, provided it is clear from the writing that the document or entry is being "called" a "judgment" by the trial court. Fowler, 984 S.W.2d at 512. Pursuant to Rule 74.01, the QDRO does not constitute a judgment. Therefore, no final appealable judgment exists in this case and the appeal is dismissed without prejudice. We note that Husband is free to pursue a motion to modify the QDRO in the trial court. There is no time limit on moving to modify a QDRO. Wells, 998 S.W.2d at 168. Section 452.330.5 authorizes the circuit court to modify a QDRO, and it places no time limits or restrictions upon the circuit court as to when this can be done. To modify a QDRO, a party must establish that the circuit court would be modifying the QDRO "to establish or to maintain the QDRO's status as 'qualified' under a particular plan or to conform its terms to effectuate the [intent of the court's order regarding distribution of property]." Id. at 168. See also, Miles v. Miles, 43 S.W.3d 876, 879 (Mo.App. W.D. 2001). Conclusion Husband's appeal is dismissed without prejudice.(FN2) Footnotes: FN1.All rule references are to Mo. R. Civ. P. 2002, unless otherwise indicated. FN2.Count I of Wife's Motion for Attorney's Fees based on a frivolous appeal is denied. Count II of Wife's Motion for Attorney's Fees based on Section 452.355 is dismissed for lack of jurisdiction. Pursuant to Section 452.355, in dissolution matters the Court of Appeals has no jurisdiction to award attorney's fees even when a case is pending on appeal. Clarke v. Clarke, 983 S.W.2d 192, 195 (Mo.App. E.D. 1998). The circuit court, and only the circuit court, has jurisdiction to consider and grant such a fee award. Id. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.