Justice is slow. In an Illinois divorce court justice is so slow that a court order can be entered months after the motions were argued before the court. During this waiting period the parties are free to do what they want without the burden of the court order’s requirements…even though the parties probably already know the substance of the eventual order.
Late orders mean that one party inappropriately benefits from the status quo until the order is entered and available to be followed.
Courts can remedy this temporal injunstice by issuing the eventual order “nunc pro tunc.”
Nunc pro tunc is latin “now for then.” Nunc pro tunc refers to “the court having retroactive legal effect through a court’s inherent power.” Black’s Law Dictionary (11th ed. 2019)
“A nunc pro tunc order, entered to show what was done earlier, takes effect from such prior date.” Kooyenga v. Hertz Equipment Rentals, Inc., 399 NE 2d 216 – Ill: Appellate Court, 1st Dist. 1979
For example, an order may be issued on November 10 but the order may be dated “March 8, Nunc Pro Tunc” meaning that the order’s instructions are to take effect retroactively to March 8.”
At the end of a long argument, both parties and the judge are usually mentally and emotionally exhausted. A completely accurate and detailed order is often difficult to consistently produce under these circumstances. Nunc pro tunc orders are commonly used to correct typos and other errors in the order.
“At any time…a court may modify its judgment nunc pro tunc to correct a clerical error or matter of form so that the record conforms to the judgment actually rendered by the court.” Beck v. Stepp, 579 NE 2d 824 – Ill: Supreme Court 1991
Sometimes, a party or the court itself will want to change the judgment retroactively for more than a clerical error.
“A nunc pro tunc order is an entry now for something previously done, made to make the record speak now for what was actually done then. A court has inherent power to make an entry nunc pro tunc at any time, even after the expiration of its term, to correct a clerical error or matter of form so that the record reflects the actual order or judgment rendered by the court when such entry is based upon a definite and certain record. This power rests partly upon the right and duty of the courts to do entire justice to every suitor, and partly upon their control over their own records and their authority to make them speak the truth.” Kooyenga v. Hertz Equipment Rentals, Inc., 399 NE 2d 216 – Ill: Appellate Court, 1st Dist. 1979
Changing orders retroactively is a recipe for chaos. Parties to a divorce deserve to know where they stand once the order is issued. Nunc Pro Tunc orders should be limited to merely clarifying and correcting…not altering the previous order.
“The purpose of a nunc pro tunc order is to correct the record of judgment, not to alter the actual judgment of the court. A nunc pro tunc order may not be used to supply omitted judicial action, to correct judicial errors under the pretense of correcting clerical errors, or to cure a jurisdictional defect. Judgments may be modified nunc pro tunc only when the correcting order is based upon evidence such as a note, memorandum or memorial paper remaining in the files or upon the records of the court. The evidence supporting a nunc pro tunc modification must clearly demonstrate that the order being modified fails to conform to the decree actually rendered by the court.” Beck v. Stepp, 579 NE 2d 824 – Ill: Supreme Court 1991 (citations and quotes omitted)
The biggest problem with Nunc Pro Tunc orders is when the order is issued so late that the orders findings and conclusions seem to be the victim of a faulty memory. Late, nunc pro tunc orders must have some basis in the record.
“The entry of a judgment nunc pro tunc is always proper when a judgment has been ordered by the court, but the clerk has failed or neglected to copy it into the record. However, before such a nunc pro tunc entry may be made, it is necessary that there be evidence that a judgment was actually rendered. Such evidence may be founded upon some note or memorandum from the records or quasi records of the court or upon anything in the record before the court from which certainty is assured without reliance on the judge’s memory alone” Kooyenga v. Hertz Equipment Rentals, Inc., 399 NE 2d 216 – Ill: Appellate Court, 1st Dist. 1979
To issue a very late nunc pro tunc order, a court reporter’s transcript should available for the judge and the parties to review for accuracy.
“Nunc pro tunc orders must be based upon definite and precise evidence in the record. The certainty of evidence must be assured without reliance upon the memory of the judge or any other person, and a nunc pro tunc order cannot be based upon ex parte affidavits or testimony.” Beck v. Stepp, 579 NE 2d 824 – Ill: Supreme Court 1991 (citations omitted)
Challenging nunc pro tunc orders are often necessary to prevent a litigant being subject to sudden child support or maintenance arrearages. Furthermore, a challenge to a nunc pro tunc order gives stern warning to the court that the court should issue its orders quickly and correctly.
Reserved Matters And Nunc Pro Tunc Orders
Divorce is not pretty. Divorce courts often decide matters in bits and pieces while leaving other issues reserved for a later date. It’s all dollars and cents but child support may be ordered while contribution to private school may reserved for decision on a later date.
Illinois courts cannot issue orders nunc pro tunc for reserved matters.
“A nunc pro tunc order may not be used to supply omitted judicial action, to correct judicial errors under the pretense of correcting clerical errors, or to cure a jurisdictional defect. For instance, a court may not properly issue a nunc pro tunc order to affix child support obligations where the original divorce decree merely reserved jurisdiction for child support.” In re Marriage of Takata, 709 NE 2d 715 – Ill: Appellate Court, 2nd Dist. 1999
Reserved matters are not lost to the ages if reserved by order. Most reserved matters will relate back to the date of the underlying motion’s filing date.
“[A] party is entitled to a [relief] from the date of their petition.” In re Marriage of Geis, 512 NE 2d 1359 – Ill: Appellate Court, 1st Dist. 1987
Reserved matters must be ordered properly and individually….not via a nunc pro tunc order.
Nunc Pro Tunc Orders And Appeals
Nunc Pro Tunc’s ability to relate back in time becomes especially problematic for those who wish to appeal those orders…but only have 30 days to do so.
“The notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from” Ill. Sup. Ct. R. 303(a)
“The timely filing of a notice of appeal is both jurisdictional and mandatory.” R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill.2d 153, 159, 229 Ill.Dec. 533, 692 N.E.2d 306, 310 (1998).
How do you appeal an order within 30 days if the order is issued and then dated nunc pro tunc to 30 days prior?
Courts understand that you cannot appeal an order that is not even available yet. So courts will usually start the 30 day deadline based on the actual filing date not the nunc pro tunc date.
“It has been said that a judgment is not effective as of the date to which it expressly relates back if such effectiveness would deny to any proper party the right to review by a higher court the test being whether the party could have obtained the desired review before the nunc pro tunc order was made. Every final judgment of a circuit court in a civil case is appealable as of right. When the trial judge, as in the present case, does not require the submission of a written judgment order, a judgment becomes final only when entered of record. An appeal is perfected by the filing of a notice of appeal within 30 days after the entry of a final judgment or within 30 days of an order disposing of a timely post-trial motion directed against the judgment.” Kooyenga v. Hertz Equipment Rentals, Inc., 399 NE 2d 216 – Ill: Appellate Court, 1st Dist. 1979
“A nunc pro tunc order may itself properly be treated as an appealable order, because it would be manifestly unfair to allow a party no avenue in which to seek appellate review of the propriety of such an order. Accordingly, although a nunc pro tunc order for some purposes “relates back” to the time of the order it corrects, it does not relate back in such a manner as to make it impossible to file a notice of appeal within the time required by the supreme court rules.” In re Marriage of Breslow, 713 NE 2d 642 – Ill: Appellate Court, 1st Dist., 2nd Div. 1999 (citations and quotes omitted)
Nunc pro tunc orders that change tiny clerical errors are not a sufficient basis to extend the 30 day notice of appeal filing deadline.
A “court will exercise all proper means to preserve a party’s valuable right to appeal, to do so here would be to allow [an appellant] to take advantage of a clerical error as a means for perfecting an appeal from a judgment it had previously made a conscious determination not to appeal. Such would violate the spirit of Rule 303(a) which contemplates the prompt and orderly prosecution of an appeal.” Kooyenga v. Hertz Equipment Rentals, Inc., 399 NE 2d 216 – Ill: Appellate Court, 1st Dist. 1979
When there is an original order and a subsequent nunc pro tunc order modifying the original order’s contents…things start to get complicated.
The subsequent nunc pro tunc order can be appealed while the previous uncorrected order remains.
“The fact that a nunc pro tunc order is itself appealable does not connote that once a nunc pro tunc order has been entered a party may, in an appeal from the nunc pro tunc order, challenge provisions of the underlying order which was corrected nunc pro tunc.” In re Marriage of Breslow, 713 NE 2d 642 – Ill: Appellate Court, 1st Dist., 2nd Div. 1999
The previous uncorrected order will remain if the nunc pro tunc order is voided via appeal…but now the uncorrected order is likely vague and ambiguous and must be interpreted as such.
If a “nunc pro tunc order was entered without jurisdiction, this does not leave the judgment without any further potential for explanation or clarification. We note that the general rule is that judgments may be construed like other written instruments. For instance, although an unambiguous judgment must be enforced as drafted, an ambiguous judgment may be read in conjunction with the entire record and construed in accordance therewith.” In re Marriage of Breslow, 713 NE 2d 642 – Ill: Appellate Court, 1st Dist., 2nd Div. 1999
Knowing a Latin legal phrase does not make a lawyer good…but knowing how to apply a Latin phrases to a 21st century client’s case shows deep understanding of the law. As the ancient Romans would say, nemo censetur ignorare legem (Ignorance of the law excuses no one).