Can a party use nunc pro tunc relief to correct their own attorney's drafting errors? Behrman v. Behrman Explained

The Utah Court of Appeals addressed an important limitation on nunc pro tunc relief in domestic relations cases in Behrman v. Behrman, where a party attempted to correct language that his own attorney had drafted.

Background and Facts

Following a 1991 divorce petition, the trial court entered its decision in August 1993 awarding the wife alimony of $3,000 per month for seven years. Post-trial litigation continued for several years, with the wife claiming the husband was delinquent on support obligations. In 1996, the court entered an amended order that husband’s attorney had prepared, stating that wife was entitled to seven years of alimony “commencing with the execution of this Decree.” When husband stopped paying alimony in 2000 (seven years after the 1993 decision), wife sought enforcement. Husband responded by seeking nunc pro tunc relief, claiming the 1996 language was a clerical error.

Key Legal Issues

The central issue was whether the district court properly applied the nunc pro tunc doctrine under Utah Code section 30-4a-1, which requires a finding of “good cause” for domestic relations cases. The court had to determine whether husband met his burden of showing good cause when his own attorney drafted the allegedly erroneous language.

Court’s Analysis and Holding

The Court of Appeals reversed, holding that while Utah Code section 30-4a-1 provides broad discretion for nunc pro tunc orders in domestic cases, common law principles still apply in determining good cause. The court emphasized that husband’s attorney had prepared and submitted the 1996 amended order containing the allegedly erroneous language. Under established precedent, a party cannot complain of their own attorney’s failure to draft appropriate language. Additionally, the moving party failed to demonstrate that the 1996 court actually intended for alimony to commence in 1993 rather than 1996.

Practice Implications

This decision reinforces that nunc pro tunc relief cannot be used to correct a party’s own drafting errors, even under the more liberal standard of Utah Code section 30-4a-1. Practitioners must exercise particular care when drafting amended orders that incorporate earlier decisions, ensuring the language accurately reflects the court’s intent. The case also highlights the importance of maintaining clear records of judicial intent, especially in cases with extended post-trial litigation.