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Home / Opinion Digests / Civil Practice / Civil Practice – Intervention Order – Nunc Pro Tunc – Domestic Relations – Equitable Distribution – Family-Owned Company

Civil Practice – Intervention Order – Nunc Pro Tunc – Domestic Relations – Equitable Distribution – Family-Owned Company

Whitworth v. Whitworth (Lawyers Weekly No. 12-07-0914, 19 pp.) (Martha A. Geer, J.) Appealed from Wilkes County District Court (Jeanie R. Houston, J.) N.C. App.

Holding: Three years after the trial judge told counsel to prepare an order allowing a family-owned company to intervene in this equitable distribution action, and two and a half years after the action concluded, the district court did not have jurisdiction to enter, nunc pro tunc, an order allowing the intervention.

We reverse the district court’s denial of plaintiff’s Rule 60 motion to set aside the intervention order.

“Nunc pro tunc” is defined as “now for then.”

Before a court order may be ordered nunc pro tunc to take effect on a certain prior date, there must first be an order actually decreed or signed on that prior date. If such decreed or signed order is then not entered due to accident, mistake, or neglect of the clerk, and provided that no prejudice has arisen, the order may be appropriately entered at a later date nunc pro tunc to the date when it was decreed or signed.

Here, any rendition in open court did not precisely set out the trial court’s order on the motion to intervene.

The trial court made no oral findings of fact, but the written order contained specific findings. Indeed, among the findings in the written order was a finding that the parties’ son was one of the owners of the company, a matter of significant dispute and one that was not resolved until entry of the consent order three months after the motion to intervene hearing.

Further, while the company argued that it should be allowed to intervene either as a matter of right or permissively, the trial court did not state in open court on which basis it was allowing the intervention. Moreover, it is not apparent from that oral ruling the degree to which the court intended to allow the company to participate in the proceedings.

It is apparent that the trial court expected the details of the order granting intervention to be fleshed out in a written order. This non-specific ruling is not a sufficient rendering to support the entry three years later of a detailed written order nunc pro tunc.

The company has failed to demonstrate that the intervention order was properly entered nunc pro tunc.

Further, the trial court had no jurisdiction to enter an order on Aug. 12, 2010 allowing the motion to intervene because the action had been concluded.

The final disposition occurred on Jan. 24, 2008 with the entry of the final equitable distribution consent order. The trial court was not enforcing the judgment or correcting a clerical mistake pursuant to Rule 60(a). No jurisdictional basis existed for the trial court to enter the Aug. 12, 2010 order granting the motion to intervene. The company cites no authority — and we have found none — that allows a court to enter an order allowing a motion to intervene two and a half years after the action was finally disposed of.

The trial court had no jurisdiction to enter the Aug. 12, 2010 order. Therefore, that order was void, and the trial court should have granted plaintiff’s Rule 60(b)(4) motion.

Reversed and vacated.


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