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Correct clerical error in dissolution (divorce) judgment in California

Correcting a clerical error in a dissolution (divorce) judgment in California is the topic of this blog post. Correction of clerical errors in a divorce judgment in California is authorized by Code of Civil Procedure section 473(d) and Family Code section 210.

The party requesting the correction must file a notice of motion or request for order requesting that the court amend the divorce judgment to correct inadvertence or errors that may have occurred in recording the judgment. The moving party can also request that the judgment be amended nunc pro tunc as of the date the original judgment was entered.   However the motion cannot be used to contest any terms of the divorce judgment that reflect the clear intention of the court.

A clerical error can be corrected in any California divorce, legal separation or nullity case as Family Code § 210 states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

This motion is authorized to correct clerical errors only and is for that reason a limited tool in that it can only be used in appropriate situations. I do want to point out however that broad discretion is given to the trial court in classifying such errors as an omission or mistake in a judgment; a misdescription in a judgment, inadvertence in signing a faulty judgment, and an ambiguity in a judgment.

The characterization of an error in a judgment as clerical rather than judicial is extremely important as a clerical error can be corrected at any time, sua sponte by the court or on a motion from one of the parties, even many years after the case has closed. However a judicial error can be only corrected on a motion for new trial or on a motion to vacate and enter a new judgment.

The moving party seeking to persuade the court that the error was merely clerical must be very aware of how to properly characterize the error, and be sure that the error is in fact clerical and not judicial.

Again there are many instances in which published California Supreme Court and Court of Appeal decisions have stated an omission or mistake in a judgment has been characterized as a clerical error. These instances include:

An omission in the determination of an account and decree of distribution involving the probate of an estate;

The failure to include a direction that one party pay another party’s attorney’s and accountant’s fees when recording a judgment;

The failure of a judgment to clearly name the defendants, and to state their liability to the plaintiff, and

The California Supreme Court stated in a case decided over 75 years ago that California Courts have the power to correct clerical errors in their judgments at any time, regardless of how much time has passed since the error was made or the judgment entered. In that case the Supreme Court stated that a hearing and the resulting order nunc pro tunc correcting a clerical error in a decree of final distribution of an estate 35 years after the original entry was valid.

All courts have the inherent power to enter orders for judgments nunc pro tunc so that the judgment will be held effective prior to the date on which it was actually entered.

Used in the right situations, a motion to amend a judgment to correct a clerical error can allow the moving party to correct a clerical error in a judgment, even if years or decades have passed since the date of the original judgment or decree.

Attorneys or parties in California who would like to view a portion of a 13 page sample motion to amend a divorce judgment to correct a clerical error containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

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