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Barros v. Barros
Citations: 613 P.2d 547; 26 Wash. App. 363; 1980 Wash. App. LEXIS 2128Docket: 3810-II
Court: Court of Appeals of Washington; June 9, 1980; Washington; State Appellate Court
Anna Marie Barros appeals a nunc pro tunc order that corrected her divorce decree to award John Barros his military pension, which was not mentioned in the written decree despite being included in the list of community assets. The divorce action began in June 1972, and John died in 1976 after remarrying. Rita Barros, as executor of John’s estate, sought to correct the decree in 1978. The court noted that under Washington law, a divorce action abates upon the death of a spouse, preventing modification of the decree after such an event. For Rita's motion to succeed, it must fit within the framework of nunc pro tunc corrections, which can address either clerical errors or situations arising after a party's death. The court concluded the case involved a judicial error rather than a clerical one, as the trial court had not finalized its decision on the pension division before the final judgment. Consequently, the court ruled that the nunc pro tunc motion was inappropriate, as it could not be used to correct a judgment that had not been rendered correctly. Therefore, the appellate court reversed the lower court's decision. The trial court's order has been vacated, with Judges Petrie and Petrich concurring. Rita Barros served as the personal representative of John Barros' estate, but her authority ended in mid-September 1977, 30 days after a declaration of completion of probate was filed, as per RCW 11.68.110. Although she might have obtained subsequent letters of administration under RCW 11.76.250, she did not do so. This raises doubts about whether John's estate was a party to the action, but the matter was not adequately addressed in the lower court, so the case will not be decided on that basis. Additionally, the judge who considered the motion to modify was not the original divorce proceeding judge. Current concerns regarding changes in federal or state law affecting military pension benefits are not under review, referencing Hisquierdo v. Hisquierdo and other cases. Ultimately, none of these cases support Rita Barros' claims for a nunc pro tunc order to amend the divorce decree.