In Re the Marriage of: Holly Christine Hyde and Michael James Hyde; Holly Christine Hyde v. Michael James Hyde

• Court: Missouri Court of Appeals
• Decided: April 8, 2025
• Docket: WD87426
• Status: Published

Opinion

In the Missouri Court of Appeals Western District

IN RE THE MARRIAGE OF: ) HOLLY CHRISTINE HYDE ) AND MICHAEL JAMES HYDE; ) HOLLY CHRISTINE HYDE, ) ) Appellant, ) WD87426 ) V. ) OPINION FILED: ) APRIL 8, 2025 MICHAEL JAMES HYDE, ) ) Respondent. )

Appeal from the Circuit Court of Boone County, Missouri The Honorable Joshua Calvin Devine, Judge

Before Division Two: Janet Sutton, Presiding Judge, Mark D. Pfeiffer, Judge and Gary D. Witt, Judge

Holly Hyde ("Wife") appeals a judgment from the Circuit Court of Boone County,

Missouri ("trial court"), granting Michael Hyde's ("Husband") motion to dismiss Wife's

motion for a nunc pro tunc order. On appeal, Wife asserts the trial court erred in granting

Husband's motion to dismiss because Wife's motion sufficiently stated a claim for a nunc

pro tunc order because the trial court's judgment and decree of dissolution of marriage

contained erroneous language as a result of a clerical mistake. Finding no error, we

affirm the judgment of the trial court. Factual and Procedural Background1

Husband and Wife were married in June of 1996 and share three children. On

April 23, 2020, Wife filed a petition for legal separation. Husband subsequently filed an

answer to Wife's petition and a counter petition for dissolution of marriage. Husband and

Wife entered into and signed under oath a separation and property settlement agreement

("Agreement"). On January 12, 2021, the trial court entered its judgment and decree of

dissolution of marriage, incorporating the parties' Agreement. Regarding maintenance,

the Agreement detailed Husband's non-modifiable maintenance obligations to Wife for a

period of ninety-six months. The maintenance provision concluded with the following:

"The parties agree that, based on the total circumstances, these sums are non-modifiable,

and will terminate upon death or remarriage of either party."

On May 22, 2023, Wife filed a motion to set aside the Agreement, or for a nunc

pro tunc order. In her motion, Wife alleged that neither Husband's attorney nor Wife's

attorney discussed with each other or agreed to Husband's maintenance obligation

terminating upon his remarriage. Thus, Wife requested the Court to amend the judgment

by a nunc pro tunc order to correct the judgment because it erroneously included this

language. On June 9, 2023, Husband filed a motion to dismiss and strike Wife's motion.

The trial court held a hearing on the matter.

1 "In reviewing a [trial] court's grant of a motion to dismiss, we treat the facts in the petition as true and construe them liberally in favor of the plaintiff." McDonald v. Chamber of Com. of Indep., 581 S.W.3d 110, 112 n.2 (Mo. App. W.D. 2019). 2 At the hearing, Wife narrowed her argument and requested relief solely on her

request for a nunc pro tunc order pursuant to Rule 74.06(a).2 Both parties agreed there

was no reason to call witnesses or present evidence on the matter because the issue was

purely a question of law about whether the alleged mistake could be classified as a

clerical mistake under Rule 74.06(a). If it was a clerical mistake, the trial court retained

jurisdiction because clerical errors may be corrected by the trial court at any time. Rule

74.06(a). If, however, the allegations in Wife's petition did not establish this was a

clerical mistake, but rather a mistake, inadvertence, surprise, or excusable neglect under

74.06(b)(1), the trial court would lack jurisdiction because Wife's motion was untimely

filed more than one year after the underlying judgment was entered.

Following the hearing, at the request of the trial court, both parties filed

suggestions in support of their respective motions. Wife argued relief under 74.06(a) was

appropriate because the trial court's judgment included a clerical mistake as it provided

that maintenance would terminate upon the remarriage of "either party" which defied

logic and was inconsistent with the default language codified in section 452.370.3.3

Conversely, Husband argued relief under 74.06(a) was not appropriate because the

alleged error was not a clerical mistake. Rather, Husband asserted the written judgment

accurately reflected the trial court's actual judgment in that it was identical to the parties'

signed Agreement. According to Husband, Wife was requesting the trial court to change

2 All Rule references are to the Missouri Supreme Court Rules (2024) unless otherwise noted. 3 All statutory references are to the Revised Statutes of Missouri (2016) as currently updated by supplement, unless otherwise noted. 3 its judgment due to Wife's "alleged unilateral misunderstanding of the terms."

Thereafter, the trial court granted Husband's motion to dismiss. This appeal follows.

Standard of Review

The trial court treated Husband's motion as a motion to dismiss and did not

address the merits of Wife's motion. This Court reviews a trial court's grant of a motion

to dismiss de novo. Bell v. Shelter Gen. Ins. Co., 701 S.W.3d 614, 618 (Mo. banc 2024).

In situations like this one, where the trial court did not specify the basis for its decision to

grant Husband's motion to dismiss, "we presume the dismissal was on a basis set forth in

the motion to dismiss, and we will affirm the dismissal if it can be supported on any basis

set forth in the motion to dismiss." Hartman v. Logan, 602 S.W.3d 827, 835 (Mo. App.

W.D. 2020). Here, Husband's motion effectively argued that Wife's motion for a nunc

pro tunc order failed to state a claim for relief. "A motion to dismiss for failure to state a

claim is solely a test of the adequacy of the plaintiff's petition." Kemp v. McReynolds,

621 S.W.3d 644, 652 (Mo. App. E.D. 2021). Thus, we are to review Wife's motion for

nunc pro tunc relief "in an almost academic manner, to determine if the facts alleged

meet the elements of a recognized cause of action or of a cause of action that might be

adopted in that case." Bell, 701 S.W.3d. at 618.

4 Analysis

In her sole point on appeal, Wife argues that the trial court erred in granting

Husband's motion to dismiss Wife's motion for nunc pro tunc relief because she properly

stated a claim for relief under Rule 74.06 as she sufficiently alleged there was a clerical

mistake in the trial court's judgment and decree of dissolution of marriage.

"A nunc pro tunc judgment is a common law concept that recognizes a court's

control over its records when it no longer has control over the case." Bureaus Inv. Grp. v.

Williams, 310 S.W.3d 297, 300 (Mo. App. E.D. 2010). Rule 74.06(a) codified this

concept and provides, "Clerical mistakes in judgments . . . arising from oversight or

omission may be corrected by the court at any time of its own initiative or on the motion

of any party and after such notice, if any, as the court orders." "[T]he only true function

of a nunc pro tunc order is to correct some error or inadvertence in the recording of that

which was actually done, but which, because of that error or omission was not properly

recorded[.]" Soehlke v. Soehlke, 398 S.W.3d 10, 22 (Mo. banc 2013) (internal citation

and quotation omitted). "[A] clerical error is often referred to as a typographical error."

Magellanic Seven, LLC v. Wentzville Church of God, 705 S.W.3d 618, 624 (Mo. App.

E.D. 2024). When determining whether an alleged error is a "clerical mistake," our focus

is on what type of mistake was made, rather than who made the mistake. McGuire v.

Kenoma, LLC, 447 S.W.3d 659, 663. (Mo. banc 2014). A presumption exists that there

are no clerical errors in judgments, and thus the party seeking a correction must show that

the judgment did not conform to the record. Id. at 665.

5 In Wife's motion for nunc pro tunc relief she alleged: the trial court's judgment

incorporated a signed Agreement that was prepared by Husband's attorney; the trial court

heard no testimony regarding the circumstances of the parties at the time of their divorce,

the voluntariness of the agreement, the financial situation of the parties, the issue of

unconscionability, or otherwise; the judgment contained no findings regarding the

relative financial circumstances of the parties, Wife's reasonable needs, Husband's ability

to pay maintenance, or any restrictions on termination of Husband's maintenance

obligation; and, "[n]either attorney expressly discussed with the other, nor agreed to, the

termination of Husband's maintenance obligation upon HIS remarriage." Wife's motion

requested the trial court to correct its judgment to reflect that Husband's maintenance

obligation does not terminate upon his remarriage.

Wife asserts in her brief that nunc pro tunc orders have been used in situations,

like here, when "the Judgment does not reflect the actual agreement of the parties due to a

clerical error, or when the Judgment inadvertently contains a maintenance provision that

is inconsistent with Section 452.370." Wife primarily relies on Katz v. Katz, 708 S.W.2d

816 (Mo. App. E.D. 1986), and asserts the only difference between that case and the case

at bar is who made the error. We find this case to be substantially and materially

different than Katz.

In Katz, the Eastern District of this Court held a nunc pro tunc order was proper as

there was a clerical mistake because the court clerk used the wrong form for the parties'

dissolution judgment. Id. at 818. At the time, the trial court's decree forms had been

revised to conform with federal tax law and provided that one's liability to pay

6 maintenance terminated on the death or remarriage of the recipient. Id. at 817. The

Katzes' decree of dissolution was on an older form that did not include this updated

language. Id. The Court found that the trial court's judgment of dissolution was the same

whether or not the new form was used because, consistent with section 452.370 RSMo.

(1986), maintenance was to terminate on the death or remarriage of the recipient unless

the trial court specifically ruled otherwise. Id. at 818. Since the record in that case was

silent as to the termination of maintenance, the Court concluded a nunc pro tunc order

was proper to fix the clerical error of omission of the language as it did not change the

substance of the judgment. Id.

Here, unlike in Katz, the trial court's judgment incorporated a signed Agreement

from the parties that included a provision specifically detailing the termination of

maintenance. Section 452.370.3 provides: "Unless otherwise agreed in writing or

expressly provided in the judgment, the obligation to pay future statutory maintenance is

terminated upon the death of either party or the remarriage of the party receiving

maintenance." (emphasis added). Contrary to Wife's position, while the language in the

trial court's judgment differs from the statutory default language, this does not in itself

render Wife's motion sufficient in stating a claim for nunc pro tunc relief under Rule

74.06(a) because the parties are allowed to agree upon terms that differ from the default

language in the statute. Section 452.370.3. As the party seeking relief, Wife had the

burden to sufficiently allege facts that the judgment did not conform to the record to

entitle her to relief via a nunc pro tunc order, and we find Wife failed to do so. See

McGuire, 447 S.W.3d at 665.

7 From Wife's motion it is unclear whether she is alleging the error occurred during:

the parties' creation and execution of the Agreement or the trial court's recording of the

judgment. Wife alleges the parties never discussed or agreed to the "either party"

language in the termination of maintenance provision, which could suggest that the

alleged error occurred during the creation of the Agreement. Wife also alleges the

judgment submitted to the trial court by the parties erroneously included this language in

the termination provision. These two allegations can be squared together, as the alleged

erroneous language in the Agreement would undoubtedly be included in the trial court's

judgment as it wholly incorporated the parties' Agreement. An alleged error occurring

during the creation of the parties' Agreement, however, cannot classify as a "clerical

mistake" under Rule 74.06(a). Cf. State v. Fizer, 119 S.W.3d 640, 641 (Mo. App. W.D.

2003) (holding nunc pro tunc order proper where judgment incorrectly imposed a ten

year sentence when the maximum sentence for the underlying conviction was one year);

Johnson v. Johnson, 654 S.W.2d 212, 213-14 (Mo. App. E.D. 1983) (holding nunc pro

tunc order was proper where parties entered into a separation agreement providing the

maintenance award was to be reduced "by $13,500" upon the occurrence of a future event

however, the trial court's judgment erroneously reported that the maintenance award was

to be reduced "to $13,500" despite the court's intent to enter judgment in accordance with

the parties' agreement). In this case, the language in the judgment is identical to the

language in the Agreement.

Wife's assertion that the parties never discussed or agreed to the termination of

maintenance language could suggest that the alleged error occurred during the trial court's

8 recording of the judgment. Wife's motion, however, is silent as to what language the

parties actually agreed to regarding the termination of maintenance provision and the trial

court's judgment in fact accurately reflects the written agreement of the parties. Thus,

Wife's motion fails to draw a sufficient connection to how she believes the entered

judgment was inconsistent with what the parties and trial court intended it to be in order

to illustrate that the alleged error occurred during the recording of the judgment. Because

of this, we find Wife's motion for a nunc pro tunc order does not sufficiently allege facts

that could afford her relief under Rule 74.06(a). See e.g., Andrae v. Andrae, 171 S.W.3d

170, 172 (Mo. App. E.D. 2005) (holding movant failed to show there was a clerical error

in the trial court's recording of its judgment where he failed to provide evidence

demonstrating that a different judgment was entered); DiSalvo Props., LLC v. Purvis, 498

S.W.3d 530, 533-34 (Mo. App. E.D. 2016) (stating a nunc pro tunc order was not proper

where the trial court sought to make a correction to the judgment, but that alleged

correction was not reflected anywhere in the record).

Moreover, Wife asserts on appeal that "while the Judge may have incorporated the

[Agreement] submitted by the parties into the Judgment of Dissolution . . . the

[Agreement] did not reflect the actual agreement or intentions of the parties." Wife is

thereby asserting that the mistake occurred during the creation of the Agreement between

the parties, as the language was "unintentionally included" in the Agreement which was

executed by the parties and subsequently reflected in the trial court's judgment. As

discussed, this type of alleged error is not one that affords a party nunc pro tunc relief

9 under Rule 74.06(a). See Soehlke, 398 S.W.3d at 22. Therefore, the trial court did not err

in granting Husband's motion to dismiss.

Conclusion

For the above stated reasons, we affirm the judgment of the trial court.

__________________________________ Gary D. Witt, Judge

All concur