Buhanan v. Buhanan

Anna Buhanan,
Plaintiff and Appellee,

v.

Paul B. Buhanan,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981775-CA

F I L E D
July 22, 1999
  1999 UT App 226 -----

Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

Attorneys:
Willard R. Bishop and William H. Leigh, Cedar City, for Appellant
Anna Folks-Martin, Cedar City, Appellee Pro Se

-----

Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

Appellant Paul Buhanan appeals from an order denying a motion to dismiss a protective order nunc pro tunc.

Appellant contends the trial court abused its discretion by failing to make its August 24, 1998 order effective, nunc pro tunc, as of October 22, 1996, the date the original stipulation to dismiss the protective order was filed. In domestic proceedings, Utah courts are permitted to enter orders nunc pro tunc upon a showing of good cause. See Utah Code Ann. § 30-4a-1 (1998). "The meaning of 'good cause' must be determined on a case by case basis, in light of all circumstances, as equity and justice require." Horne v. Horne, 787 P.2d 244, 248 (Utah Ct. App. 1987).

Section 30-4a-1 did not abrogate all of the common law related to nunc pro tunc orders. See Bagshaw v. Bagshaw, 788 P.2d 1057, 1061 (Utah Ct. App. 1990). Courts traditionally applied the nunc pro tunc doctrine in cases where the delay in rendering the judgment or decree arose from an action of the court, rather than a party. Id. at 1060-61. Thus, "a nunc pro tunc order must, even under the more liberal requirements of section 30-4a-1, still be entered for the purpose of making the record reflect what actually was meant to happen at a prior time." Id. at 1061.

Mrs. Buhanan first filed a stipulated motion to dismiss the protective order in October of 1996; however, neither party took the necessary steps to have the motion submitted to the trial judge for a decision. See Utah Code Jud. Admin. 5-401.(1)

Almost two years later, in August of 1998, the trial court vacated the protective order and dismissed the case upon the filing of a second motion to dismiss. The failure to obtain an earlier order vacating the protective order was attributable to the parties and not the court. Because the parties did not take appropriate steps to obtain a ruling on the original motion to dismiss, they had no reasonable expectation that the protective order had been vacated. Appellant suggests the parties had contact that violated the protective order while it remained in effect. Upon questioning by the trial judge, counsel for appellant confirmed the existence of pending criminal proceedings based upon the protective order. The trial court denied the request to retroactively change the effective date of the dismissal of the protective order.

Section 30-4a-1 grants the trial court discretion in determining whether nunc pro tunc treatment is justified. Under the circumstances, the trial court did not abuse its discretion in denying the request. Accordingly, the judgment is affirmed.
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. Rule 4-501 states: "Upon expiration of the five-day period to file a reply memorandum, either party may notify the clerk to submit the matter to the court for decision. The notification shall be in the form of a separate written pleading and captioned 'Notice to Submit for Decision.' The notification shall contain a certificate of mailing to all parties. If neither party filed a notice, the motion will not be submitted for decision."