Does a Death Affect the Court's Dissolution of a Marriage If a Decree Hasn't Been Recorded ?
In Berkenfield v. Jacobs, 83 So. 2d 265 (Fla. 1955), the trial court entered a written final decree dissolving the marriage on June 21, 1954.
The decree was signed and filed in the clerk's office that same day.
Before the clerk recorded the decree, however, the husband died.
In deciding what effect the husband's death had on the proceedings, this Court looked to the history of the statutes requiring rendition of an order or decree and its prior case law mandating rendition of a decree before subsequent action may be taken on the decree. See id. at 267.
It initially acknowledged the general rule that a final decree becomes effective only when recorded if it is to form a basis for future action.
No further proceedings were contemplated, however, in that case.
Thus, after consideration of the history and purpose of the recordation statutes, the Court found that "recordation is procedural and ministerial and that a decree when recorded is but evidence of judicial action already taken; that a failure to perform the act of recording amounts only to 'a ministerial misprision' which may be remedied by an order nunc pro tunc." Id. at 268.
Accordingly, the Court rejected the view that no decree is good for any purpose until it is recorded because "[t]o adopt such an absolute rule would unquestionably work hardship and injustice in many cases of which this one is a classic example." Id.
The Court concluded, therefore, that at the time the husband died, he had been divorced by reason of the entry of the judgment of divorce, and his death before the clerk recorded the decree did not affect the trial court's dissolution of the marriage. Id.