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01/26/89 In Re Marriage of Edwin Knapton Whiting

January 26, 1989

IN RE MARRIAGE OF EDWIN KNAPTON WHITING, PETITIONER AND


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Counterrespondent, and PATTI RUTH WHITING, Respondent

and Counterpetitioner

534 N.E.2d 468, 179 Ill. App. 3d 187, 128 Ill. Dec. 286 1989.IL.75

Appeal from the Circuit Court of St. Clair County; the Hon. Sheila M. O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. HOWERTON and GOLDENHERSH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Petitioner, Edwin Knapton Whiting (the husband), appeals from orders of the circuit court of St. Clair County which denied his motion for termination of maintenance and ordered him to pay $15,550.47 in accrued and unpaid retirement benefits to respondent, Patti Ruth Whiting (the wife). For the reasons which follow, we affirm.

On January 11, 1979, the circuit court of St. Clair County entered an order dissolving the marriage between the husband and the wife. Questions of property distribution and other matters were reserved for later consideration. The property was ultimately distributed by the circuit court in a final judgment entered October 16, 1980. In that judgment, the court awarded to the wife, among other things, "one-half of that percentage of [the husband's] retirement benefits that results from dividing the number of months of marriage, 188 months, by the number of months of [the husband's] military service."

On September 8, 1982, the wife filed a motion to have the husband held in contempt for failing to pay her that portion of his military retirement benefits specified in the dissolution judgment. Her motion was taken under advisement, but remained unresolved for many years. In the meantime, the wife filed a motion asking that the October 16, 1980, dissolution judgment be modified to provide for larger maintenance payments, and the husband filed a motion asking that the dissolution judgment be modified by eliminating the maintenance payments altogether.

Following various hearings, the circuit court denied both parties' motions for modification. On the motion for contempt, however, the court ruled in favor of the wife and held that the husband owed her $15,550.47 in accrued and unpaid retirement benefits as of November 1986. From these orders the husband now appeals.

With respect to the order requiring him to pay the accrued and unpaid military pension benefits, the husband makes two arguments. First, he contends that the trial court used incorrect figures in determining the benefits he owed to the wife. This argument has no merit. As we have indicated, the judgment of dissolution expressly provided that the wife was to receive "one-half of that percentage of [the husband's] retirement benefits that results from dividing the number of months of marriage, 188 months, by the number of months of [the husband's] military service." There is no dispute that the circuit court employed this formula accurately in calculating the arrearage owed by the husband. The error, according to the husband, was that the reference to "188 months" as being the duration of the marriage was incorrect, and that the parties were actually married only 168.5 months. The husband asserts that because the higher number was used, the wife ended up receiving a higher percentage of the husband's military retirement benefits than she should have.

A threshold problem with the husband's contention is that it comes too late. The husband did not challenge the correctness of the figures used in the circuit court's original dissolution judgment until the wife filed her motion to have him held in contempt, but that did not occur until well after the time for taking an appeal from the dissolution judgment had expired.

The husband attempts to avoid this problem by arguing that the reference to 188 months instead of 168.5 months was simply the product of a clerical error. He therefore reasons that the circuit court should have revised the dissolution judgment to reflect the correct period by entering an order nunc pro tunc. This claim has no merit. Although a court may, at any time, correct a clerical error or matter of form so that the record reflects the actual order or judgment rendered by the court (Ashline v. Verble (1984), 130 Ill. App. 3d 544, 546, 474 N.E.2d 764, 766), a nunc pro tunc entry may not be used to supply omitted judicial action, correct judicial errors under the pretense of correcting clerical errors, or cure a jurisdictional defect. (In re Marriage of McDavid (1981), 97 Ill. App. 3d 1044, 1051, 425 N.E.2d 442, 447-48.) Here, there is absolutely no indication in the record that the circuit court's reference to 188 months instead of 168.5 months was the product of a clerical error. To the contrary, there seems to be little question that the use of the figure of 188 months by the circuit court was not inadvertent, but was the product of a deliberate decision made ...


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