20 CFR 404.1101 and 404.1109

SSR 77-11

Judgment nunc pro tunc establishing paternity is void under California law if it was entered in an action commenced against a dead person. Judgment nunc pro tunc, under California law, is proper only to correct judicial error in entering of judgment or to enter judgment unjustly delayed in completed litigation.

A question is raised as to what effect, under California law, a judgment nunc pro tunc has on the establishment of paternity of the child in question for purposes of his eligibility for Surviving Child's Insurance Benefits on the earnings record of the deceased under Section 216(h)(3)(C)(i)(II) and (III) of the Social Security Act.

The facts involve an application for Surviving Child's Insurance Benefits for an illegitimate child born in December 1966. The alleged father at no time lived with the mother or the child or had the child in his household, and he never acknowledged the child as his own in writing. The alleged father died on June 3, 1972.

On June 18, 1975, the Superior Court for the County of Santa Clara, State of California, issued a Judgment of Paternity "Pursuant to Stipulation to be Entered Nunc Pro Tunc" in which the deceased was found to be the natural father of the child and was ordered to pay for his support and maintenance commencing on February 15, 1972. The Judgment was entered and deemed singed and filed as of February 4, 1972.

A judgment nunc pro tunc is a formal judgment which is made retroactively effective to avoid injustice. Generally, there are two types of cases in which such a judgment may be proper. The first is where litigation before the court is entirely completed and ready for determination, but the final decision is delayed through no fault of the parties. The second class of cases in which nunc pro tunc decrees are proper is composed of those in which judgment has been rendered, but due to the negligence or inadvertence of ministerial officers of the court, it has not been timely entered or placed on record. See, 28 Cal. Jur. 2d Judgments § 60; Leavitt v. Gibson, 3 C.2d 90, 43 P.2d 1091; Fox v. Hale & Norcross Silver Mining Co., 108 C. 478, 41 P. 328; see also Walter H. DeWolfe, D-1529, 7/15/53. In either case, the purpose of such a judgment is to avoid an unjust result injuring innocent parties. Young v. Gardner-Denver Co., 244 C.A. 2d 915, 53 Cal. Rptr. 522.

Therefore, unless the particular judgment nunc pro tunc was entered either to correct a judicial error or to finalize completed litigation, it would be invalid under California law.

A final determination of the validity of the order on this basis may not be necessary, however, if it was entered in civil suit commenced against a deceased person. It is settled principle of law that a judgment rendered against a party who was dead at the time the action was commenced is void. See 28 Cal. Jur. 2d Judgments § 61; LUNDBLADE v. Phoenix, 213 C.A. 2d 108, 28 Cal. Rptr. 660; Woolley v. Seijo, 224 C.A. 2d 615, 36 Cal. Rptr. 762. Thus, a judgment nunc pro tunc cannot be entered in an action commenced against a deceased defendant even though it would have taken retroactive effect during his lifetime. See, Boyd v. Lancaster, 32 C.A. 2d 574, 90 P.2d 317.

Therefore, under established California law, the judgment nunc pro tunc entered naming the deceased insured individual the natural father of the applicant here is void, unless it was entered, in an action commenced against the defendant before his death, to either correct a judicial error or to finalize completed litigation.

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