Short answer--I think that a Nunc Pro Tunc order will erase the judgments, assuming that decree terms clearly transfer the property to wife as part of the Court's decree.
(Sometimes they do, sometimes they don't...)

Divorce decree errors in setting forth legal description may be corrected by nunc pro tunc order amendment to the decree.

In re Marriage of DeBoer, 828 N.W.2d 325 (Iowa App. 2013)(Table)(footnote 2). 
See also 
Chariton & Lucas County Nat. Bank v. Taylor, 213 Iowa 1206, 240 N.W. 740 (1932):
"Had the description of the property been omitted entirely from the decree which established the lien of the mortgage upon all of the property described therein, it would have been not only sufficient but conclusive. The failure of the writer of the decree to include a description of all of the property therein was due to evident mistake. The mistake became that of the court when the decree was signed. The court, under all of the authorities cited by counsel or otherwise brought to our attention, it seems to us, had jurisdiction and authority to enter such order as was necessary to carry out and give full effect to the finding of the court as clearly set forth in the decree."

Seems to me that absence of a description intended to be present may be inserted--
*Provided that* the Court actually intended to effectuate the transfer by decree, and not merely order husband to transfer the title (setting no time parameters as to when that transfer must take place).

General Mills, Inc. v. Prall, 244 Iowa 218, 56 N.W.2d 596 (1953):
"The function of a nunc pro tunc order is not to modify or correct a judgment but to make the record show truthfully what judgment was actually rendered-‘not to make an order now for then, but to enter now for then an order previously made.’ Chariton & Lucas County National Bank v. Taylor, supra, 213 Iowa, at page 1208, 240 N.W. at page 741; Hobson v. Dempsey Construction Co., 232 Iowa 1226, 1231, 7 N.W.2d 896."

If the court merely intended by its decree to order husband to transfer title, then nunc pro tunc will not work.
Or, stated another way--it may technically 'work' to clear the title, but is not a proper use of the doctrine.

A few questions that may then prove pertinent:
1) Did husband hold sole record title to this property? Or 
2) Did the parties each hold undivided shares?
If answer to 1 is No and 2 is Yes, then at most the husband's half is clouded by the post-marital liens.

3) Did this real estate previously serve as both spouses' homestead?
If answer to 3 is Yes then no judgment liens could attach at all.  Baratta v. Polk County Health Services, 588 N.W.2d 107 (Iowa 1999).

If answer to question 1 is Yes, then arguably the decree's order to husband to transfer his title created a legal duty to do so.
The decree constructively made husband a trustee of the property for his wife, vesting in her a beneficial interest in the real estate.
Unfortunately I can find no specific Iowa authority to support this supposition; nothing suggests that a trust arises without explicit request by a party.  

Some other states accept the doctrine relating to property in divorce cases. See, e.g.:
In re Marriage of Allen, 724 P.2d 651 (Colo. 1986)(intervening party sought trust upon property awarded wife due to husband's fraud)
State ex rel. Moore v. Scroggie, 109 Idaho 32, 704 P.2d 364 (1985)(divorcing wife received constructive trust upon condemnation proceeds for property in husband's name which he tried to convey away) 
Fischbach v. Mercuri, 184 Ohio App.3d 105, 919 N.E.2d 804 (2009)(post-decree constructive trust imposed upon insurance proceeds in favor of persons mentioned in divorce decree as beneficiaries)
Schneider v. Scheider, 5 S.W.3d 925 (Tex.Civ.App. 1999)(statue provides for constructive trust in marital situations)
Wilkerson v. Wilkerson, 992 S.W.2d 719 (Tex.Civ.App. 1999)(same)

General authority suggests that constructive trust may be had in Iowa, IF requested and circumstances justify.

In re Estate of Peck, 497 N.W.2d 889 (Iowa 1993)(surviving widower in midst of divorce inherited from wife who died before divorce decree was entered; court refused to impose a "constructive trust" on assets passing to surviving spouse)
"A constructive trust is an equitable remedy applied for purposes of restitution, to prevent unjust enrichment. Regal Ins. Co. v. Summit Guar. Corp., 324 N.W.2d 697, 704 (Iowa 1982). Three categories of constructive trusts are recognized: (1) those arising from actual fraud, (2) those arising from constructive fraud such as appropriation of property by fiduciaries or others in confidential relationships, and (3) those based on equitable principles other than fraud. Id. at 705."

Westcott v. Westcott, 259 N.W.2d 545 (Iowa 1977)(deed reformation between son and deceased mother)--trust denied): 
"A constructive trust... is a creature of equity used by the courts as a remedial device by which the holder of legal title is held to be a trustee for the benefit of another who in good conscience is entitled to the beneficial interest. The distinguishing feature is that it arises by operation of law, or more accurately, by construction of the court, and that result is reached in such instances regardless of and ordinarily contrary to, any intention to create a trust. Loschen v. Clark, 256 Iowa 413, 419, 127 N.W.2d 600 (1964). See also Ontjes v. MacNider, 232 Iowa 562, 575-77, 5 N.W.2d 860 (1942). Evidence to establish a constructive trust must be clear and convincing. James v. James, 252 Iowa 326, 330, 105 N.W.2d 498 (1960).

However, a trust must be requested, or at least the court must spell out in its decree its intention to impose a trust.
One does not arise automatically. (Unless fraud is involved--see Newis v. Topfer, 121 Iowa 433, 96 N.W. 905 (1905)). 

In re Marriage of Kerkhoff, 886 N.W.2d 616 (Iowa App. 2016)(Table)

Trusteeship status matters because if it exists then, upon entrance of decree, husband's property becomes titled in him only as trustee for wife, not himself personally.

3 Patton & Palomar on Land Titles 3d section 571, p. 139 (2003):
"A judgment against an individual is not a lien against land to which she holds title of record as trustee."

But I think a quiet title action may have to serve as the means to establish wife's claim of rights in the property.
Or possibly seek contempt action in the divorce, and seek payment of the amounts wife is out of pocket due to having to pay husband's debts to clear title. :p

David Hanson
Hofmeyer & Hanson PC
Fayette, Iowa


----- Original Message -----
From: "Jennifer Conlon" <realestate@iabar.org>
To: "realestate@iabar.org" <realestate@iabar.org>
Sent: Tuesday, December 5, 2017 10:31:26 AM
Subject: [ISBA RealEstate]  Divorce Decree Conveyance of Title

Previously there was discussion about the requirements for a divorce decree to effectively convey title to real estate.  I have an supplemental question to that discussion.


1.    Divorce Decree entered awarding wife real estate.  Decree fails to include the necessary language or even a legal description.

2.    Years pass and husband has a small claim judgment rendered against him and multiple traffic judgments to the state

3.    Husband signs a quit claim deed after judgments rendered

4.    Wife seeks to sell the property and offers to get an order nunc pro tunc modifying the original decree to effectively convey title to the real estate retroactive to the decree date



Can the Wife retroactively fix the decree to convey title and thus eliminate the subsequently acquired judgment liens?



Sincerely,
Jennifer A. Clemens-Conlon
Jennifer A. Clemens-Conlon
Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.
2080 Southpark Court
Dubuque, IA 52003
Tel:  563-582-2926
Fax: 563-582-2998
e-mail: jconlon@cwcmlaw.com<mailto:jconlon@cwcmlaw.com>

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