in the Interest of C.D.G., A.D.G. and L.M.G., Children ( 2022 )

VACATE; REINSTATE and Opinion Filed July 15, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00132-CV
IN THE INTEREST OF C.D.G., A.D.G. AND L.M.G., CHILDREN
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-55585-2013
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Smith
Opinion by Justice Schenck
Appellant B.A. (“Wife”) appeals the trial court’s January 7, 2021, Nunc Pro
Tunc Final Decree of Divorce (“Nunc Pro Tunc Judgment”), contending there is no
evidence of a clerical error in the entry of the Final Decree of Divorce (“Original
Judgment”). Because we agree that C.G.’s (“Husband”) request for judgment nunc
pro tunc was not available at law, we vacate the Nunc Pro Tunc Judgment and
reinstate the Original Judgment. Because all issues are settled in law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
On or about September 16, 2014, Judge John Roach signed the Original
Judgment dissolving the marriage of Wife and Husband. A prove up hearing was
conducted that same day, at the conclusion of which,1 Judge Roach stated:
The Court finds, based upon the pleadings and the evidence, that the
divorce should be granted and it is granted, effective today. The
agreements, as contained in the Final Decree of Divorce [the Original
Judgment], are both approved, adopted and rendered by the Court as its
own order. 2
The Original Judgment provided for ten years of contractual alimony to be paid by
Husband to Wife and provided, in part:
The Final Decree of Divorce is stipulated to represent a merger of the
mediated settlement agreement between the parties.
To the extent there exist any differences between the mediated
settlement agreement and this Final Decree of Divorce, this Final
Decree of Divorce shall control in all instances.
In 2020, Husband filed a motion for judgment nunc pro tunc seeking to change
the term of contractual alimony from ten years to seven years, as set forth in the
mediated settlement agreement (“MSA”). A hearing on Husband’s motion was
conducted via Zoom on November 30, 2020, at which counsel provided argument.
1
At the prove up hearing, the Original Judgment was the only exhibit presented to the court, Wife was
the only testifying witness, and she affirmatively indicated that there were no other agreements outside of
those specified in the Original Judgment.
2
The transcript from the prove up hearing is in the record before us, although it was not presented to
the trial court in consideration of Husband’s motion for judgment nunc pro tunc. Because we conclude
Husband failed to present evidence to support his motion for judgment nunc pro tunc, we need not consider
the import of the transcript from the prove up hearing in the disposition of this matter.
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No evidence was presented at that hearing, and Husband did not attempt to establish
when judgment was rendered in this case. He simply claimed that the discrepancy
between the contractual alimony period in the MSA and the Original Judgment was
a clerical or “scrivener’s” error. On January 1, 2021, Judge Andrea Thompson, the
then presiding judge of the 416th District Court, signed the Nunc Pro Tunc Judgment
changing the term of contractual alimony as requested by Husband. This appeal
followed. As discussed below, we conclude that reformation of the judgment by
nunc pro tunc is not supported at law under controlling precedents.
DISCUSSION
I. Trial Court’s Jurisdiction - Standard of Review
Whether a trial court retains jurisdiction is a legal question that we consider
de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Pollard
v. Pollard, 316 S.W.3d 246, 248 (Tex. App.—Dallas 2010, pet. denied). In the
context of a judgment nunc pro tunc, the decision as to whether an error in a
judgment is judicial or clerical is a question of law. Finlay v. Jones, 435 S.W.2d
136 (Tex. 1968). However, whether the court pronounced judgment orally and the
terms of the pronouncement are questions of fact. Escobar v. Escobar, 711 S.W.2d
230, 232 (Tex. 1986). The judicial or clerical question becomes a question of law
only after the trial court factually determines whether it previously rendered
judgment and the judgment’s contents. Id.–3–
II. Plenary Jurisdiction
A trial court retains jurisdiction to vacate, modify, correct or reform a
judgment for thirty days after it signs the judgment. TEX. R. CIV. P. 329b(d). The
trial court’s plenary power may be extended by the timely filing of an appropriate
post-judgment motion, but it may not be extended more than 105 days after a
judgment is signed. See TEX. R. CIV. P. 329b(c), (e), (g). A judgment or order
rendered after a trial court loses its plenary power is generally void. See In re Sw.
Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); Hines v. Villalba,
231 S.W.3d 550, 553 (Tex. App.—Dallas 2007, no pet.).
A trial court, however, has an affirmative duty to enforce its judgment and
retains authority to do so even after its plenary power over a judgment expires. See
TEX. R. CIV. P. 308; TEX. GOV’T CODE ANN. § 21.001; Arndt v. Farris, 633 S.W.2d
497, 499 (Tex. 1982); Hines, 231 S.W.3d at 553. The trial court’s authority is
limited though; after its plenary power over a judgment expires, it “may not issue an
order that is inconsistent with the final judgment or constitutes a material change to
the judgment.” Hines, 231 S.W.3d at 553.
III. Judgment Nunc Pro Tunc – Judicial vs. Clerical Error
After a trial court loses it jurisdiction over a judgment, it can correct only
clerical errors in the judgment by judgment nunc pro tunc. Escobar, 711 S.W.2d at
231. “In this regard, the trial court has plenary power to correct a clerical error made
in entering final judgment.” Id. (emphasis original). “However, the trial court cannot
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correct a judicial error made in rendering a final judgment.” Id. (emphasis original).
A typographical or drafting error in the final judgment thus does not amount to a
clerical error. See Rawlins v. Rawlins, 324 S.W.3d 852, 856 (Tex. App.—Houston
[14th Dist.] 2010, no pet.). A clerical error is a discrepancy between the entry of a
judgment in the record and the judgment that was actually rendered. In re
Guardianship of Winn, 372 S.W.3d 291, 300 (Tex. App.—Dallas 2012, no pet.).
The focus is therefore on the actions of the court, not the parties. Thus, the
mere fact that the parties entered into an MSA or filed it with the court, without
more, does not translate that act into the entry of a judgment thereon by the court. A
judicial error is an error which occurs in the rendering as opposed to entering of a
judgment. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970)
(emphasis added). If the judgment entered is the same as the judgment rendered,
regardless of whether the rendition was incorrect, a trial court has no nunc pro tunc
power to correct or modify the entered judgment after its plenary power expires.
Hernandez v. Lopez, 288 S.W.3d 180, 187 (Tex. App.—Houston [1st Dist.] 2009,
no pet.).
When deciding whether a correction is a judicial or a clerical error, we look
to the judgment actually rendered, not the judgment that should or might have been
rendered. Escobar, 711 S.W.2d at 231. A judgment is “rendered” when the decision
is officially announced either orally in open court or by memorandum filed with the
clerk. Comet, 450 S.W.2d at 58. On the other hand, a judgment is “entered” after
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being signed by the trial court judge. Collin Cty. Appraisal Dist. v. Ne. Dallas
Assocs., 855 S.W.2d 843, 847 (Tex. App.—Dallas 1993, no writ).
The nunc pro tunc requirement is satisfied only if there is some evidence that
the trial court had, at some point before the original order was entered, rendered
judgment inconsistent with the language actually entered in the original order.
Hernandez, 288 S.W.3d at 186. If nothing in the record shows that there is a
discrepancy between the judgment as rendered and the judgment as entered, we are
compelled to hold that the error in the signed final judgment was a judicial error and
thus a judgment nunc pro tunc cannot stand. Rawlins, 324 S.W.3d at 856–57.
IV. Analysis
The critical issue in this case is when the judgment of the trial court was
rendered. There is no evidence in the record before us that sometime before the trial
court signed the Original Judgment it had rendered a judgment with a seven-year
payment provision either orally in open court or by memorandum filed with the
clerk. Contrary to Husband’s assertion, the fact that the parties may have filed the
MSA with the court prior to the entry of judgment is not evidence that the trial court
had orally “rendered” judgment on that agreement prior to signing the Original
Judgment. The filing of the MSA is simply an act of the parties, not the court.
We conclude, therefore, that rendition of the trial court’s judgment is reflected
in the September 16, 2014 Original Judgment. See Dikeman v. Snell, 490 S.W.2d
183, 184 (Tex. 1973) (orig. proceeding); Yabarra v. Hernandez, No. 05-98-01238-
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CV, 2001 WL 287041, at *2 (Tex. App.—Dallas March 26, 2001, no pet.). When,
as here, there is no difference between the judgment as rendered and the judgment
as entered, any error in the judgment is judicial error, and a judgment nunc pro tunc
after plenary jurisdiction expires is improper. America’s Favorite Chicken Co. v.
Galvan, 897 S.W.2d 874, 878 (Tex. App.—San Antonio 1995, writ denied). Rather,
the legal error, if any, in the judgment is subject to correction by new trial or appeal
or, perhaps, in equity.
Accordingly, we sustain Wife’s first issue and pretermit consideration of her
second issue urging the Nunc Pro Tunc Judgment was improper because the Original
Judgment included a provision that in the event of any differences between the
parties’ MSA and the final decree, the final decree will control. TEX. R. APP. P. 47.1.
CONCLUSION
We understand why the trial court entered the Nunc Pro Tunc Judgment, but
it was not the proper vehicle through which to make a substantive change to the
Original Judgment as it was rendered. Because the trial court erroneously entered a
judgment nunc pro tunc to correct a judicial error, we vacate the Nunc Pro Tunc
Judgment and reinstate the Original Judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
210132F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF C.D.G., On Appeal from the 416th Judicial
A.D.G. AND L.M.G., CHILDREN, District Court, Collin County, Texas
Trial Court Cause No. 416-55585-
No. 05-21-00132-CV 2013.
Opinion delivered by Justice
Schenck. Justices Osborne and Smith
participating.
In accordance with this Court’s opinion of this date, we VACATE the January
7, 2021, Nunc Pro Tunc Final Decree of Divorce and REINSTATE the Final Decree
of Divorce.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 15th day of July 2022.
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