Opinion
No. 01-08-00686-CV
Opinion issued May 7, 2009.
On Appeal from the 387th District Court Fort Bend County, Texas, Trial Court Cause No. 05-DCV-141958.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
MEMORANDUM OPINION
Appellant, Grace Blair, challenges the trial court's judgment nunc pro tunc entered subsequent to the parties' agreed final decree of divorce. In six issues, Grace contends that the trial court erred in entering the judgment nunc pro tunc as the decree did not "describe how either party should handle the tax liability related to the alimony payments" and the judgment nunc pro tunc added substantive provisions related to the issues of tax liability. Within her issues, Grace further contends that the trial court's docket sheet and the parties' agreed property division filed with the trial court did not "describe how either party should handle the tax liability related to the alimony payments," these provisions of the judgment nunc pro tunc were entered to correct a judicial rather than a clerical error, and the trial court did not have jurisdiction to modify the decree.
Robert Blair has also filed a motion to dismiss Grace's appeal for lack of jurisdiction, asserting that Grace had untimely filed her notice of appeal on August 8, 2008. However, as explained in Grace's response, she timely filed her new trial motion by mailing it on June 21, 2008, thirty days after the trial court had signed the judgment nunc pro tunc. See Tex. R. Civ. P. 5, 329b(a). This mailing date is reflected in the certificate of service and verification attached to Grace's new trial motion, and Grace also attached to her response the filing letter accompanying her new trial motion, postmarked June 21, 2008, as well as an affidavit. See id. Robert has not filed a reply to this response. We conclude that Grace timely filed her new trial motion, and, thus, her notice of appeal, which was filed on August 8, 2008, seventy-eight days after the final judgment was signed, was also timely filed. See Tex. R. App. P. 26.1. Accordingly, we deny Robert Blair's motion to dismiss.
We modify the trial court's judgment nunc pro tunc by deleting certain portions of the judgment nunc pro tunc and, as modified, we affirm.
Factual and Procedural Background
On September 6, 2006, Grace filed an amended original petition for divorce from Robert. On November 7, 2006, the parties filed with the trial court an agreed "property division" bearing Grace's and Robert's initials and setting forth, in significant detail, the agreed division of the parties' property and liabilities. Within the property division agreement, there is a handwritten notation, which "GB [Grace]" initialed, stating, "Robert to pay $3,368.00 per month to be [paid] out over 6 months as alimony beginning Jan 1 07 directly to Grace." (Emphasis added). The trial court, in a docket sheet entry on November 7, 2006, wrote, "Parties Attys [appeared] for trial, [motion for] continuance denied," "agreement, property division filed [with] court, divorce granted, entry 12/07/06."
On February 22, 2007, the trial court signed the parties' agreed final decree of divorce (the "decree"), stating that, "on November 7, 2006[,] the Court approved the agreement of the parties as set out herein below." The trial court found that the parties had "entered into a written agreement as contained in this decree by virtue of having approved this decree as to both form and substance," and the trial court approved "the agreement of the parties as contained" in the decree. The parties and their attorneys signed the decree. However, unlike the property division agreement, in which the parties used the term "alimony" to describe Robert's monthly payment obligation to Grace, the first paragraph of the "spousal support" provision of the decree referred to this obligation as "spousal maintenance" or "maintenance." The "spousal support" provision of the decree provided,
The trial court's February 22, 2007 docket entry reads "final order and QDRO signed."
The decree also contained a provision stating that Grace and Robert "did not appear in person" but had agreed to the terms of the decree as evidenced by their signatures and the signatures of their attorneys and a provision stating that the "making of a record of testimony was waived by the parties with the consent of the Court." The parties' signatures on the decree are not dated, and the file-stamp appearing on the decree is February 23, 2007. There is nothing on the face of the decree to otherwise indicate its date of filing, and, in his reply brief, Robert agrees that the decree signed by the trial court was not "presented to the court until February 2007."
Spousal Support
The Court finds that under the circumstances presented in this case, Grace Blair is eligible for maintenance under the provisions of Texas Family Code chapter 8. Accordingly, Robert Blair is ordered to pay as maintenance the sum of $3,368.00 per month to Grace Blair, with the first payment being due on January 1, 2007 and a like payment due and payable on the 1st day of each consecutive month thereafter until the earliest of one of the following events occurs:
1. June 1, 2007;
2. death of either [Grace Blair] or [Robert Blair];
3. remarriage of Grace Blair; or
4. further orders of the Court affecting the spousal maintenance obligation, including a finding of cohabitation by Grace Blair.
Payment shall be made by Robert Blair directly to Grace Blair by cash, cashier's check, or money order at the last known address provided to Robert Blair by Grace Blair.
IT IS FURTHER ORDERED that Robert Blair shall notify this Court and Grace Blair by U.S. certified mail, return receipt requested, of any change of address and of any termination of employment. This notice shall be given no later than seven days after the change of address or the termination of employment. This notice or a subsequent notice shall also provide the current address of Robert Blair and the name and address of his current employer, whenever that information becomes available.
(Emphasis added).
On May 22, 2008, Robert filed a motion for judgment nunc pro tunc, in which he asserted that on November 7, 2006, the case had been set for trial, the parties had entered into a property division agreement, they had filed their property division agreement with the trial court, and the trial court had granted the parties a divorce on this property division agreement. Robert further asserted that the trial court's decree of February 22, 2007 included a clerical error by using the term "maintenance" to describe Robert's monthly payment obligation to Grace rather than the term "alimony," which the parties used in their property division agreement and upon which the trial court had previously rendered judgment. At a hearing on Robert's motion for judgment nunc pro tunc, Robert's counsel reminded the trial court that, on November 7, 2006, the parties had appeared and announced ready for trial, the parties had obtained permission from the trial court to negotiate a settlement, the parties had approved a property division agreement, and the parties had submitted their property division agreement to the trial court. Robert's counsel then cited to the provision of the property division agreement providing for the monthly "alimony" payments, and Robert's counsel then stated that this provision was not contained in the subsequent decree filed with the trial court in February 2007. Robert's counsel explained that, contrary to the agreed upon "alimony" payments, the decree mistakenly referred to "spousal maintenance."
Robert' s counsel argued that the trial court should correct this clerical error in a judgment nunc pro tunc because the written decree "failed to set out the language as to the alimony." Robert's counsel cited the trial court's docket sheet as evidence that the trial court had actually rendered a judgment on November 7, 2006 on the parties' property division agreement and Robert's counsel contended that the written decree did not accurately reflect the judgment rendered because it omitted the alimony provision.
Grace did not appear at this hearing, but she did file a response, which the trial court considered. In her response, Grace asserted that Robert was complaining of a judicial rather than a clerical error, which could not be corrected in a judgment nunc pro tunc. Grace further asserted that the decree evidenced the terms agreed upon by the parties.
The trial court then considered Robert's proposed judgment nunc pro tunc. The trial court immediately struck one of the paragraphs of the proposed judgment nunc pro tunc, and then stated on the record,
Robert agreed to the trial court's striking of this paragraph, and this paragraph is not at issue in this appeal.
Based on the testimony, the evidence and all the documentation including case law before the Court today, I find that a nunc pro tunc would be . . . a proper avenue to correct that error. The settlement agreement between the parties was approved by the Court, filed in the . . . clerk's file and it is clear that [Grace] knew it was alimony. Her initials were right — almost right next to the word " alimony." So, based on that, I'm granting your nunc pro tunc. . . .
(Emphasis added). The trial court then signed the judgment nunc pro tunc, changing the references to "spousal maintenance" and "maintenance" contained in the above-quoted first paragraph of the "spousal support" provision of the decree to "alimony." However, in addition to the changes of these terms in the first paragraph, the trial court, at Robert's request, also included five entirely new paragraphs that addressed the parties' tax liabilities with respect to the alimony payments and imposed certain requirements on Grace to provide Robert with assurances that she had complied with the parties' agreement as to these tax liabilities. The "spousal support" provision of the judgment nunc pro tunc provided: Spousal Support
As illustrated below, three of these additional five paragraphs were inserted after the original second paragraph in the "spousal support" provision of the decree and two of the additional paragraphs were inserted after the original third paragraph in the "spousal support" provision of the decree. Two of the additional paragraphs in the judgement nunc pro tunc were identical.
The Court finds that under the circumstances presented in this case, Grace Blair is eligible for alimony under the provisions of Texas Family Code chapter 8. Accordingly, Robert Blair is ordered to pay as alimony the sum of $3,368.00 per month to Grace Blair, with the first payment being due on January 1, 2007 and a like payment due and payable on the 1st day of each consecutive month thereafter until the earliest of one of the following events occurs:
1. June 1, 2007;
2. death of either [Grace Blair] or [Robert Blair];
3. remarriage of Grace Blair; or
4. further orders of the Court affecting the alimony obligation, including a finding of cohabitation by Grace Blair.
Payment shall be made by Robert Blair directly to Grace Blair by cash, cashier's check, or money order at the last known address provided to Robert Blair by Grace Blair.
In accordance with section 71 of the Code, all alimony payments made under this article will be includable as income on Grace Blair's income tax returns beginning in calendar year 2007. In addition, those payments will be deductible on Robert Blair's income tax returns in accordance with section 215 of the Code beginning in the same calendar year.
All payments made under this article are taxable to Grace Blair and includable in Grace Blair's gross income, and Grace Blair agrees to report them in Grace Blair's federal income tax return and to pay all taxes due thereon. Grace Blair agrees to furnish written assurance signed by Grace Blair and by any tax return preparer that payments made under this article have been included as income in Grace Blair's federal income tax return for the applicable year. The written assurance will be given at the time the federal income tax return is filed.
Robert Blair will be entitled to deduct all payments from Robert Blair's federal income tax return.
IT IS FURTHER ORDERED that Robert Blair shall notify this Court and Grace Blair by U.S. certified mail, return receipt requested, of any change of address and of any termination of employment. This notice shall be given no later than seven days after the change of address or the termination of employment. This notice or a subsequent notice shall also provide the current address of Robert Blair and the name and address of his current employer, whenever that information becomes available.
Robert Blair will be entitled to deduct all payments from Robert Blair's federal income tax return.
These support payments undertaken by Robert Blair, Robert Blair, are entitled to qualify as contractual alimony as that term is defined in section 71(a) of the Internal Revenue Code of 1986 ("the Code"), as amended, and are intended to be includable in the gross income of Grace Blair under section 71(a) of the Code and deductible by Robert Blair under section 215(a) of the Code. All provisions relating to alimony will be interpreted in a manner consistent with that intention.
(Emphasis added). The trial court subsequently denied Grace's new trial motion and request for findings of fact and conclusions of law.
The modifications of the terms in the first paragraph of the "spousal support" provision of the judgment nunc pro tunc are italicized as are the five additional paragraphs addressing tax liability.
Judgment Nunc Pro Tunc
In six issues, Grace argues that the trial court erred in entering the judgment nunc pro tunc because the decree did not "describe how either party should handle the tax liability related to the alimony payments" and the judgment nunc pro tunc added substantive provisions related to the issues of tax liability. Within her issues, Grace asserts that the trial court's docket sheet and the parties' agreed property division filed with the trial court did not "describe how either party should handle the tax liability related to the alimony payments," these provisions of the judgment nunc pro tunc were entered to correct a judicial rather than a clerical error, and the trial court did not have jurisdiction to modify the decree. Consistent with her position in the trial court, on appeal, Grace only directly challenges the trial court's inclusion of the five additional paragraphs, which are italicized in full above, that relate to issues of tax liability.
In her response to Robert's motion for judgment nunc pro tunc, Grace specifically challenged Robert's request to include the five additional paragraphs, and she did not specifically complain of Robert's request to change the terms "spousal maintenance" and "maintenance" in the first full paragraph of "spousal support" provision of the decree to alimony. Additionally, at a hearing in the trial court, Grace Blair asserted,
Nowhere does [the property division agreement] speak of the taxation matters or the other matters that were included in the judgment nunc pro tunc. Those things that were included were a modification of this original order, without there ever having been pronounced that they were part of the original order. [Grace] never agreed to any taxation provisions in that . She agreed only to what shows on the docket sheet, the entering of the order, the divorce decree and this property settlement agreement, which shows what the alimony would be, support to the wife, beginning January 1 but never did it discuss anywhere taxation or taxation terminology in it.
(Emphasis added). Thus, Grace conceded in the trial court that she had agreed to the use of the term "alimony," she appeared to agree that the trial court had rendered a judgment prior to the decree, and she only directly challenged the inclusion of the five additional paragraphs related to tax liability in the judgment nunc pro tunc. Similar to her position in the trial court, on appeal, Grace only directly challenges these five additional paragraphs and does not appear to be directly complaining of the modification of the terms "maintenance" in the first paragraph of the "spousal support" provision of the decree to the term "alimony" in the judgment nunc pro tunc. In fact, in her appellate briefing, Grace appears to treat any modification of this terminology as immaterial, as she contends that the decree already ordered Robert to "pay certain alimony." (Emphasis added). We need not address whether the modification of the terms in the first paragraph of the "spousal support" provision of the decree has any material impact on the parties' ultimate tax obligations. Rather, we only determine whether there is evidence to support the trial court's judgment nunc pro tunc on the ground that the decree contained clerical errors.
In her briefing, Grace incorrectly refers to the inclusion of seven paragraphs in the judgment nunc pro tunc, but she clearly identifies and challenges the five additional paragraphs "related to tax liability on alimony payments" that are italicized in full in this opinion. Grace contends that these paragraphs relating "to tax liability of alimony payments ordered by the court were never included in either the final decree of divorce, the property division agreement which was filed with the court, or the docket sheet of the cause." (Emphasis added).
Robert argues that the trial court entered the judgment nunc pro tunc simply to correct a "clerical error in the decree that identified a payment as spousal support instead of alimony." Robert characterizes the five additional paragraphs contained in the judgment nunc pro tunc as merely statutory provisions defining the tax treatment of alimony, and Robert contends that, by agreeing to the term alimony, Grace necessarily agreed to these "statutory provisions that define [that] word."
We note that even the judgment nunc pro tunc still uses the term "spousal support" as the title of the disputed provision in the decree, and neither party discusses the title of this provision. Thus, we do not address the effect, if any, of the use of the term "spousal support" in the decree.
A trial court has plenary power for 30 days after a judgment is signed to grant a new trial or to vacate, modify, correct, or reform its judgment. Tex. R. Civ. P. 329b(d). Once a trial court's plenary power expires, it cannot set its judgment aside except by a bill of review for sufficient cause. Tex. R. Civ. P. 329b(f). However, a trial court may at any time correct a clerical error in the judgment by entering a judgment nunc pro tunc. Tex. R. Civ. P. 316; 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986); Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex.App. 2005, no pet.).
A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered. Barton, 178 S.W.3d at 126 (citing Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986)); Butler v. Cont'l Airlines, Inc., 31 S.W.3d 642, 647 (Tex.App. 2000, pet. denied). A clerical error does not result from judicial reasoning, evidence, or determination. Barton, 178 S.W.3d at 126. In contrast, a judicial error arises from a mistake of law or fact that requires judicial reasoning to correct. Id. "A judicial error occurs in the rendering, rather than the entering of the judgment." Id. (citing Escobar, 711 S.W.2d at 231).
A trial court can only correct the entry of a final written judgment by a judgment nunc pro tunc if the final written judgment incorrectly states the judgment actually rendered. Id. Even if a trial court incorrectly renders judgment, it "cannot alter a written judgment that precisely reflects the incorrect rendition." Id. If a trial court corrects a judicial error after its plenary power has expired, its judgment is void. Id. (citing Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973)). When deciding whether an error in a judgment is clerical or judicial, courts "must look to the judgment actually rendered and not the judgment that should have been rendered." Id. (citing Escobar, 711 S.W.2d at 231).
Whether an error is judicial or clerical is a question of law. Id. However, whether the trial court pronounced judgment orally and the terms of any pronouncement are questions of fact. Hernandez v. Lopez, No. 01-06-00901-CV, 2009 WL 793635, at *4 (Tex.App. Mar. 26, 2009, no pet. h.). "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. (citing Escobar, 711 S.W.2d at 232).
In order to properly grant a judgment nunc pro tunc, "the evidence must be clear and convincing that a clerical error was made." Barton, 178 S.W.3d at 127 (citing Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 683 (Tex.App. 1997, no writ)). "Evidence may be from oral testimony of witnesses, written documents, previous judgments, docket entries, or the trial judge's personal recollection." Id. If a trial court relies on its own personal recollection of the facts, "we presume that the court's recollection supports the finding of clerical error." Id.
Here, there is evidence in the record to support the finding that the trial court pronounced and rendered judgment on November 7, 2006 by granting the parties a divorce in accordance with their property division agreement, which was initialed by the parties and filed with the trial court. As relied upon by the trial court in the hearing on the motion for judgment nunc pro tunc, the trial court's docket sheet states that, on November 7, 2006, the trial court denied any continuances and granted the parties a divorce pursuant to the property division agreement filed with the trial court. It is undisputed that the property division agreement itself includes a handwritten notation requiring Robert to make monthly payments of "alimony" to Grace, not "spousal maintenance" or "maintenance." Even Grace appears to agree with this fact by treating any distinction between the use of the terms "alimony" and "maintenance" as immaterial.
Alimony is defined as "[a] court ordered allowance that one spouse pays to the other spouse for maintenance and support . . . after they are divorced." Black's Law Dictionary 73 (7th ed. 1999).
Moreover, Robert's attorney, at the judgment nunc pro tunc hearing, and Grace's attorney, at a subsequent hearing in the trial court, agreed that the parties had in fact submitted the agreed property division to the trial court on November 7, 2006, which required the payment of alimony, although Grace disputed that the parties reached any agreement as to the additional tax liability paragraphs. The trial court, during the judgment nunc pro tunc hearing, reviewed the property division agreement and declared that it had been "approved by the court" on November 7, 2006 in the course of granting the parties a divorce. Ample evidence was presented to support the trial court's conclusion that the use of the terms "maintenance" and "spousal maintenance" in the first paragraph of the "spousal support" provision in the decree was a clerical error.
Accordingly, we hold that the trial court did not err in entering the portion of the judgment nunc pro tunc changing the terms "maintenance" and "spousal maintenance" in the first paragraph of the "spousal support" provision in the decree to the term "alimony" in the first paragraph of the "spousal support" provision in the judgment nunc pro tunc. See Barton, 178 S.W.3d at 127 (affirming trial court's entry of judgment nunc pro tunc after finding that divorce decree "clearly did not reflect the trial court's rendition"); Delaup v. Delaup, 917 S.W.2d 411, 413 (Tex.App. 1996, no writ) (affirming entry of judgment nunc pro tunc when trial court had entered final written judgment that omitted several key aspects of settlement agreement after trial court had rendered decision orally granting divorce and approving agreement).
However, the additional five paragraphs that address tax liabilities arising out of the alimony payments and that impose, among other things, an assurance obligation upon Grace present a much different issue. Unlike the above-cited evidence that the trial court had rendered a judgment on November 7, 2006 upon the parties' agreement to impose alimony obligations, there is no evidence in the record that the trial court ever rendered a judgment prior to its signing of the decree that touched in any way upon the matters addressed in these five additional paragraphs related to tax liabilities. The property division agreement filed with and submitted to the trial court, upon which the trial court granted the divorce and rendered judgment in 2006, addresses only Robert's obligations to pay alimony. It does not provide any evidence that the trial court ever rendered a judgment on these tax liability matters. The docket sheet also makes no reference to any agreement other than the agreed property division upon which the trial court rendered judgment. Finally, the trial court did not make any statement on the record that it had any recollection that these matters were addressed in the judgment that it had previously rendered. These five additional paragraphs included in the "spousal support" provision in the judgment nunc pro tunc addressing the parties' tax liability "were both substantive and material and could not properly be accomplished by a judgment nunc pro tunc." See Riner, 976 S.W.2d at 683. In sum, there is no evidence to support the trial court's entry of the judgment nunc pro tunc in regard to these five additional paragraphs addressing, among other things, the tax liability issues.
Conclusion
Because no evidence supports the trial court's entry of the judgment nunc pro tunc in regard to the five additional paragraphs in the "spousal support" provision that address, among other things, the tax liability issues, these paragraphs of the trial court's judgment nunc pro tunc are void. Accordingly, we modify the trial court's judgment nunc pro tunc to delete these five additional paragraphs. However, because there is evidence to support the portion of the trial court's judgment nunc pro tunc in which the trial court corrects the first paragraph of the "spousal support" provision of the decree by substituting the term "alimony" in place of the terms "spousal maintenance" and "maintenance," we affirm the trial court's judgment nunc pro tunc in this respect. We affirm the trial court's judgment nunc pro tunc as modified.