John Whitnel Thompson v. Vicky Jo Thompson--Appeal from 90th District Court of Stephens County

11th Court of Appeals

Eastland, Texas

Opinion

John Whitnel Thompson

Appellant

Vs. No. 11-01-00174-CV B Appeal from Stephens County

Vicky Jo Thompson

Appellee

John Whitnel Thompson and Vicky Jo Thompson were divorced on March 17, 1999. The court rendered its divorce decree on April 15, 1999. The divorce decree expressly provided that spousal maintenance to Vicky would terminate upon John=s remarriage. John remarried in June 2000 and stopped paying spousal maintenance payments. The trial court then issued an order reinstating spousal maintenance, ruling that it had inadvertently terminated the spousal support obligation upon John=s remarriage, rather than Vicky=s remarriage. John appeals the order entered May 1, 2001, granting Vicky=s motion to modify spousal maintenance. We vacate the order of May 1, 2001, and dismiss the cause.

John presents the following six issues for review: (1) whether the trial court erred in rewriting provisions as contained in the amended final decree of divorce signed and entered on September 30, 1999, dealing with spousal maintenance; (2) whether the trial court had jurisdiction to enter an order clarifying, amending, and changing those provisions dealing with spousal maintenance; (3) whether the trial court erred in amending and correcting the amended final decree of divorce in the absence of compliance with TEX.R.CIV.P. 316; (4) whether the trial court erred in its Findings of Fact Nos. 7 thru 12 because the findings attempt to make the court=s error in its rendition of judgment on April 15, 1999, a clerical error; (5) whether the trial court erred in its Conclusions of Law Nos. 1 thru 7 because (a) there was no clerical error in either the court=s rendition of judgment or in the court=s entry of judgment which would allow the rewriting of the final judgment, (b) a motion to modify spousal maintenance permitted by TEX. FAM. CODE ANN. ' 8.008 (Vernon 1998) is restricted to reduction of existing spousal maintenance, (c) the trial court had no jurisdiction of the parties or subject matter with respect to reinstating spousal support, (d) Vicky did not allege grounds for a clarification order as required by TEX. FAM. CODE ANN. ' 9.008 (Vernon 1998), (e) there was no error in entry of the judgment since the judgment is consistent with the rendition and, therefore, any error in the rendition is judicial error, not a clerical error, so that the previous termination of John=s spousal maintenance obligation upon his remarriage was a judicial error, not a clerical error; (6) whether the trial court erred in refusing to grant John=s Request for Additional Findings of Fact Nos. 1 thru 6, 8 thru 11, and 13 thru 20 since all such findings relate to the ultimate and controlling issue in this case.

The determinative issue in each of John=s six issues is whether the error in the judgment was a clerical error or judicial error.

A trial court can modify, correct, or reform the judgment within 30 days after the judgment is signed. TEX.R.CIV.P. 329b(d). However, errors in rendition are judicial errors and cannot be corrected after the court=s plenary power has expired. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986); In re Wal-Mart Stores, Inc., 20 S.W.3d 734, 738 (Tex.App. - El Paso 2000, orig. proceeding). Clerical errors can be corrected by judgment nunc pro tunc after the court=s plenary power has expired. Andrews v. Koch, supra at 585. To be subject to correction as a clerical error,[1] the judgment must incorrectly state the judgment actually rendered. H.E. Butt Grocery Company v. Pais, 955 S.W.2d 384, 388 (Tex.App. - San Antonio 1997, no pet=n). Even an unintended rendition of judgment does not constitute an error in the entry or recording of the judgment. H.E. Butt Grocery Company v. Pais, supra at 388. Errors in rendered and entered judgments are not clerical merely because they grow out of clerical errors. Wood v. Griffin & Brand of McAllen, 671 S.W.2d 125, 130 (Tex.App. - Corpus Christi 1984, no writ).

In determining whether the error is judicial or clerical, the critical inquiry is not what judgment might or ought to have been rendered, but only what judgment was actually rendered. Wood v. Griffin & Brand of McAllen, supra at 131. If a court renders a judgment incorrectly, it cannot alter a written judgment that precisely reflects the incorrect rendition by means of a judgment nunc pro tunc. Alford v. Whaley, 794 S.W.2d 920, 922 (Tex.App. - Houston [1st Dist.] 1990, no writ). The critical inquiry is when the judgment was rendered. Wood v. Griffin & Brand of McAllen, supra at 129. A judgment is rendered when the trial court=s decision is announced either orally in open court or by memorandum filed with the clerk. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976). In this case, the judgment was rendered in the court=s April 15, 1999, letter.

The judgment referred to Vicky as petitioner and John as respondent. The judgment stated: AThis obligation shall terminate upon the earlier of three years from this date or upon the death, remarriage or cohabitation of respondent.@ (Emphasis added) The judgment of divorce was amended on September 30, 1999. The error was carried forward. In the amended final decree of divorce, the following portion is at issue:

IT IS ORDERED that John Whitnel Thompson pay as maintenance to Vicky Jo Thompson the sum of $1,500 per month, with the first payment being due the 15th day of May, 1999, and a like amount being due the 15th day of each month thereafter until the earliest of one of the following events occurs: (1) April 15, 2002; or (2) the death of Respondent; or (3) the remarriage of Respondent; or (4) the cohabitation of Respondent with another person in a permanent place of abode on a continuing, conjugal basis.

On July 12, 2000, Vicky filed a motion to modify spousal maintenance and asked the court to change the terms of termination of spousal maintenance to the earlier of:

(1) April 15, 2002; or (2) the death of either JOHN WHITNEL THOMPSON or VICKY JO THOMPSON; or (3) the remarriage of VICKY JO THOMPSON; or (4) the cohabitation of VICKY JO THOMPSON with another person in a permanent place of abode on a continuing, conjugal basis.

At the conclusion of the hearing on the motion, the court rendered judgment by a letter dated March 16, 2001, which stated: AThere is no question that the intent of the court was that the spousal maintenance was to terminate upon the death, remarriage, or cohabitation of Mrs. ThompsonBnot Mr. Thompson.@ The trial court explained that the error in rendition occurred because of the switching of the parties as petitioner and respondent when John took a nonsuit. The trial court ordered that John=s obligation to pay spousal maintenance be reinstated and that it terminate upon the death, remarriage, or cohabitation of Vicky. A second letter issued by the trial court stated that the court=s intent was to reinstate the spousal maintenance as if there had been no interruption or question.

In its order, the trial court changed the provision to reflect that the maintenance was to terminate upon the earliest of:

(1) April 15, 2002; or (2) the death of VICKY JO THOMPSON; or (3) the remarriage of VICKY JO THOMPSON; or (4) the cohabitation of VICKY JO THOMPSON with another person in a permanent place of abode on a continuing, conjugal basis.

Also, the trial court wrote: AThe Court finds that certain terms of the prior decree in this case were the result of inadvertent error on the part of the Court and should be clarified.@ This error, while inadvertent, is a judicial error.

We have reviewed all of the record looking for any indicia that the judgment that was rendered is not correctly represented in the judgment signed. First, we have obtained and reviewed the reporter=s record of the trial court=s pronouncement from the bench at the conclusion of testimony. At the divorce hearing, the following conversation took place:

[COUNSEL]: Your Honor, are you going to grant the divorce today?

THE COURT: Yeah, I can do that. No, I=m not. I=ll grant the divorce, but I=m not going to say on what grounds yet. The court will grant the divorce, take under advisement the grounds on which that divorce will be granted, and the possession, access, conservatorship and support of the children as well as the division of property and allocation of debts.

Next, we have reviewed the trial court=s docket sheet and entries. The docket entry for April 15, 1999, reads as follows:

Parties as joint Mng Conservators of children w/ Pet to determine residence of Sunny Thompson and Respondent to determine residence of Levi Thompson; No CS; Std Poss Order Visitation; Resp maintain health insurance on children; Property & Debts per letter ruling on 4-15-99.

The amended divorce decree, the final judgment in this case, states that John shall determine the residence of Levi and that John shall provide health insurance. Consequently, the docket sheet identifies John as the respondent, not Vicky. In the letter of April 15, 1999, the agreement specifically identifies the parties: AVicky Jo Thompson will be referred to as Petitioner and John Whitnel Thompson will be referred to as Respondent.@

Unlike the cases of Newsom[2] and Dickens[3] relied upon by the dissent, there is no evidence contained in the pronouncement from the bench, from the court=s docket sheet, or the court=s letter to the parties from which we could determine that the final written judgment incorrectly stated the judgment actually rendered. This error, while unfortunate, is a judicial error. Because the error complained of is a judicial error, the trial court had no jurisdiction to modify its judgment after the lapse of its plenary power. The first issue is sustained. Consequently, we need not specifically address the remaining issues.

Because the trial court was without jurisdiction, the order of May 1, 2001, is vacated, and the cause is dismissed.

March 21, 2002 W. G. ARNOT, III

Do not publish. See TEX.R.APP.P. 47.3(b). CHIEF JUSTICE

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

Dissenting Opinion

I respectfully dissent. I would uphold the trial court=s order regarding spousal maintenance because it merely corrected a clerical mistake in the judgment. TEX.R.CIV.P. 316 provides that a trial court may, after its plenary power has expired, correct clerical mistakes in a judgment Aaccording to the truth or justice of the case.@ A clerical error is a mistake that arises in the entry, rather than the rendition, of a judgment but does not result from judicial reasoning or determination. Escobar v. Escobar, 711 S.W.2d 230 (Tex.1986); Knox v. Long, 257 S.W.2d 289, 292 (Tex.1953). The determination of whether the mistake was clerical is a question of law. Escobar v. Escobar, supra.

A court may award spousal maintenance under certain circumstances provided for in TEX. FAM. CODE ANN. ' 8.001 et seq. (Vernon 1998 & Supp. 2002). Section 8.007 provides the following grounds upon which the maintenance payments shall terminate:

(a) The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the party receiving maintenance.

(b) After a hearing, the court shall terminate the maintenance order if the party receiving maintenance cohabits with another person in a permanent place of abode on a continuing, conjugal basis. (Emphasis added)

The party receiving maintenance in this case was Vicky Jo Thompson. The trial court found that it intended to provide for the maintenance to continue until Vicky=s remarriage or cohabitation but that it made a clerical mistake by using the term Arespondent@ to refer to Vicky. Although she subsequently became realigned as the petitioner, Vicky was originally the respondent in the divorce proceedings.

In a similar case, the Austin Court of Appeals held the error to be clerical in nature. Newsom v. Petrilli, 919 S.W.2d 481 (Tex.App. - Austin 1996, no writ). The Newsom court upheld a trial court=s judgment nunc pro tunc and held that the use of the word ARespondent,@ rather than APetitioner,@ in the divorce decree was a clerical error. Newsom v. Petrilli, supra at 482-83; see also Dickens v. Willis, 957 S.W.2d 657 (Tex.App. - Austin 1997, no pet=n). I would follow the Newsom opinion and hold that the error in this case was clerical.

TERRY McCALL

JUSTICE

March 21, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]TEX.R.CIV.P. 316 provides:

Clerical mistakes in the record of any judgment may be corrected by the judge in open court according to the truth or justice of the case after notice of the motion therefor has been given to the parties interested in such judgment, as provided in Rule 21a, and thereafter the execution shall conform to the judgment as amended.

[2]Newsom v. Petrilli, 919 S.W.2d 481 (Tex.App. - Austin 1996, no writ).

[3]In Dickens v. Willis, 957 S.W.2d 657 (Tex.App. - Austin 1997, no pet=n), the Austin court misstates the standard of review. The court correctly cites Escobar v. Escobar, 711 S.W.2d 230 (Tex.1986), and Finlay v. Jones, 435 S.W.2d 136 (Tex.1968), for the proposition that whether an error is clerical or judicial is a question of law. Then the court in Dickens stated:

The question, however, becomes one of law "only after the trial court factually determines whether it previously rendered judgment and the judgment's contents." An appellate court may review the trial court's factual determination only for legal and factual insufficiency of the evidence. (Citation omitted)

What the court in Escobar v. Escobar, supra at 232, actually said was:

However, whether the court pronounced judgment orally and the terms of the pronouncement are questions of fact. 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. (Citations omitted)

Applying the standard of review, the court in Dickens stated:

After reviewing all the evidence in the record for both legal and factual sufficiency, we conclude that the evidence sufficiently supports the finding that the error in the original divorce decree was clerical not judicial.

On appeal, appellate courts would never apply a factual sufficiency review to a question of law. Appellate courts may review for factual sufficiency the trial court's factual determinations on whether a judgment had been rendered. Escobar v. Escobar, supra. However, the final question of whether an error is clerical or judicial is a question of law. Although this standard is misapplied, we disagree with neither the reasoning or holdings in Dickens or Newsom.