in the Matter of the Marriage of Lori Elizabethi Russell and Charles Wayne Russell
556 S.W.3d 451
Tex. App.2018Background
- Lori and Charles signed an MSA on Sept. 28, 2015 allocating property (MSA gave Lori $201,000 of Charles’s 401(k) as of that date and $750 monthly for 12 months); they filed the MSA with the court.
- At a November 20, 2015 prove-up hearing Lori appeared and sought to have the divorce approved; the MSA terms were not read into the record and Charles did not attend.
- The trial court signed a final divorce decree on Nov. 23, 2015 that (1) awarded Charles all retirement sums and (2) awarded Lori a single $750 payment; the decree stated it controlled over any conflicting MSA; both parties approved the decree as to form and substance.
- The court’s plenary power expired December 24, 2015; no post-judgment motions or appeals were filed within plenary period.
- Lori moved for judgment nunc pro tunc on Apr. 13, 2016 to add the MSA terms (the $201,000 401(k) award and twelve $750 payments); on May 4, 2016 the court signed a nunc pro tunc judgment implementing those substantive changes.
- Charles moved in March 2017 to set aside the nunc pro tunc as void (or alternatively for bill of review); the trial court denied relief and Charles appealed and sought mandamus; the appellate court consolidated matters.
Issues
| Issue | Plaintiff's Argument (Charles) | Defendant's Argument (Lori) | Held |
|---|---|---|---|
| Whether the May 4, 2016 judgment nunc pro tunc was valid | The nunc pro tunc exceeded the court's authority after plenary power expired and made substantive changes, so it is void. | The nunc pro tunc simply conformed the decree to the MSA; court could correct the judgment to reflect the parties' agreement. | The nunc pro tunc attempted to correct judicial (substantive) errors after plenary power expired and was void. |
| Whether the trial court erred in refusing to set aside the nunc pro tunc | The court should have set aside the void nunc pro tunc and reinstated the Nov. 23, 2015 decree. | The nunc pro tunc properly enforced the MSA and need not be set aside. | The trial court erred in denying relief; appellate court reversed the nunc pro tunc and reinstated the original decree. |
| Whether mandamus was appropriate relief | Mandamus was sought to compel relief from a void judgment. | Lori did not contend mandamus was necessary because appeal sufficed. | Mandamus petition denied as moot because the appellate remedy resolved the dispute. |
Key Cases Cited
- Escobar v. Escobar, 711 S.W.2d 230 (Tex. 1986) (nunc pro tunc may correct clerical errors but not judicial/substantive errors)
- Dikeman v. Snell, 490 S.W.2d 183 (Tex. 1973) (attempted nunc pro tunc correcting judicial error after plenary power expired is void)
- State ex rel. Latty v. Owens, 907 S.W.2d 484 (Tex. 1995) (appellate court may declare a post-plenary void judgment void; appeal suffices though mandamus also available)
- In re A.M.C., 491 S.W.3d 62 (Tex. App.—Houston [14th Dist.] 2016) (distinguishes clerical versus judicial error; plenary-power limits on corrections)
- Shanks v. Treadway, 110 S.W.3d 444 (Tex. 2003) (substantive modification of retirement award is not correctable by nunc pro tunc; remedy is direct appeal)