Karen Cernoch v. Frank Cernoch
03-21-00202-CV
| Tex. App. | Apr 22, 2022Background:
- Parties executed a mediated settlement agreement (MSA) on Nov. 11, 2020 dividing marital property and requiring Karen to vacate the marital residence within 60 days; MSA provided Karen a $100,000 payment ($10,000 from counsel’s IOLTA by Nov. 18, 2020; $90,000 due when Karen vacated).
- Frank prepared a proposed final divorce decree and moved to have it entered; at the March 19, 2021 hearing the court asked whether the decree followed the MSA.
- Frank’s attorney told the court the proposed decree omitted the $100,000 payment because Frank claimed Karen failed to timely vacate and thus forfeited the payment; Frank’s counsel offered to rephrase the decree to match the MSA and the parties’ lawyers agreed on the record.
- The trial court granted Frank’s motion to enter a decree “in compliance with the MSA” and directed submission of a compliant proposed decree, but the signed written decree omitted any reference to the $100,000 payment and included a merger clause saying the decree controls over the MSA.
- Because the written decree appears to diverge from the court’s oral pronouncement and the MSA, the appellate court concluded factual questions exist (whether an oral judgment was rendered and what its terms were) and abated the appeal.
- The appellate court remanded for a transcriptional hearing to determine whether the decree incorrectly reflects the court’s judgment and, if so, whether the error is clerical and correctable by a nunc pro tunc; the trial court must create findings and produce a supplemental reporter’s and clerk’s record within 30 days.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the signed final decree conforms to the court’s oral rendition and the MSA | Karen: decree deviates from the MSA and the court’s oral grant; omitted $100,000 payment required by MSA | Frank: omission reflected forfeiture due to Karen’s failure to vacate; proposed decree otherwise complied | Court: factual question — cannot resolve on appeal; remanded for hearing to determine what judgment was and whether decree reflects it |
| Whether any discrepancy is a clerical error correctable by nunc pro tunc | Karen: if decree misstates the court’s judgment, it may be clerical and correctable | Frank: discrepancy may be a judicial error/intentional change not correctable by nunc pro tunc | Court: outlined law — clerical errors (entry errors) are correctable; judicial errors (errors in rendering) are not; trial court must decide and may correct by nunc pro tunc if clerical |
| Whether the trial court actually rendered judgment orally at the hearing | Karen: court announced granting motion to enter a decree in compliance with the MSA | Frank: may assert the signed decree reflects the court’s intended judgment | Court: whether judgment was rendered and its terms are questions of fact for the trial court to resolve on remand |
Key Cases Cited
- Vickrey v. American Youth Camps, Inc., 532 S.W.2d 292 (Tex. 1976) (final judgment based on settlement must strictly comply with the settlement)
- Texas Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162 (Tex. 2013) (distinguishing clerical errors correctable by nunc pro tunc from judicial errors)
- Escobar v. Escobar, 711 S.W.2d 230 (Tex. 1986) (judicial vs. clerical error—judicial errors cannot be corrected by nunc pro tunc)
- State v. Naylor, 466 S.W.3d 783 (Tex. 2015) (judgment is rendered when announced in open court or by written memorandum)
- Andrews v. Koch, 702 S.W.2d 584 (Tex. 1986) (clerical error defined as discrepancy between record entry and the judgment actually rendered)