Blair v. Blair (Tex.App.- Houston [1st Dist.] May 7, 2009)(Jennings)(divorce decree, alimony vs.
spousal support tax treatment, nunc pro tunc (NPT) order, clerical error vs. judicial error, discrepancy
between settlement agreement and final decree, clarification of final decree vs. modification of
judgment, res judicata)
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00686-CV
Grace Blair v. Robert Blair
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: Hon. Robert J. Kern
Opinion issued May 7, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00686-CV
__________
GRACE BLAIR, Appellant
V.
ROBERT BLAIR, Appellee
On Appeal from the 387th District Court
Fort Bend County, Texas
Trial Court Cause No. 05-DCV-141958
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. (1)
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. (2) The parties and their attorneys
signed the decree. (3) 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,
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, (4) and then stated on the
record,
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 (5) 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
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). (6) The trial court subsequently denied Grace's new trial motion and request for
findings of fact and conclusions of law.
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, (7) on appeal, Grace only directly challenges the trial court's inclusion
of the five additional paragraphs, (8) which are italicized in full above, that relate to issues of tax liability.
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." (9) 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."
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.--Houston [1st Dist.] 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.--Houston [1st Dist.] 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.--Houston [1st Dist.] 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.--Houston [1st Dist.] 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. (10)
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.--Houston [14th Dist.] 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.
Terry Jennings
Justice
Panel consists of Justices Jennings, Keyes, and Higley.
1.
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.
2.
The trial court's February 22, 2007 docket entry reads "final order and QDRO signed."
3.
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."
4.
Robert agreed to the trial court's striking of this paragraph, and this paragraph is not at issue in this
appeal.
5.
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.
6.
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.
7.
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.
8.
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).
9.
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.
10.
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).