                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-12-00331-CV
                                 ________________________

                               BERNARDO REYES, APPELLANT

                                                 V.

                                   OLGA REYES, APPELLEE



                              On Appeal from the 320th District Court
                                      Potter County, Texas
                  Trial Court No. 67,095-D; Honorable Don Emerson, Presiding


                                            June 3, 2014

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Appellant, Bernardo Reyes, appeals the trial court’s Corrected Nunc Pro Tunc

Order [sic] Final Decree of Divorce signed on May 1, 2012.1 Presenting two issues, he

maintains (1) the trial court erred in granting Appellee’s, Olga Reyes’s, request for the




       1
          A nunc pro tunc decree was signed on April 20, 2012, but was mistakenly dated “2014.” Hence,
the corrected nunc pro tunc decree.
nunc pro tunc decree and (2) even if the trial court correctly signed the nunc pro tunc

decree, it erred in creating a new start date for payment of child support. We affirm.


                                      BACKGROUND


       Bernardo and Olga began divorce proceedings in 2003, and at the time, had a

twelve-year-old daughter. On November 30, 2004, the trial court announced in open

court it was granting the divorce and ordered, among other things, that Bernardo pay

Olga $230 per month for child support. After years of procedural delays, on March 20,

2007, the trial court reduced its pronouncement to writing and signed a final decree of

divorce. The parties were appointed joint managing conservators, and Olga was given

the right to establish her daughter’s primary residence. The decree, however, ordered

her to pay Bernardo, the non-custodial parent, child support. Specifically, the decree

recited:


               IT IS ORDERED that OLGA REYES is obligated to pay and shall
       pay to BERNARDO REYES child support of $230.00 per month, with the
       first payment being due and payable on April 1, 2006 and a like payment
       being due and payable on the 1st day of each month thereafter until the
       first month following the date of the earliest occurrence of one of the
       events specified below . . . .

       In January 2010, Olga filed a document entitled “Motion for Enforcement of Child

Support Order and Motion for Clarification of Child Support Order and/or Motion for

Judgment Nunc Pro Tunc.” The motion sets forth the relevant portions of the 2007

decree that ordered her to pay child support and have it withheld from her earnings.

She asserted Bernardo was in arrears in the amount $10,580.            By the Motion for




                                            2
Judgment Nunc Pro Tunc, she alleged Bernardo should have been ordered to pay child

support to her as of December 1, 2006.2


        Following a hearing on Olga’s motions, the trial court entered a corrected nunc

pro tunc decree changing the name of the parent responsible for paying child support

from Olga to Bernardo. Findings of Fact and Conclusions of Law were entered in which

the trial court found:


        E. It is the standard practice of the court, except when exigent
           circumstances are shown by one or both parties, to award child
           support to the party having the right to establish the primary residence
           of the child or children. In this case there is no evidence that any
           exigent circumstances exist that would cause the court to deviate from
           the accepted practice.

        F. It is clearly manifested by the official court report’s [sic] audio recording
           of the hearing on November 20, 2004, and a transcription of that audio
           recording, that the court specifically ordered Bernardo Reyes to pay to
           Olga Reyes the amount of $230 per month in child support.

        G. The evidence is clear and convincing that on November 20, 2004, in
           open court, judgment was rendered ordering Bernardo Reyes pay to
           Olga Reyes the sum of $230 per month as child support.

        H. The error in the judgment signed on March 20, 2007, ordering Olga
           Reyes to pay Bernardo Reyes $230 child support each month was a
           clerical error.

        By two issues, Bernardo challenges the validity of the trial court’s Corrected

Nunc Pro Tunc Order [sic] Final Decree of Divorce and findings of fact entered in

support thereof. First, he maintains the trial court erred in signing the nunc pro tunc

decree because the changes made were substantive and therefore, not clerical. Next,

he argues that if a change in the obligor is upheld, error remains because the trial court
        2
           In 2011, a confirmation on Judgment on Arrears in the amount of $11,572.45 was entered in
favor of the Office of Attorney General and against Appellee on her obligation to pay child support. The
judgment included an order to withhold income to satisfy the delinquent child support. The suit for child
support was later non-suited by the Attorney General.

                                                   3
arbitrarily changed the starting date for commencement of child support payments from

April 1, 2006, to December 1, 2004. We disagree.


                                            STANDARD OF REVIEW


         On expiration of a trial court’s plenary power, a judgment cannot be set aside.

TEX. R. CIV. P. 329b(f). However, the trial court may at any time correct a clerical error

in the record of a judgment and render judgment nunc pro tunc under Rule 316 of the

Texas Rules of Civil Procedure.3 Id. A clerical error is a mistake occurring in the

reduction of the judgment to writing, the correction of which does not result from judicial

reasoning or determination but rather an examination of whether the writing properly

reflects the judgment as actually rendered. Burgess v. Burgess, 834 S.W.2d 538, 540

(Tex. App.—Houston [1st Dist.] 1992, no writ). A judgment is “rendered” when the trial

court announces its decision in open court. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.

1976).


         Determining whether a given error is clerical or judicial is a question of law, and

the trial court’s determination of the nature of the error is not binding on an appellate

court. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968). The distinction between

clerical and judicial error does not depend on the seriousness of the error . . . but on

whether it was the result of judicial reasoning and determination. Andrews v. Koch, 702

S.W.2d 584, 585 (Tex. 1986). Substantive changes in a judgment are generally held to

be judicial errors that cannot be corrected after the trial court loses plenary power.

Finlay, 435 S.W.2d at 138-39. Section 157.423 of the Texas Family Code provides that

         3
             Rule 316 sets forth the procedure for correcting a clerical mistake in a judgment.

                                                        4
a court may not make substantive changes to an order via a motion to clarify. TEX. FAM.

CODE ANN. § 175.423 (West 2014).


                                                  ANALYSIS


       During the 2012 hearing on Olga’s motions, she testified the trial court ordered

Bernardo to pay her child support in 2004 when the decree of divorce was rendered in

open court. During his direct examination, Bernardo testified to the contrary. However,

when the trial court commented to him, “[t]he bottom line is you never paid any child

support,” Bernardo responded that he did.                  According to the record, he sent three

payments directly to San Antonio and not through the Attorney General’s office.4 Olga

confirmed he made three payments. Bernardo stated his “lawyer said not to pay no

more.” According to Bernardo, he went to his lawyer’s office because he was insistent

on paying and wanted to know why he no longer needed to pay.


       Pages twelve and thirteen of the March 20, 2007 decree regarding child support

ordered Olga to pay Bernardo and further ordered her employer to withhold her

earnings to pay child support.              However, beginning at page fifteen of the decree,

paragraph 3 provided twice that “BERNARDO REYES is ORDERED to pay as

additional child support to OLGA REYES the actual cost of participation” of their

daughter in a state child health plan as long as the daughter is participating. (Emphasis

added). The word “additional” infers that Bernardo was already obligated to pay some

child support.




       4
           The office for remittance of child support is in San Antonio.

                                                       5
        Relying on In re Ward, 137 S.W.3d 910, 913 (Tex. App.—Texarkana 2004, no

pet.), and section 157.423 of the Family Code, Bernardo asserts the changes made in

the nunc pro tunc decree are substantive and therefore, unenforceable. While we agree

that substantive changes to an order after a trial court’s plenary power expires are

unenforceable, we disagree with Bernardo’s analysis.


       A judge may rely on his personal recollection of the judgment rendered, and if he

corrects the written decree nunc pro tunc, a presumption arises that his personal

recollection supports the finding of a clerical error.         Bockemehl v. Bockemehl, 604

S.W.2d 466, 469-70 (Tex. Civ. App.—Dallas 1980, no writ).5 In the underlying case, the

trial court’s findings that it is standard practice to award child support to the party having

the right to establish the child’s primary residence and that it specifically ordered

Bernardo to pay Olga child support of $230 per month on November 20, 2004, based on

the official court reporter’s audio recording support the conclusion that clerical errors,

i.e., transposing the parties’ names, were made in the March 20, 2007 decree.


       Bernardo’s admission that he initially began making payments until told to stop

by his lawyer and his insistence to his lawyer that he pay, supports the trial court’s

findings that clerical errors were made. The trial court did not impose an obligation on

Bernardo to pay where no such obligation previously existed. To have done so would

have been a substantive change. In re Ward, 137 S.W.3d at 913.


       Regarding the change in the start date for child support payments from April 1,

2006, to December 1, 2004, is also a clerical error which did not require judicial
       5
         In Bockemehl, the terms “Petitioner” and “Respondent” had been transposed in the divorce
decree which affected conservatorship rights. Based on the trial court’s oral pronouncement when the
divorce was granted, the error was found to be clerical rather than judicial. 604 S.W.2d at 469.

                                                 6
reasoning. The trial court found that on November 20, 2004, in open court, it had

ordered Bernardo to pay Olga $230 per month. Logic dictates that payments would

commence on the first day of the following month. The errors in the March 20, 2007

decree arose from the written decree failing to properly reflect the judgment as rendered

on November 20, 2004, making the errors clerical and not the result of judicial

reasoning. Issues one and two are overruled.


                                      CONCLUSION


      We conclude the trial court did not err in granting Olga Reyes’s motion to correct

clerical errors in the March 20, 2007 decree. Accordingly, we affirm in its entirety the

Corrected Nunc Pro Tunc Order [sic] Final Decree of Divorce signed on May 1, 2012.




                                                Patrick A. Pirtle
                                                     Justice




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