                              NUMBER 13-11-00200-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI—EDINBURG

____________________________________________________

              IN THE MATTER OF THE MARRIAGE OF
            STARLA SNEAD AND TRAVIS LEE SNEAD
   AND IN THE INTEREST OF D.L.S. AND W.A.S., MINOR CHILDREN


                 On appeal from the 75th Judicial District Court
                           of Liberty County, Texas
____________________________________________________

                             MEMORANDUM OPINION1

                  Before Justices Garza, Benavides, and Perkes
                    Memorandum Opinion by Justice Perkes

        Appellant Travis Lee Snead appeals the trial court’s “Final Decree of Divorce

Nunc Pro Tunc” and also attempts to appeal from a contempt order enforcing visitation




        1
          This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
provisions in the original divorce decree.2 The divorce decree and contempt order are

both dated November 30, 2010.

       By two issues, Travis argues that: (1) because he was not in contempt if the

decree nunc pro tunc is considered, the trial court committed reversible error when it

signed the written order of contempt against him, moments after it corrected the original

divorce decree by entering the “Final Decree of Divorce Nunc Pro Tunc;” and (2) even

though the trial court stated that the effective date of the decree nunc pro tunc was

November 30, 2010, the decree actually relates back to the date of the original “Final

Decree of Divorce,” dated March 9, 2009. We modify the effective date language in the

“Final Decree of Divorce Nunc Pro Tunc” and affirm that judgment as modified. We

dismiss Travis’s appeal from the contempt action for lack of jurisdiction.

                                         I. BACKGROUND

       On November 11, 2000, Travis and Starla Snead were married. Two children

were born of this marriage, D.L.S. and W.A.S. On March 9, 2009, a decree of divorce

was signed. No appeal was taken after its entry.

       On August 13, 2009, Travis filed a motion for judgment nunc pro tunc arguing

that the decree of divorce included three scrivener’s errors which we summarize below:

       (a) Travis was supposed to get extended weekend visits in that his
           visitation time was supposed to end at 8:00 a.m. on Monday;

       (b) Starla received a $ 5,000.00 judgment against Travis; there was to be
           no personal judgment against Travis but money was to come from his
           parents if they ever paid it;

       (c) Travis was to receive phone calls from his children each day between
           7:00 p.m. and 8:00 p.m., or be able to call them during that time.


       2
         In order to protect the minor children’s identities, we use aliases to identify the children
mentioned in this appeal. See generally TEX. R. APP. P. 9.8.

                                                 2
       On August 31, 2010, Starla filed a petition for enforcement of possession order

and final decree of divorce by contempt. In her petition, Starla alleged, among other

things, that Travis failed to timely return the children on multiple occasions. On October

25, 2010, the trial court held a hearing on Starla’s enforcement petition. The court

found that Travis failed to timely return the children on multiple occasions, and held

Travis in contempt. The trial court sentenced Travis to serve five days in jail for each of

the violations, but suspended the sentence, placed Travis on probation for a period of

one year, and awarded Starla $1,250 in attorney’s fees.

       On November 30, 2010, the trial court held a hearing on Travis’s motion for

judgment nunc pro tunc. During this hearing, Travis argued that the divorce decree was

not entered in accordance with the verbal agreement which had been recited into the

record during the divorce hearing. The trial court granted Travis’s motion for judgment

nunc pro tunc, but further specified by means of an interlineation on the face of the

judgment, that the effective date of the judgment nunc pro tunc would be November 30,

2010. In other words, the judgment nunc pro tunc would not apply retroactively to the

date of the original decree of divorce. In addition, the trial court signed the order of

contempt notwithstanding the fact that it was based on conduct that was permitted

under the judgment nunc pro tunc.

                                     II. DISCUSSION

   A. Appeal from Judgment Nunc Pro Tunc

       By his second issue, Travis argues that the divorce decree nunc pro tunc should

be retroactively effective as of March 9, 2009 (date of original decree of divorce), and




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not November 30, 2010 (date of judgment nunc pro tunc).3 The trial court wrote on the

divorce decree nunc pro tunc that, “[t]he portions of the order revised are effective from

& after this date.” As set forth below, we agree with Travis that the effective date of the

divorce decree nunc pro tunc is March 9, 2009.

        A party may appeal from an order granting judgment nunc pro tunc, provided he

may only raise complaints that would not apply to the original judgment. See TEX. R.

APP. P. 4.3(b); Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380,

390–91 (Tex. 2008).          The proper effective date of a judgment nunc pro tunc is a

question of law, and therefore, we review Travis’s first issue under a de novo standard

of review. See Tex. Parks & Wildlife Dep’t v. Morris, 129 S.W.3d 804, 807 (Tex. App.—

Corpus Christi 2004, no pet.) (providing that a question of law is subject to de novo

review on appeal); Brooks v. Brooks, 864 S.W.2d 645, 647 (Tex. App.—Tyler 1993, no

writ) (holding appeal from divorce decree nunc pro tunc challenging trial court’s

authority to enter certain provisions presented only questions of law).

        A judgment nunc pro tunc may be made to correct a clerical error that was made

in entering judgment, but may not be used to correct a judicial error in rendering

judgment.     See TEX. R. CIV. P. 316; Daniels v. Comm'n for Lawyer Discipline, 142

S.W.3d 565, 572 (Tex. App.—Texarkana 2004, no pet.). A judgment nunc pro tunc

does not disturb the initial judgment rendered by the trial court; it merely brings the court

records into conformity with it. Daniels, 142 S.W.3d at 572 (citing Lone Star Cement

Corp. v. Fair, 467 S.W.2d 402 (Tex. 1971)). Accordingly, a judgment nunc pro tunc,
        3
            At the very end of the portion of his brief addressing issue two, and just before his prayer for
relief, Travis states, “Ultimately, the retroactive nature of the Judgment Nunc Pro Tunc invalidates and/or
nullifies the improper and erroneous Order of Contempt issued by the trial court against the Appellant,
Travis Lee Snead, for his violation of what all parties agreed was an invalid and incorrectly transcribed
order.” We address this attempted challenge to the contempt order below in the portion of this
memorandum opinion that addresses appellant’s first issue.

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although signed later, relates back to the date of the original judgment and is effective

as of the earlier date. Id. at 573; see also In re M.V., No. 14-08-00418-CV, 2009 WL

6407539, at *3 (Tex. App.—Houston [14th Dist.] Sep. 1, 2009, no pet.) (mem. op.).

      In this case, the trial court entered the divorce decree nunc pro tunc to correct

clerical errors in the transcription of the original divorce decree entered on March 9,

2009. None of the clerical errors corrected pertained to the date of the original divorce

decree. We conclude that Travis is correct that the effective date of the “Final Decree of

Divorce Nunc Pro Tunc” is March 9, 2009. See e.g., Daniels, 142 S.W.3d at 573; In re

M.V., 2009 WL 6407539, at *3. We sustain Travis’s second issue on appeal.

B. Jurisdiction to Consider Contempt Order

      By his first issue, Travis seeks to appeal the trial court’s contempt order signed

the same day that the judgment nunc pro tunc was signed. Courts of appeals generally

do not have jurisdiction to review contempt orders by way of ordinary appeal. See In re

M.E.G., 48 S.W.3d 204, 209 (Tex. App.—Corpus Christi 2000, no pet.); In re A.M., 974

S.W.2d 857, 861 (Tex. App.—San Antonio 1998, no pet.); Metzger v. Sebek, 892

S.W.2d 20, 54–55 (Tex. App.—Houston [1st Dist.] 1994, writ denied). This is true even

where the contempt order is appealed, along with a judgment that is appealable. See In

re M.E.G., 48 S.W.3d at 209; In re Gonzalez, 993 S.W.2d 147, 157 (Tex. App.—San

Antonio 1999, no pet.); Sebek, 892 S.W.2d at 54–55. Habeas corpus is the proper form

of relief from contempt orders by which confinement is ordered. See A.M., 974 S.W.2d

at 861. The Supreme Court of Texas has held “[c]ontempt orders that do not involve

confinement cannot be reviewed by writ of habeas corpus, and that the only possible




                                            5
relief is a writ of mandamus.” See In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Rosser

v. Squier, 902 S.W.2d 962, 962 (Tex. 1995); In re M.E.G., 48 S.W.3d at 209.

      Travis’s first issue on appeal pertains solely to the trial court’s order of contempt.

This court lacks jurisdiction to review a contempt order by way of ordinary appeal, even

if the contempt order is appealed along with an appealable judgment. See M.E.G., 48

S.W.3d at 209. Accordingly, we do not have jurisdiction to consider Travis’s first issue.

                                        III. CONCLUSION

      We dismiss appellant’s attempted appeal from the trial court’s contempt order for

lack of jurisdiction. We modify the trial court’s Final Decree of Divorce Nunc Pro Tunc

to delete the line which states, “The portions of the order revised are effective from and

after this date.” See TEX. R. APP. P. 43.2(b). In its place we substitute, “This Final

Decree of Divorce Nunc Pro Tunc is effective as of March 9, 2009.” See id. We affirm

the trial court’s “Final Decree of Divorce Nunc Pro Tunc” as modified.



                                         _________________________________
                                         Gregory T. Perkes
                                         Justice

Delivered and filed the
16th day of August, 2012.




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