                             NUMBER 13-07-00448-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


RHONDA LYNN GILCHRIST,                                                       Appellant,

                                            v.

MARION SCOTT GILCHRIST,                                                        Appellee.


                    On appeal from the 88th District Court
                           of Tyler County, Texas


                          MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Vela

       Appellant, Rhonda Gilchrist, appeals from the trial court’s order granting a judgment

nunc pro tunc in a divorce action. By two issues, Rhonda contends that; (1) the trial court

erred in granting the judgment nunc pro tunc because the mistake in the final decree of
divorce was a judicial error not a clerical one; and (2) this Court should award her the

amount of the bank balance on the date the mediation agreement was signed. We reverse

and render.

                                      I. BACKGROUND

       Rhonda Lynn Gilchrist and Marion Scott Gilchrist were married on May 18, 1985,

and separated on August 1, 2004. In August 2004, Rhonda filed for divorce. The couple

had two children, but only one was still in high school at the time of the divorce.

       The parties participated in mediation and signed a mediation agreement on

November 7, 2005. The mediation agreement gave Rhonda “the Tahoe, the Mustang, and

the Kawasaki Mule as well as the Chapparal boat, the Pontoon boat, her IRA’s, accounts

in her name, one half (½) the family photographs.” She was also given $185,000 to be

paid over ten years at five percent interest and her jewelry. All real and personal property

not explicitly given to Rhonda was given to Scott. As part of this mediation agreement,

Scott completed an inventory of community and separately owned property. Rhonda did

not prepare an inventory because Scott maintained the family finances. In the inventory,

sworn to by Scott, he characterized Citizens State Bank account number 370394 as “WSP”

or wife’s separate property. When the inventory was amended after the mediation, the

account was still characterized as “WSP”. This amended inventory included a column

marked “wife” and one marked “husband”; there was a “w” in the wife column next to

Citizens State Bank account number 370394. Scott, however, contends that his ex-wife

should not have received this account.

       The final divorce decree awards Rhonda “the funds on deposit, together with

accrued but unpaid interest, in the following banks, savings institutions, or financial

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institutions in the sole control of wife, including but not limited to: a. Citizens State Bank,

account number DDA 370394.” After the mediation agreement and the final judgment

were entered, Scott continued to use account 370394. He deposited money into the

account and paid alimony to Rhonda from the account. When Scott discovered that

Rhonda believed the account was hers, he closed it. Rhonda then filed a motion for

enforcement of property division. Scott responded by filing a motion for judgment nunc pro

tunc that was granted. This appeal followed.

                      II. SUBSTANTIVE LAW    AND   STANDARD OF REVIEW

       “After the trial court loses its jurisdiction over a judgment, it can correct only clerical

errors in the judgment by judgment nunc pro tunc.” Escobar v. Escobar, 711 S.W.2d 230,

231 (Tex. 1986). “A judicial error occurs in the rendering as opposed to the entering of

judgment.” Id. (emphasis in original). A clerical error does not result from judicial

reasoning or determination. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986). A

clerical error is a discrepancy between the entry of judgment in the record and the

judgment that was actually rendered. Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex.

App.–Houston [1st Dist.] 2005, no pet.). Whether judgment was rendered and the nature

of that judgment are questions for the trial court. Avila v. Lone Star Radiology, 183 S.W.3d

814, 821 (Tex. App.–Waco 2005, no pet.). Whether an error is clerical or judicial is a

matter of law, therefore the trial court’s determination as to the nature of the error is not

binding on this Court. Tex. Dep’t of Pub. Safety v. Moore, 51 S.W.3d 355, 358 (Tex.

App.–Tyler 2001, no pet.).




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                                        III. ANALYSIS

       Rhonda raises two issues. First, she claims the trial court erred in granting Scott’s

motion for judgment nunc pro tunc. Second, she claims that she should be awarded the

balance of Citizens State Bank account number 370394 as of the date the mediation

agreement was signed, rather than as of the date the final decree of divorce was signed.

       Errors in a written judgment are not automatically clerical merely because they arose

out of clerical mistakes. W. Tex. State Bank v. Gen. Res. Mgmt. Corp., 723 S.W.2d 304,

306, (Tex. App.–Austin 1987, writ ref’d n.r.e.); Universal Underwriters Ins. Co. v. Ferguson,

471 S.W.2d 28, 30 (Tex. 1971). Here, the mistake arose out of an error made by Scott in

his preparation of the inventory that was made part of the mediated settlement agreement.

He testified that he accidentally gave the account to Rhonda because he was more worried

about apportioning the real property. He also testified, that if he had noticed that the

inventory listed the account in her name, he would have changed it.

       Judgments nunc pro tunc can not make substantive changes. In re Marriage of

Ward, 137 S.W.3d 910, 913 (Tex. App.–Texarkana 2004, no pet.). If the issue in error is

one of the primary judicial decisions the court made, then any change made is material and

is therefore a judicial error. Wood v. Griffin & Brand of McAllen, 671 S.W.2d 125, 129

(Tex. App.–Corpus Christi 1984, no writ). A court cannot use a judgment nunc pro tunc to

change the terms of the original judgment. Mathes v. Kelton, 569 S.W.2d 876, 877-78

(Tex. 1978); Cappadona Elec. Mgmt. v. Cameron County, 180 S.W.3d 364, 375 (Tex.

App.–Corpus Christi 2005, no pet.).




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         Here, the error is a material one. By changing the order to award the account to

Scott, the trial court materially altered the terms of the original judgment. This term

affected both the mediation and the final settlement. In fact, Rhonda testified that she

relied on the inventories to reach an agreement at mediation. Retroactively changing an

essential term that she relied on casts a doubt on whether Rhonda would have even

agreed to the settlement in the first place. Not only does the nunc pro tunc order change

the final judgment, it changes the parties’ original agreement. While Scott admitted that

he mistakenly gave Rhonda the account, he nevertheless included it as her property in the

inventory, which was used in reaching a settlement agreement and subsequently formed

part of the judgment. We sustain Rhonda’s first issue.

         The second issue is not contested by Scott.        Rhonda claims the mediated

settlement agreement is binding as of the date it was signed. In re Marriage of Joyner, 196

S.W.3d 883, 889 (Tex. App.–Texarkana 2006, pet. denied). A mediated settlement

agreement is binding on all parties if the agreement clearly says it is binding, is signed by

both parties, and is signed by each party’s attorney. TEX . FAM . CODE ANN . § 6.602(b)

(Vernon 2006).      Scott does not address Rhonda’s contention that the settlement

agreement is binding when signed. See TEX . R. APP. P. 38.1(h). He merely contends that

the mediation agreement should be binding. Since the mediation agreement meets the

statutory requirements of a binding agreement, we conclude the mediation agreement was

binding as of the date it was signed, and Rhonda should be awarded the bank account

balance as of November 7, 2005, which was $26,629.77. We sustain Rhonda’s second

issue.



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                                   IV. CONCLUSION

      For the foregoing reasons the trial court’s judgment is reversed, and judgment is

rendered in favor of Rhonda Gilchrist. Therefore, because the mediated settlement

agreement was binding on the date it was signed, Rhonda is entitled to $26,629.77, the

balance of account 370394 as of November 7, 2005.




                                                 ROSE VELA
                                                 Justice


Memorandum Opinion delivered and
filed this 26th day of June, 2008.




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