Opinion issued August 29, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                            NO. 01-11-00128-CV
                           ———————————

                        LARISA JACKSON, Appellant
                                       V.
                      VAGRAM SARADJIAN, Appellee



                   On Appeal from the 245th District Court
                            Harris County, Texas
                      Trial Court Case No. 2009-11459



             MEMORANDUM OPINION ON REHEARING

       We grant Larisa Jackson’s motion for rehearing and withdraw our June 21,

2012 opinion, vacate our judgment, and issue this opinion and the related judgment

in their stead.
      This is an appeal from the granting of a final decree of divorce. For the

reasons set forth below, we modify the trial court’s March 4, 2011 judgment and,

as modified, we affirm.

                                   Background

      After a trial presided over by the trial judge, the Honorable Annette Kuntz,

on November 22, 2010 the associate judge, the Honorable Roy Moore, signed a

final decree of divorce. The decree was approved as to form by the lawyers for

both appellant Larisa Jackson and appellee Vagram Saradjian. At the time he

signed the decree, Judge Moore had been elected as judge of the 245th District

Court of Harris County, but his term as a district judge did not begin until January

1, 2011.    On December 10, 2010, Jackson requested findings of fact and

conclusions of law, which District Court Judge Moore signed on January 13, 2011.

      On January 3, 2011, Jackson filed a motion to declare the November 22,

2010 divorce decree void because an associate judge has no authority to render a

final decree. Jackson in her motion stated that the “order should be set aside as

void and a new trial should be granted.” On February 21, 2011, Judge Moore, at

that time the district judge, ruled on the motion and held that the November 22,

2010 decree was a final decree and the court had lost plenary power thirty days

after it was signed, i.e., December 22, 2010. Judge Moore held that the court had

no jurisdiction to consider the January 3, 2011 motion, but he also held that a

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judgment nunc pro tunc should be signed in the interest of justice. On March 4,

2011, Judge Moore signed a “Final Decree of Divorce Nunc Pro Tunc.” No

postjudgment motions challenging the merits of either the November 22, 2010 or

March 4, 2011 decrees were filed.

      Jackson brings five issues on appeal.      The first three issues assail the

November 22, 2010 decree: (1) whether an associate judge has the authority to sign

a final divorce decree; (2) whether the trial court erred in not declaring the

November 22, 2010 decree void; and (3) whether the trial court erred in rendering

judgment nunc pro tunc. In the remaining two issues, Jackson contends (1) a new

trial is necessary because of alleged variances between the oral rendition at trial

and the written decree and because of other alleged errors and (2) the trial court

erred in awarding $300,000 in missing funds to Jackson as a part of the division of

the community estate.

                                    Discussion

      This Court has previously held that the Family Code does not generally

authorize an associate judge to render a final divorce decree. See Robles v. Robles,

965 S.W.2d 605, 609 n.4 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); see

also TEX. FAM. CODE ANN. § 201.007 (West 2008) (listing powers of associate

judge). Even in cases referred to the associate judge, Family Code section 201.013

provides, with an exception not applicable in this case, that a judgment of the

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associate judge becomes the judgment of the referring court only on the referring

court’s signing the proposed judgment. TEX. FAM. CODE ANN. § 201.013(b) (West

2008). There is no referral order in this case, so the November 22, 2010 decree

signed by the associate judge does not even have the standing of a section

201.013(b) proposed judgment.

      Because the November 22, 2010 decree was not signed by the district judge,

we hold that it has no legal effect as a judgment. As a result, the trial court did not

lose plenary power on December 22, 2010, as no valid judgment had been signed.

See TEX. R. CIV. P. 329b(d) (trial court retains plenary power over its judgment for

thirty days if no proper postjudgment motion is timely filed). The trial court

signed a final decree on March 4, 2011, and even though it is improperly described

in its caption as a “Final Decree of Divorce Nunc Pro Tunc,” it is nonetheless the

trial court’s final judgment. Accordingly, we sustain Jackson’s first two issues and

hold that the associate judge had no authority to sign a final divorce decree and the

trial court erred in treating the November 22, 2010 decree as a final judgment over

which the court had lost plenary power.

      The first two issues, however, are moot because the trial court rendered a

final decree on March 4, 2011. Jackson argues in issue three that the decree is an

improper judgment nunc pro tunc. We disagree. A judgment nunc pro tunc is only

proper if the trial court is correcting clerical error in its judgment and plenary

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power over the judgment has lapsed. See Andrews v. Koch, 702 S.W.2d 584, 585

(Tex. 1986). In this case, no final decree had been rendered before March 4, 2011,

so the description of the March 4, 2011 decree as being rendered nunc pro tunc

was error only to the extent that the decree related back in time to the November

22, 2010 decree to adjudicate any of the parties’ rights and responsibilities.

Accordingly, we sustain issue three only to the extent of modifying the March 4,

2011 decree to delete the words “nunc pro tunc.” See TEX. R. APP. P. 43.2(b).

         In her fourth issue, Jackson contends that a new trial is necessary because of

alleged variances between the oral rendition at trial and the written decree, as well

as other alleged errors. Jackson admits in her appellate brief that the problems she

raises are present in both the November 22, 2010 and March 4, 2011 decrees.

Jackson’s lawyer approved the November 22, 2010 decree as to form, and she did

not file a postjudgment motion in the trial court raising any of these alleged errors

in the decree or arguing that they constitute fundamental error. Accordingly, we

hold that she has not preserved her complaints for appellate review. See TEX. R.

APP. P. 33.1(a)(1) (requiring preservation of error). We overrule Jackson’s fourth

issue.

         In her fifth issue, Jackson claims the trial court erred in awarding $300,000

in missing funds to Jackson as a part of the division of the community estate,

because there is no evidence to support the award.

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      In family law cases, we review the trial court’s division of property for an

abuse of discretion. Grayson v. Grayson, 103 S.W.3d 559, 561 (Tex. App.—San

Antonio 2003, no pet.); see also Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.

1998) (recognizing trial court is afforded wide discretion in dividing marital

estate). Under an abuse of discretion standard, legal and factual insufficiency are

not independent grounds of error, but rather are relevant factors in assessing

whether the trial court abused its discretion. Stamper v. Knox, 254 S.W.3d 537,

542 (Tex. App.—Houston [1st Dist.] 2008, no pet.). The trial court does not abuse

its discretion as long as some evidence of a substantive and probative character

exists to support the trial court’s decision. Id.

      We consider favorable evidence if a reasonable fact finder could, and we

disregard contrary evidence unless a reasonable fact finder could not. Id. at 542.

With regard to whether the trial court abused its discretion, we determine whether,

based on the elicited evidence, the trial court made a reasonable decision. Id. The

trial court, as fact finder, is the “sole judge of the credibility of the witnesses and

the weight to be given their testimony.” McGalliard v. Kuhlmann, 722 S.W.2d

694, 696 (Tex. 1986). The trial court may believe one witness, disbelieve others,

and resolve inconsistencies in a witness’s testimony. Id. at 697.

      “In a decree of divorce or annulment, the court shall order a division of the

estate of the parties in a manner that the court deems just and right, having due

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regard for the rights of each party and any children of the marriage.” TEX. FAM.

CODE ANN. § 7.001 (West 2006). It is the responsibility of the parties to the suit to

produce evidence of the value of various properties to provide the trial judge with a

basis on which to divide them. Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex.

Civ. App.—Houston [1st Dist.] 1981, writ dism’d). The party complaining of the

trial court’s division of the property must demonstrate that the division is so unjust

and unfair as to constitute an abuse of discretion. Id.

      The trial court found that Jackson withdrew $300,000 from the marital estate

and failed to account for it. The trial court awarded Jackson the missing $300,000.

To offset this award, it assessed approximately $100,000 in credit card debt against

her. It also awarded Saradjian his retirement account, valued at approximately

$100,000.

      The trial court heard some testimony that Jackson withdrew at least

$300,000 from the marital estate, and that she failed to account for it at the time of

the divorce. Jackson conceded that she withdrew $209,0000 from a joint account

and put it in her individual bank account. She testified that the money was later

transferred to an investment account in her name. However, she testified that

Saradjian was in charge of the investment account and that she no longer knew

where the money was and had none of it left. On the other hand, Saradjian

testified that once Jackson had taken the money, he never had access to Jackson’s

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investment account or individual bank account. He never received any part of the

$209,000, and he believed that Jackson still had it.

      Jackson also testified that she removed Saradjian as an authorized user on a

bank account that she held in the name of Schlern International Music Festival.

She testified that after removing his name, she withdrew about $70,000 in cash

from the account in $9,500 increments. She testified that she gave most of the

money to Saradjian. However, Saradjian testified that he never received this

money. The cash was not accounted for at trial.

      Saradjian also testified that Jackson had obtained credit cards in his name

without his knowledge. He testified that Jackson charged more than $70,000 on

these cards without his knowledge after Saradjian and Jackson had separated. He

testified that he had no access to those credit cards, and did not receive any

benefits from those charges. Jackson testified that she used the credit cards to

invest with her Ameritrade account and to pay for living expenses for her and

Saradjian.

      Because the trial court heard conflicting evidence about whether Jackson

had withdrawn at least $300,000 from the marital estate, it was free to weigh the

credibility of the witnesses and determine that Jackson had failed to account for

some or all of this money in connection with the marital estate. Kuhlmann, 722

S.W.2d at 696–97. Hence, the evidence is legally and factually sufficient to

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support the trial court’s division of the marital estate. See Stamper, 254 S.W.3d at

542; Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

                                   Conclusion

      We modify the trial court’s March 4, 2011 final decree to delete the words

“Nunc Pro Tunc” from the caption “Final Decree of Divorce Nunc Pro Tunc.” As

so modified, we affirm. See TEX. R. APP. P. 43.2(b).




                                             Jim Sharp
                                             Justice

Panel consists of Justices Keyes, Bland, and Sharp.




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