                                   NO. 07-05-0191-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                  NOVEMBER 4, 2005

                          ______________________________


                        IN THE INTEREST OF M.C.D., A CHILD


                        _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2004-525,781; HONORABLE CECIL G. PURYEAR, JUDGE

                         _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                               MEMORANDUM OPINION


       Appellant Sonia Deanda Stone challenges a nunc pro tunc order of termination

finding that appellee Caleb Lindsey was not obligated to pay retroactive child support

arrears. By two issues, Sonia contends the trial court erred by (1) granting judgment nunc

pro tunc after its plenary power had expired and (2) finding that no child support arrearage

was due and that the child support judgment was zero in violation of section 157.262 of the
Family Code.1 We reverse and vacate.


       In March 2004, a paternity test identified Caleb as M.C.D.’s biological father. As a

result, the trial court ordered Caleb to make monthly child support payments of $300 and

determined he was in arrears for retroactive support in the amount of $5,100. Pursuant

to Chapter 158 of the Family Code, the trial court signed an order for automatic withdrawal

of the support payments each month.


       In August 2004, Sonia, M.C.D.’s biological mother and primary conservator, filed

a petition requesting termination of Caleb and M.C.D.’s parent-child relationship. In

response, Caleb executed an affidavit voluntarily relinquishing his parental rights.

Following a hearing, the trial court entered an order of termination. The termination order

contained no mention of the current or retroactive child support owed by Caleb. However,

the court did enter an order terminating the prior order for withholding of earnings.


       In April 2005, Caleb filed a motion for judgment nunc pro tunc alleging the

termination order was incorrect because it did not “correctly reflect the parties agreement

to waive the child support arrearage.” At a hearing on the motion, Caleb testified that on

August 16, 2004, he and Sonia met in the courtroom and reached an agreement that “[a]ll

money would be stopped to her.” Caleb stated that he interpreted this agreement to

include all retroactive and future child support payments. Caleb also testified that, despite



       1
           Appellee Caleb Lindsey did not favor us with a brief, pro se or otherwise.

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the order terminating the withholding of his income, a portion of his earnings and his

federal income tax return was still being withheld for support payments. Therefore, he

requested that the court reform the judgment to reflect the parties’ agreement on the

arrearage.


       Conversely, Sonia testified that, although she did not expect any more money from

Caleb, she never agreed to relinquish her rights to the retroactive child support. However,

she stated that, after he relinquished his parental rights, she did not know if he would still

have to pay the retroactive support until she started receiving payments. After hearing the

testimony and concluding the arrearage issue was not before the court at the termination

hearing, on May 10, 2005, the trial court signed judgment nunc pro tunc that no arrearage

was owing.


       By her first issue, Sonia contends the trial court should not have granted a judgment

nunc pro tunc after its plenary power had expired because it affected the substantive rights

of the parties. We agree. A trial court retains plenary jurisdiction to modify a final

judgment or order within thirty days after it is signed. Tex. R. Civ. P. 329b. Judicial actions

taken after the expiration of the trial court's plenary power are void. In re Southwestern

Bell Tel. Co., 35 S.W. 3d 602, 605 (Tex. 2000). Even so, Rule 316 of the Rules of Civil

Procedure authorizes a trial court to correct clerical errors in judgments even after the

expiration of its plenary power by judgments nunc pro tunc. Tex. R. Civ. P. 316. However,

judgments nunc pro tunc may not be used to correct judicial errors. Andrews v. Koch, 702


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S.W.2d 584, 585 (Tex. 1986). Any attempt to correct a judicial error by judgment nunc pro

tunc is void. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 59 (Tex. 1970).


       The distinction between "clerical" and "judicial" errors lies in the exercise of judicial

reasoning or determination. Andrews, 702 S.W.2d at 585. A judicial error is one which

occurs in the rendering as opposed to the entering of a judgment. Escobar v. Escobar,

711 S.W.2d 230, 231 (Tex. 1986). When deciding whether a correction is a judicial or a

clerical error, we look to the judgment actually rendered, not the judgment that should or

might have been rendered. Id. Consequently, it is the trial court's words which are

determinative, not its intent. See id. Furthermore, a trial court's determination that an error

is clerical is not binding on an appellate court. See Finlay v. Jones, 435 S.W.2d 136 (Tex.

1968). A judgment nunc pro tunc should be granted if the evidence is clear and convincing

that a clerical error was made. Riner v. Briargrove Park Property Owners, Inc., 976 S.W.2d

680, 683 (Tex.App.–Houston [1st Dist.] 1998, no pet.).


       In the present case, Caleb alleged in his motion for judgment nunc pro tunc that the

termination order was incorrect because it did not reflect his oral agreement with Sonia that

he was no longer required to pay any retroactive support. However, there is no evidence

the claimed omission in the judgment was the result of a clerical error or that the court even

had knowledge of the agreement. In fact, in granting the motion, the trial court observed

that the arrearage “wasn’t raised to the Court, it was not an issue before the Court at the

time.” The court further stated “there is no arrearage found by the Court, period, because


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it wasn’t an issue before me.” In amending the termination order nunc pro tunc, the trial

court concluded that Caleb was “in arrears in the amount of $0.00, as of September 10,

2004.” Because the issue of payment of the retroactive support arrearage was never

before the court, we conclude the omission of such language in the termination order was

not the result of a clerical error capable of being corrected by a judgment nunc pro tunc.

Concluding that any error in the judgment was judicial rather than clerical, it could not be

altered after the court lost plenary jurisdiction. Sonia’s first issue is sustained. Our

disposition of this issue pretermits our consideration of the remaining issue. Tex. R. App.

47.1.


        Accordingly, the nunc pro tunc order of termination signed May 10, 2005 is reversed

and vacated.


                                                 Don H. Reavis
                                                   Justice




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