Reversed and Rendered, Petition for Writ of Mandamus Denied as Moot, and
Opinion filed July 31, 2018.




                                 In the

                 Fourteenth Court of Appeals

                          NO. 14-17-00618-CV

IN THE MATTER OF THE MARRIAGE OF LORI ELIZABETH RUSSELL
              AND CHARLES WAYNE RUSSELL


             On Appeal from the County Court at Law No. 2
                       Galveston County, Texas
                  Trial Court Cause No. 15-FD-1713


                          NO. 14-17-00787-CV

                 IN RE CHARLES WAYNE RUSSELL

                       ORIGINAL PROCEEDING
                         WRIT OF MANDAMUS
                       County Court at Law No. 2
                         Galveston County, Texas
                    Trial Court Cause No. 15-FD-1713
                                     OPINION

      The trial court entered a final decree of divorce, which it later modified on the
motion for judgment nunc pro tunc of appellee Lori Elizabeth Russell. Appellant
Charles Wayne Russell brings three related issues, arguing: (1) the trial court lacked
jurisdiction to sign and enter the nunc pro tunc order and judgment that made
substantive changes to the final divorce decree after the court lost its plenary power,
rendering the nunc pro tunc order and judgment void ab initio; (2) the trial court
erred in refusing to set aside its void nunc pro tunc order and judgment; and (3) the
trial court erred in denying Charles’s bill of review and refusing to set aside its void
nunc pro tunc order and judgment. Charles filed both an appeal and a petition for
writ of mandamus. On our own motion, we consolidated Charles’s appeal (No. 14-
17-00618-CV) and original proceeding (No. 14-17-00787-CV). We reverse the trial
court’s judgment nunc pro tunc and render judgment reinstating the original final
decree of divorce. We deny Charles’s petition for writ of mandamus as moot.

                                I.    BACKGROUND

      Lori filed for divorce from Charles in July 2015. Charles counterfiled for
divorce. They signed a mediated settlement agreement (MSA) on September 28,
2015, and filed it with the trial court. With regard to division of property, the MSA
provided that Lori was to receive “$201,000.00 of Charles[’s] 401(k) as of
9/28/2015” and that Charles was to pay Lori “$750.00 beginning October 1, 2015[,]
for 12 consecutive months.”

      On November 20, 2015, the trial court held a prove-up hearing on the divorce.
Lori and her attorney were present. Neither Charles nor his attorney was present.
Lori testified that Charles and she had reached an agreement in the division of the
community estate through the MSA filed with the court. The only particular item


                                           2
discussed from the mediated property division was “the home,” which Lori stated
Charles was to receive. Lori asked the trial court “to approve [her] divorce.” The
trial court stated: “I am going to grant both the petition for divorce, as well as the
request for a name change.” The judge’s docket sheet notation states: “Hrg held.
Petition for Divorce proved-up. Entry date 12/4/15.”

       On November 23, 2015, the trial court signed and entered the final decree of
divorce, which did not include the 401(k) award and only included one $750
payment in its division of the marital estate. The final divorce decree did not
mention the MSA, except in the following provision: “To the extent that there may
be a conflict between this Order and the Mediated Settlement Agreement from
September 28, 2015, this Order controls.” Both Charles and Lori approved and
consented to the final divorce decree “as to both form and substance.”1 Neither party
filed a post-trial motion to modify, correct, or reform the judgment. Neither party
noticed an appeal from the final divorce decree. The trial court lost plenary power
as of December 24, 2015.

       On April 13, 2016, Lori filed a motion for judgment nunc pro tunc, arguing
that the final divorce decree was “incorrect” pursuant to the MSA because (1) it did
not award Lori “[a] portion of CHARLES[]’s retirement benefits in CELANESE
AMERICAS RETIREMENT SAVINGS PLAN arising out of CHARLES[]’s
employment with Celanese as of September 28, 2015, that portion being
$201,000.00, together with any interest, dividends, gains, or losses on that amount
arising since that date”;2 and (2) Charles’s one-time $750 payment to Lori instead

       1
          In her response brief, without citation to the record, Lori states that the record does not
support that her counsel signed the final divorce decree “for [sic] her permission.” However, the
final divorce decree contains a signature for Lori Russell “by permission.”
       2
          Although the $201,000 amount is the same, this award language requested in the nunc
pro tunc motion does not otherwise track the MSA. Lori’s motion referred to Charles’s “retirement
benefits in CELANESE AMERICAS RETIREMENT SAVINGS PLAN,” while the MSA referred
                                                 3
should have been monthly $750 payments beginning October 1, 2015, and ending
October 1, 2016. A hearing was scheduled for April 26, 2016, on the motion for
judgment nunc pro tunc; the record does not include a transcript of this hearing.3 On
May 4, 2016, the trial court signed and entered an order on the motion, ordering that
judgment nunc pro tunc be entered. That same day, the trial court signed and entered
judgment nunc pro tunc, which included Lori’s two requested changes concerning
the division of the marital estate.

       On March 28, 2017, Charles filed a motion to set aside the court’s May 4,
2016 judgment nunc pro tunc as void, or alternatively petition for bill of review and
declaratory judgment to set aside the judgment as void.4 A hearing was scheduled
for June 28, 2017. During the hearing, counsel for Charles argued that the judgment
nunc pro tunc was void because the trial court did not render judgment on or adopt
the MSA at the prove-up hearing and first rendered judgment on the property
division in the final divorce decree.5 The trial court denied the motion and signed a
written order that same day. This appeal by Charles followed. Charles also filed a
petition for writ of mandamus “seeking essentially the same relief.”

                                        II.   ANALYSIS

A. Applicable law

       This appeal focuses on the proper characterization of the May 4, 2016
judgment nunc pro tunc under Texas Rules of Civil Procedure 316 and 329b(f).



to Charles’s “401(k).”
       3
        The judge’s docket sheet notation states: “Hrg held. Ct to take under advisement.”
According to Charles, it was a non-evidentiary hearing.
       4
         As exhibits to this motion, Charles attached: the September 28, 2015 MSA, the transcript
of the November 20, 2015 prove-up hearing, and the November 23, 2015 final decree of divorce.
       5
           Charles also introduced the prove-up transcript.

                                                  4
           1. Plenary power

       A trial court has “plenary power to . . . vacate, modify, correct, or reform [its]
judgment within thirty days after the judgment is signed.” Tex. R. Civ. P. 329b(d);
In re A.M.C., 491 S.W.3d 62, 66 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
Once plenary power has expired, a trial court’s jurisdiction cannot be vested by party
agreement or waiver. See In re Vaishangi, Inc., 442 S.W.3d 256, 260–61 (Tex.
2014) (orig. proceeding) (per curiam); In re S.A.H., 465 S.W.3d 662, 665 (Tex.
App.—Houston [14th Dist.] 2014, no pet.).

       After the trial court’s plenary power expires, it may not set aside its judgment
except by timely bill of review. Tex. R. Civ. P. 329b(f); see King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003).6 However, a nunc pro tunc judgment
permits the trial court to “at any time correct a clerical error in the record of a
judgment.” Tex. R. Civ. P. 329b(f) (citing Tex. R. Civ. P. 316 (“Clerical mistakes
in the record of any judgment may be corrected by the judge in open court according
to the truth or justice of the case . . . .”)).

           2. Clerical errors

       A clerical error is a discrepancy between the entry of a judgment in the record
and the judgment that was actually rendered. See Escobar v. Escobar, 711 S.W.2d
230, 231–32 (Tex. 1986); In re A.M.C., 491 S.W.3d at 67. A clerical error does not


       6
         The Austin Court of Appeals recently reversed a trial court’s revised final divorce decree
issued after the trial court lost plenary power and reinstated the original final divorce decree,
concluding that the trial court abused its discretion in granting the wife’s bill of review. See
Wiegrefe v. Wiegrefe, No. 03-16-00665-CV, 2017 WL 3908645, at *1, 3, 5–6 (Tex. App.—Austin
Aug. 29, 2017, no pet.) (mem. op.) (wife argued she was entitled to revised decree where final
divorce decree did not track parties’ MSA and incorrectly awarded investment account to husband
under circumstances where drafting mistake by husband’s attorney in proposed decree was
“mixed” with wife’s negligence in discovering mistake). Lori did not file a bill of review here.


                                                  5
result from judicial reasoning or determination. Andrews v. Koch, 702 S.W.2d 584,
585 (Tex. 1986) (per curiam); Morris v. O’Neal, 464 S.W.3d 801, 810 (Tex. App.—
Houston [14th Dist.] 2015, no pet.).

       Examples of clerical errors include an incorrectly stated date or damages
amount, missing child-support amount or statement that payments were for child
support, missing account numbers, transposed parties, or an order that included only
a partial scan of a document it incorporated.7

       An example of a clerical error involving a divorce settlement agreement is
Delaup v. Delaup, 917 S.W.2d 411 (Tex. App.—Houston [14th Dist.] 1996, no writ).
In Delaup, we upheld the granting of a judgment nunc pro tunc where “the trial court
adopted the agreed settlement read into the record as the judgment of the court.” Id.
at 413. “The judge rendered his decision orally, on the record, announcing, ‘[T]he
divorce is granted and all matters subject to the agreement are approved and so
ordered and that’s the order of the court.’” Id. Since the final written judgment
omitted several key aspects of the agreed settlement, it incorrectly stated the


       7
          See In re A.M.C., 491 S.W.3d at 67–68 (clerical error where scanner failed “to pick up
the entire page of the enforcement order”); In re M.V., No. 14-08-00418-CV, 2009 WL 6407539,
at *2 (Tex. App.—Houston [14th Dist.] Sept. 1, 2009, no pet.) (mem. op.) (nunc pro tunc decree
properly corrected amount of $500 monthly child support missing from judgment where docket
sheet notation included $500 amount); Osojie v. Osojie, No. 03-08-00688-CV, 2009 WL 2902743,
at *9 (Tex. App.—Austin Aug. 27, 2009, no pet.) (mem. op.) (nunc pro tunc decree properly
corrected one account number to three account numbers for $37,180.22 of husband’s Rollover IRA
awarded to wife in divorce decree); Fiske v. Fiske, No. 01–03–00048–CV, 2004 WL 1847368, at
*5 (Tex. App.—Houston [1st Dist.] Aug. 19, 2004, no pet.) (mem. op.) (nunc pro tunc judgment
properly corrected award of “$50,00.00” in damages to read “$50,000.00”); In re Taylor, 113
S.W.3d 385, 393 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“[A] judgment nunc pro tunc
may be issued to correct the date an order was signed if the original date is shown to have been
incorrect.”); Dickens v. Willis, 957 S.W.2d 657, 659–60 (Tex. App.—Austin 1997, no pet.)
(clerical error where divorce decree misidentified petitioner and respondent, thus ordering wrong
party to pay child support); Holway v. Holway, 506 S.W.2d 643, 645–46 (Tex. Civ. App.—El Paso
1974, no writ) (nunc pro tunc judgment properly corrected failure to state monthly payments were
for child support as supported by docket sheet notation).

                                               6
judgment rendered. Id.; see also Ledbetter v. Ledbetter, 390 S.W.2d 403, 404–05
(Tex. Civ. App.—Waco 1965, writ dism’d) (nunc pro tunc judgment properly
corrected omission of two lots from legal description of certain property awarded to
husband as part of settlement agreement where original decree recited, “Said
Settlement Agreement is therefore approved by the Court as a part of this decree.”).

           3. Judicial errors

       In a nunc pro tunc judgment, the trial court only can correct the entry of a final
written judgment that incorrectly states the judgment actually rendered. Escobar,
711 S.W.2d at 231–32. Even if the court renders judgment incorrectly, it cannot,
nunc pro tunc, alter a written judgment that precisely reflects the incorrect rendition.
Id. at 232. That is, a nunc pro tunc judgment may not be used to correct judicial
errors. Id. at 231. A judicial error occurs in the rendering, rather than the entering,
of a judgment and arises from a mistake of law or fact that requires judicial reasoning
to fix. Id.; see also In re A.M.C., 491 S.W.3d at 67. “Substantive changes to an
order are judicial errors that cannot be remedied through a nunc pro tunc judgment.”
Matter of Marriage of Bowe & Perry, No. 14-16-00551-CV, 2017 WL 6102779, at
*5 (Tex. App.—Houston [14th Dist.] Dec. 7, 2017, no pet.). (mem. op.) (six later
orders which deleted factual finding paragraphs from earlier order and changed legal
basis for trial court’s dismissal of father’s claims were substantive alternations that
exceeded scope of nunc pro tunc judgment).8


       8
          See also Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex. 1978) (nunc pro tunc judgment
that changed party entitled to possession of ring “materially altered the substance” of prior order
and “[could] not be validly accomplished”); Hernandez v. Lopez, 288 S.W.3d 180, 185–88 (Tex.
App.—Houston [1st Dist.] 2009, no pet.) (nunc pro tunc judgment that changed year of
confirmation of father’s child support arrearage from 2004 to 2003 created new payment obligation
not present in original agreed order and impermissibly corrected judicial error); Whitmire v. Lilly,
No. 14–07–00993–CV, 2008 WL 4308557, at *2 (Tex. App.—Houston [14th Dist.] Aug. 28, 2008,
no pet.) (mem. op.) (nunc pro tunc judgment that “delete[d] several portions of the court’s first
judgment” impermissibly corrected judicial error); Gilchrist v. Gilchrist, No. 13-07-00448-CV,
                                                 7
       An example of a judicial error involving an MSA is Montemayor v. Garcia,
No. 13-09-00342-CV, 2011 WL 578603 (Tex. App.—Corpus Christi Feb. 17, 2011,
no pet.) (mem. op.). In Montemayor, the parties entered an MSA that included terms
settling the parent-child relationship. Id. at *1. The original final decree stated that
the mother had the right to designate the primary residence of the children without
regard to geographic location. Id. The trial court granted the father’s nunc pro tunc
motion on the basis that the parties instead had agreed in the MSA that the mother
was limited to residing in Hidalgo County. Id. The court of appeals reversed the
nunc pro tunc decree as void and reinstated the original decree. Id. at *2–3. In doing
so, the Montemayor court noted that “the original written judgment precisely
reflected the allegedly incorrect rendition of the judgment, making it expressly clear
that [the mother’s] right to determine the residence of the children was ‘without
regard to geographic location.’” Id. at *2. In addition, the change made was a
“substantive one” where the “original judgment placed no restriction on [the
mother’s] right to determine the residence of the children.” Id.9


2008 WL 2525611, at *1–2 (Tex. App.—Corpus Christi June 26, 2008, no pet.) (mem. op.) (nunc
pro tunc judgment that changed party entitled to bank account impermissibly corrected judicial
error); Roman Catholic Diocese of Dall. v. Cty. of Dall. Tax Collector, 228 S.W.3d 475, 479 (Tex.
App.—Dallas 2007, no pet.) (nunc pro tunc judgment that “impos[ed] an additional two years of
tax liability” impermissibly corrected judicial error); Riner v. Briargrove Park Prop. Owners, 976
S.W.2d 680, 682–83 (Tex. App.—Houston [1st Dist.] 1997, no writ) (nunc pro tunc judgment was
improper because its modifications were substantive and material, including reinstating lien to pay
for attorney’s fees); McLeod v. McLeod, 752 S.W.2d 676, 679 (Tex. App.—Dallas 1988, no writ)
(nunc pro tunc judgment impermissible where “changing the November 15, 1985 order from one
ordering payment of child support arrearages to one ordering the payment of retroactive child
support materially altered the substance of the November 15, 1985 order”).
       9
          Likewise, in an unpublished opinion, the First Court of Appeals reversed a nunc pro tunc
decree and reinstated an agreed final decree of divorce in Paisley v. Paisley, No. 01-99-00664-CV,
2000 WL 19660 (Tex. App.—Houston [1st Dist.] Jan. 13, 2000, pet. denied) (op. on reh’g, not
designated for publication). There, the parties entered and filed an MSA that provided the father
would pay private school tuition as additional child support. Id. at *1. The parties signed, agreeing
as to both form and substance, a divorce decree that omitted the tuition term. Id. The mother filed
a motion for judgment nunc pro tunc on the basis that the divorce decree was incorrect because it
                                                 8
           4. Void judgments

       An attempted nunc pro tunc judgment rendered to correct a judicial error after
plenary power has expired is void for lack of jurisdiction. See State ex. rel Latty v.
Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam); Dikeman v. Snell, 490
S.W.2d 183, 186 (Tex. 1973); In re A.M.C., 491 S.W.3d at 67 & n.5. A litigant may
attack a void judgment either directly or collaterally. See PNS Stores, Inc. v. Rivera,
379 S.W.3d 267, 271 (Tex. 2012). After expiration of plenary power, a trial court
still may sign an order declaring a prior judgment or order to be void because the
trial court signed the prior judgment or order after expiration of the court’s plenary
power. See Tex. R. Civ. P. 329b(f). Although it is wholly unnecessary to appeal
from a void judgment, an appeal may be taken and the appellate court may declare
the judgment void. State ex rel. Latty, 907 S.W.2d at 486. A litigant also may seek
and is entitled to mandamus relief from a void judgment. In re Martinez, 478 S.W.3d
123, 128 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

           5. Standard of review

       Whether the trial court previously rendered judgment and the contents of the
judgment are fact questions for the trial court, but whether an error in the judgment
is judicial or clerical is a question of law we review de novo. See Escobar, 711
S.W.2d at 232; In re A.M.C., 491 S.W.3d at 67. When deciding whether a correction
is of a judicial or a clerical error, we look to the judgment actually rendered, not the
judgment that should or might have been rendered. See Escobar, 711 S.W.2d at 231;
In re A.M.C., 491 S.W.3d at 67. Where, as here, no findings of fact or conclusions


failed to reflect all the terms of the MSA. Id. The trial court granted her motion. Id. The Paisley
court concluded that the error was a judicial error where the terms of the MSA were not read into
the record and “[t]he only indication of the judgment rendered by the trial court is the written
judgment that was signed by the court and entered into the record,” which “neither reference[d]
nor incorporate[d] the mediated agreement.” Id. at *2.

                                                9
of law were filed, the trial court’s judgment implies all findings of fact necessary to
support it. Pharo v. Chambers Cty., 922 S.W.2d 945, 948 (Tex. 1996). We must
defer to the trial court’s factual determinations that a judgment has been rendered
and its contents if some probative evidence supports them but are not bound by the
trial court’s legal determination regarding the nature of any error in the original
judgment. Escobar, 711 S.W.2d at 232; In re A.M.C., 491 S.W.3d at 67. Evidence
supporting the trial court’s fact-finding may be in the form of oral testimony of
witnesses, written documents, the court’s docket, and the judge’s personal
recollection. In re A.M.C., 491 S.W.3d at 67.

B. The judgment nunc pro tunc impermissibly corrected judicial errors.
      In his three related issues, Charles argues that the nunc pro tunc order and
judgment are void—and the trial court erred in refusing to set aside its void nunc pro
tunc order and judgment—because they “made substantive judicial changes to the
trial court’s November 23, 2015 Final Decree of Divorce after the court lost its
plenary power.”

      The parties do not dispute that the trial court’s plenary power expired on
December 23, 2015—therefore, it was no longer able to correct a judicial error after
this date. See Tex. R. Civ. P. 329b(d). Having reviewed the record, we conclude
there is no evidence to show that the trial court rendered a judgment different from
the final divorce decree signed on November 23, 2015. Because the May 4, 2016
judgment nunc pro tunc changed the substantive rights of the parties under the decree
and corrected judicial, and not clerical, errors, the judgment nunc pro tunc is void.

      In her motion for judgment nunc pro tunc, Lori requested corrections to the
agreed final divorce decree because the judgment was “incorrect” when compared
with the parties’ September 28, 2015 MSA. Even if the trial court incorrectly renders
judgment, it cannot, on a nunc pro tunc motion, alter a written judgment that

                                          10
precisely reflects the incorrect rendition. Escobar, 71 S.W.2d at 231–32. When we
consider the judgment actually rendered by the trial court as to the property division
of the marital estate here, we conclude that the original written judgment precisely
reflected the allegedly incorrect rendition of the judgment. See Montemayor, 2011
WL 578603, at *2. The agreed final divorce decree made it expressly clear that
Charles was awarded as his sole and separate property:

      All sums, whether matured or unmatured, accrued or unaccrued, vested
      or otherwise, together with all increases thereof, the proceeds
      therefrom, and any other rights related to any profit-sharing plan,
      retirement plan, Keogh plan, pension plan, employee stock option plan,
      401(k) plan, employee savings plan, accrued unpaid bonuses, disability
      plan, or other benefits existing by reason of the husband’s past, present,
      or future employment.
The original judgment also made it expressly clear that Lori was awarded as her sole
and separate property “Seven Hundred Fifty Dollars ($750.00) payable by
CHARLES[] to LORI[] on the day of divorce.” The original judgment was agreed
to in form and substance by both parties, did not state that it was approving or
incorporating the MSA, and made it expressly clear that to the extent any conflict
existed between the decree and the September 28, 2015 MSA, the November 23,
2015 final divorce decree controlled.

      The transcript of the November 20, 2015 divorce prove-up hearing does not
otherwise support that the trial court at that time rendered judgment on the MSA,
i.e., the $201,000 401(k) award and the twelve $750 payments. The only term of the
MSA related to property division that Lori testified to was that Charles would
receive “the home.” The MSA was not read into the record. Lori asked the trial
court “to approve [her] divorce” and did not mention the MSA. The trial court
stated: “I am going to grant the petition for divorce, as well as the request for a name
change.” The trial court did not mention or approve the parties’ MSA. Consistent

                                          11
with the transcript, the notation in the trial judge’s docket sheet stated, “Petition for
Divorce proved-up. Entry date 12/4/15.”10 Nowhere did the trial court express that
judgment on the MSA was granted, or otherwise ordered, rendered, pronounced,
concluded, final, or complete.

       At the hearing on Charles’s motion to set aside, the trial judge acknowledged
she did not announce at the prove-up hearing she was “adopting the agreements
made by the parties” or that she was “render[ing] judgment on the mediated
settlement agreement.” The trial judge stated that she did not think she had to: “I
think that the transcript from the [prove-up]—with the parties agreeing that the
property division was set out in the MSA is sufficient.” However, “[w]hat the trial
court believes to be the legal effect of its act is not dispositive” on rendition. Inwood
Forest Cmty. Improvement Ass’n v. Arce, 485 S.W.3d 65, 71 (Tex. App.—Houston
[14th Dist.] 2015, pet. denied) (citing S & A Rest. Corp. v. Leal, 892 S.W.2d 855,
858 (Tex. 1995)); In re K.N.M., No. 2-08-308-CV, 2009 WL 2196125, at *6 (Tex.
App.—Fort Worth July 23, 2009, no pet.) (mem. op.) (same); see Araujo v. Araujo,
493 S.W.3d 232, 237 (Tex. App.—San Antonio 2016, no pet.) (“The fact that a trial
court may believe it rendered judgment on an earlier date is not dispositive.”).
Rather, rendition is a present act and the words expressed by the trial court must
clearly indicate the intent to render immediate judgment at that time, not in the
future.11 See S & A Rest., 892 S.W.2d at 858.


       10
           Regarding the division of community property, in her petition, Lori requested that the
trial court divide the estate in a manner deemed right and just.
       11
          Compare, e.g., State v. Naylor, 466 S.W.3d 783, 789 (Tex. 2015) (divorce proceeding
was rendition where terms of settlement agreement read into record and trial court announced,
“The divorce is granted pursuant to the agreement you have recited into the record.”), Blackburn
v. Blackburn, No. 02-12-00369-CV, 2015 WL 2169505, at *6–7 (Tex. App.—Fort Worth May 7,
2015, no pet.) (mem. op.) (divorce proceeding was rendition where wife requested trial court
approve the MSA; trial judge stated, “All right. I’m going to grant the divorce pursuant to the
terms and provisions of the [MSA] that’s been stated herein today”; docket notation stated,
                                               12
       Under these circumstances, we conclude that the trial court did not—at the
prove-up hearing or otherwise—render judgment on the terms of the $201,000
401(k) award and the twelve $750 payments as contained in the parties’ September
28, 2015 MSA.

       To the extent Charles’s or Lori’s attorney may have committed drafting errors
that became a part of the trial court’s judgment as rendered in the final divorce
decree, such mistakes constitute judicial, not clerical, error.12 See In re Daredia, 317
S.W.3d 247, 249–50 (Tex. 2010) (per curiam) (“[P]rovisions alleged to have been
inserted by mistake of the attorney nevertheless become a part of the court’s
judgment and therefore are judicial errors when thus rendered in writing by the
court.” (citing Dikeman, 490 S.W.2d at 185–86)); see also, e.g., In re D & KW

“Divorce granted pursuant to mediated Stlmt. Agreement, Decree to be signed upon presentment”;
and final divorce decree stated divorce was “judicially PRONOUNCED AND RENDERED” on
date of prove-up hearing), Maldonado v. Rosario, No. 01-12-01071-CV, 2013 WL 1316385, at *3
(Tex. App.—Houston [1st Dist.] Apr. 2, 2013, no pet.) (mem. op.) (per curiam) (divorce
proceeding was rendition where trial court stated that it reviewed and accepted MSA and “this
divorce is granted,” and docket entry stated, “MSA, divorce granted”), In re Marriage of Joyner,
196 S.W.3d 883, 887–88 (Tex. App.—Texarkana 2006, pet. denied) (divorce proceeding was
rendition; “most telling were the trial court’s comments . . . ‘I’m going to rule, and then I’ll allow
y’all to make of record your exceptions to my rulings. And in so doing, you can ask for a, I guess
in effect, a judgment N.O.V., a motion for rehearing, or whatever you want to call it, and tell me
why you are entitled to it.’”), and Delaup, 917 S.W.2d at 413 (divorce proceeding was rendition
where parties testified regarding terms of settlement; terms were read into record; and at that time
trial judge stated, “[T]he divorce is granted and all matters subject to the agreement are approved
and so ordered and that’s the order of the Court.”), with Molina v. Molina, 531 S.W.3d 211, 217
(Tex. App.—San Antonio 2017, no pet.) (divorce proceeding was not rendition as to ranch
property term missing from final divorce decree where nothing in words used “clearly reflect[ed]
the trial court’s present intent to render judgment”).
       12
          According to counsel for Lori, as stated in Lori’s supplemental brief regarding the nunc
pro tunc proceedings, it was Charles’s attorney who “filed a draft copy of the order that did not
contain the entire agreement.” In his motion to set aside the May 4, 2016 judgment nunc pro tunc
as void, or alternatively petition for bill of review and declaratory judgment to set aside the
judgment as void, and at the hearing, counsel for Charles asserted that it was Lori’s attorney who
drafted the agreed divorce decree and “sent it over.” The record reflects that two versions of the
proposed final decree of divorce were filed. Neither version, however, included the $201,000
401(k) award or the twelve monthly $750 payments.

                                                 13
Family, L.P., No. 01-11-00276-CV, 2012 WL 3252683, at *6 (Tex. App.—Houston
[1st Dist.] Aug. 9, 2012, no pet.) (mem. op.) (citing In re Daredia, 317 S.W.3d at
250); Am.’s Favorite Chicken Co. v. Galvan, 897 S.W.2d 874, 879 (Tex. App.—San
Antonio 1995, writ denied) (citing Dikeman, 490 S.W.2d at 185–86).

       Moreover, the changes to correct the division of property made in the
judgment nunc pro tunc were substantive ones.13 Instead of Charles receiving all
sums of his employment benefits per the original decree, the judgment nunc pro tunc
awarded Lori $201,000 of Charles’s Celanese retirement savings plan as of
September 28, 2015. Instead of Charles owing Lori one payment of $750 per the
original decree, the judgment nunc pro tunc awarded Lori a year’s worth of monthly
$750 payments from Charles totaling $9,000.

       Lori does not “substantially disagree” with the “fairly simple” record. Nor
does she insist that her requested changes were clerical. Rather, she contends that
under sections 6.60214 and 153.007115 of the Texas Family Code, she has a right to

       13
           See Shanks v. Treadway, 110 S.W.3d 444, 446, 449 (Tex. 2003) (changing original
decree which awarded wife twenty-five percent of husband’s total retirement benefits without
regard to date to same percentage but as valued at time of divorce was substantive; husband’s
“remedy for a substantive error of law by the trial court was by direct appeal, and he cannot now
collaterally attack the judgment”); Watson v. Heaton, No. 14-09-00717-CV, 2010 WL 5132565,
at *2 (Tex. App.—Houston [14th Dist.] Dec. 14, 2010, no pet.) (mem. op.) (changing original
decree which awarded husband house as his sole and separate property to grant wife possessory
interest in house and order husband to vacate was substantive); Gilchrist, 2008 WL 2525611, at
*2 (changing final divorce decree to award bank account to husband instead of wife was
substantive); Marshall v. Priess, 99 S.W.3d 150, 160 (Tex. App.—Houston [14th Dist.] 2002, no
pet.) (concluding that “the addition of the requirement that [wife] pay the survivor benefit premium
constitutes a substantive change” to property division).
       14
         See Tex. Fam. Code Ann. § 6.602(c) (West 2006) (“If a mediated settlement agreement
meets the requirements of this section, a party is entitled to judgment on the mediated settlement
agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.”).
       15
          See Tex. Fam. Code Ann. § 153.0071(e) (West 2014 & Supp. 2017) (“If a mediated
settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on
the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or
another rule of law.”).

                                                14
a judgment that conforms to the MSA. Lori has not cited, nor have we found, any
authority supporting the proposition that a trial court otherwise retains jurisdiction
beyond its plenary power to make substantive changes to its final judgment and
correct judicial errors involving the failure to track terms from an MSA.16 Although
Lori may have been entitled to secure rendition of and any substantive correction of
and modification to the judgment in her divorce action in accordance with the MSA
while the trial court retained jurisdiction, such entitlement expired with the
expiration of the trial court’s plenary power. See Montemayor, 2011 WL 578603, at
*3 n.5 (judgment nunc pro tunc was incorrect vehicle by which to seek amendment
of original decree to comply with MSA).17

       We conclude that the May 4, 2016 judgment nunc pro tunc is void. We sustain
Charles’s issues on appeal. Because we address and remedy these issues by appeal,
we deny Charles’s petition for writ of mandamus as moot. See State ex rel. Latty,
907 S.W.2d at 486; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

                                  III.   CONCLUSION

       Accordingly, we reverse the trial court’s judgment nunc pro tunc and render


       16
           Were this the case, presumably a party also would not be required to preserve an
appellate argument that a judgment failed to conform to an MSA. However, Texas appellate
courts, including this one, consistently have held otherwise. See In re M.L.R., No. 05-15-00647-
CV, 2016 WL 5791530, at *4 (Tex. App.—Dallas Oct. 4, 2016, no pet.); Brantley v. Brantley, No.
14-11-00583-CV, 2012 WL 727700, at *2–3 (Tex. App.—Houston [14th Dist.] Mar. 6, 2012, no
pet.) (mem. op.); Murphy v. Leveille, No. 2-08-130-CV, 2009 WL 2619857, at *2 (Tex. App.—
Fort Worth Aug. 26, 2009, no pet.) (mem. op.) (per curiam); Barina v. Barina, No. 03-08-00341-
CV, 2008 WL 4951224, at *2–3 (Tex. App.—Austin Nov. 21, 2008, no pet.) (mem. op.); cf. Matter
of Marriage of Harrison, —S.W.3d—, No. 14-15-00430-CV, 2018 WL 2926268, at *29 (Tex.
App.—Houston [14th Dist.] June 12, 2018, no pet. h.) (indicating that party would need to
“properly and timely present[]” any motion to enter judgment on MSA in trial court for purposes
of preservation).
       17
         See also Paisley, 2000 WL 19660, at *2 (rejecting wife’s argument that she had a right
to judgment on MSA under sections 6.602 and 153.0071 of Family Code despite expiration of
plenary power).

                                              15
judgment reinstating the original agreed final decree of divorce dated November 23,
2015.


                                             /s/   Marc W. Brown
                                                   Justice


Panel consists of Justices Jamison, Donovan, and Brown.




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