Opinion
No. 13-00-187-CV.
Opinion delivered and filed February 5, 2004.
On appeal from the 103rd District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and KENNEDY.
Retired Justice Noah Kennedy was assigned to this Court by the Supreme Court of Texas pursuant to the government code. See TEX. GOV'T CODE ANN. § 74.003 (Vernon Supp. 2004). After this case was submitted, Justice Kennedy passed away. Thus, Justice Kennedy did not participate in this opinion.
MEMORANDUM OPINION
Appellant, Raquel Flores Cisneros, brings this second appeal from her divorce proceeding. We conclude that the trial court's nunc pro tunc order of May 16, 2000 is void and dismiss the appeal.
Background
On November 16, 1999, appellant's divorce decree was signed. Appellant filed a motion for new trial on December 2, 1999. The notice of appeal was due on February 14, 2000; however, appellant did not file her notice of appeal until February 23, 2000. Because appellant filed a late notice of appeal and further failed to pay filing fees and respond to requests and directives from this Court, we dismissed the appeal for want of jurisdiction on June 15, 2000. Cisneros v. Cisneros, No. 13-00-187-CV, 2000 Tex. App. LEXIS 4087 (Corpus Christi June 15, 2000, no pet.) (per curiam) (not designated for publication).
On March 20, 2000, we notified counsel that the appeal had not been timely perfected and stated that the appeal would be dismissed if the defect were not cured within ten days. We further requested payment of the $125.00 filing fee within ten days. On April 5, 2000, we again notified counsel that the filing fee was due within ten days of receipt of the notice and specifically warned that the appeal would be dismissed without payment. On May 10, 2000, we notified appellant that she had failed to file her docketing statement and requested that the docketing statement be furnished immediately. Prior to dismissal of this cause, appellant failed to respond to the defect letter concerning the timeliness of her notice of appeal, failed to pay her filing fee, and failed to furnish her docketing statement.
On June 22, 2000, appellant filed an amended notice of appeal and a motion requesting that the Court reinstate her appeal on grounds that a nunc pro tunc judgment was entered by the trial court on May 16, 2000, after the expiration of the trial court's plenary power. Appellant contended that she did not receive actual notice of the nunc pro tunc judgment until June 15, 2000; therefore, her amended notice of appeal, filed on June 22, 2000, was timely.
By order issued July 13, 2000, we granted, in part, appellant's motion to reinstate her appeal, but only as to "complaints that would not apply to the original judgment." See TEX. R. APP. P. 4.3(b); TEX. R. CIV. P. 306a(6); Gonzalez v. Doctors Hosp.-East Loop, 814 S.W.2d 536, 537 (Tex. App.-Houston [1st Dist.] 1991, no writ (mand overruled)). In that order, we further determined that, to the extent that appellant's motion to reinstate addressed the timely filing of her amended notice of appeal, such motion would be carried with the case.
Analysis
Because appellant filed her amended notice of appeal and motion to reinstate beyond the time limit imposed by appellate rule, but within the fifteen-day period in which she could have moved to extend the filing deadline under rule 26.3, we consider the amended notice and motion to reinstate as an implied motion for extension of time to file a notice of appeal. Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003). Appellant's motion to reinstate and the affidavits attached thereto, read under a liberal standard of review, provide a reasonable explanation for the late filing of the amended notice of appeal. See id. Consequently, we conclude that appellant's amended notice of appeal was timely filed and will proceed to address appellant's complaints regarding the May 16, 2000 nunc pro tunc judgment.
Appellant raises five issues in her amended brief. Her first three issues generally attack the validity of the nunc pro tunc order. After reviewing this order, we conclude that it does not constitute a true judgment nunc pro tunc, nor is it a permissible clarification order under the family code.
A trial court may correct clerical errors in its judgment even after expiration of its plenary power. Tex. R. Civ. P. 306a(6); In re Dryden, 52 S.W.3d 257, 262 (Tex. App.-Corpus Christi 2001, orig. proceeding). However, the trial court may not correct judicial errors after the judgment becomes final. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986) (contrasting clerical and judicial errors). A clerical error results when there is a discrepancy between the entry of judgment in the official record and the judgment as it was actually rendered. Univeral Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex. 1971). A clerical error does not result from judicial reasoning or determination. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986). In contrast, a judicial error occurs when the court considers an issue and makes an erroneous decision. See Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58-59 (Tex. 1970). The question regarding whether the error is clerical or judicial is a question of law. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968); Dickens v. Willis, 957 S.W.2d 657, 659 (Tex. App.-Austin 1997, no pet.).
The family code also grants the trial court the power to enter further orders after judgment to clarify or enforce a divorce decree. See, e.g., TEX. FAM. CODE ANN. §§ 9.006, 9.008 (Vernon 2002). However, the code prohibits a court from substantively changing the provisions of an earlier order. See Dickens, 957 S.W.2d at 659. A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce. TEX. FAM. CODE ANN. § 9.007(a) (Vernon 1998). An order to enforce the division is limited to an order to assist in the implementation of or to clarify the prior order and may not alter or change the substantive division of property. Id. An order that alters the substantive division of property in a final divorce decree is "beyond the power of the divorce court and is unenforceable." Id. § 9.007(b); see also Tex. Fam. Code Ann. § 157.423 (Vernon Supp. 2004) (prohibiting substantive change in orders for clarification and enforcement of decrees affecting parent-child relationship).
The May 16, 2000 order differs from the November 16, 1999 order in several respects. We need only address one of these differences herein. Both orders award a minor child of the marriage a ten percent interest in realty awarded to the appellee. The original decree further provides in the following paragraph that appellee "shall hold harmless Raquel Flores Cisneros for any claims filed . . . against either party hereto arising out of any claim of interest in the 30 Acre tract mentioned in the preceding paragraph." The May 16, 2000 order lacks this language, and instead provides that appellee "shall execute a special warranty deed to [the minor child] in conformity herewith and record same as soon as practicable in conformity herewith."
There is nothing in the record to indicate that the November 16, 1999 order incorrectly stated the judgment actually rendered at that time. We conclude that the judgment nunc pro tunc changed the substantive rights of the parties under the decree, and therefore, the judgment nunc pro tunc corrected judicial, and not clerical, error. We further conclude that the order did not constitute a proper order for clarification or enforcement under the family code as it modified the substantive rights of the parties. See McGehee v. Epley, 661 S.W.2d 924, 926-27 (Tex. 1983).
The May 16, 2000 judgment nunc pro tunc is void. See Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973); Wood v. Griffin Brand, 671 S.W.2d 125, 132 (Tex. App.-Corpus Christi 1984, no writ). We sustain appellant's first three issues. We need not address appellant's remaining issues on grounds that they are complaints that would apply to the original judgment. Tex.R.App.P. 4.3(b).
Conclusion
We set aside the May 16, 2000 nunc pro tunc order and dismiss this appeal for want of jurisdiction. See Tex. Prop. Cas. Ins. Guar. Ass'n v. De Los Santos, 47 S.W.3d 584, 588 (Tex. App.-Corpus Christi 2001, no pet.)
Justice Kennedy not participating.