Every new year results in mistakes because we are so used to writing or typing “2014” instead of “2015.” Rawlins v. Rawlins, 324 S.W.3d 852, 855 (Tex. App.-Houston [14th Dist.] 2010, no pet.) is an example of how a mistake in the year used in an order can screw a client and not be fixable later. This case also includes a sublime ass chewing of an attorney for being a sleaze bag.
The parents were divorced on January 9, 2007. Over two years later, on March 12, 2009, Mr. Rawlings filed a motion for judgment nunc pro tunc, alleging that the Agreed Final Decree of Divorce contained a clerical error in the date child support was to begin. The divorce decree said child support started January 5, 2006 instead of January 5, 2007. The mother argued that the error was not a clerical error but a judicial error, and the trial court could not correct by judgment nunc pro tunc. At the hearing on the requested nunc pro tunc order, Mr. Rawlings testified he and his lawyer appeared on January 9, 2007 to prove up the divorce, that his ex-wife had filed for divorce in September 2006, and the parties agreed to temporary orders for child support to begin in October 2006. Mr. Rawlings testified that provision in the Agreed Final Decree of Divorce that said child support was to begin on January 5, 2006 was incorrect and should have read January 5, 2007. Mr. Rawlings testified that his ex-wife (who was an attorney) knew there was a mistake in the Agreed Final Decree of Divorce regarding child support and indicated as much to him. The ex-wife testified that she filed for divorce in September 2006, she was not in court on the day the Agreed Final Decree of Divorce was proved up, and she agreed to the terms of the Agreed Final Decree of Divorce.
The trial court took judicial notice of the file and noted at the hearing that (1) the petition for divorce was filed on September 25, 2006 and, according to the petition, the parties did not cease to live together until September 8, 2006; and (2) there were temporary orders entered on October 10, 2006 that indicated child support was to begin October 21, 2006. Based on this information, the trial court concluded the dates on pages one and seventeen of the Agreed Final Decree of Divorce were clerical errors. The trial court signed an order granting the motion for judgment nunc pro tunc, finding the following two clerical errors in the Agreed Final Decree of Divorce: (1) the date on the first line of the judgment which read, ” On January 9, 2006, the Court heard this case” should have read ” On January 9, 2007, the Court heard this case” and (2) the date on which child support was to begin should have read ” January 5, 2007″ and not ” January 5, 2006.”
The Court of Appeals stated:
The trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform its judgment within 30 days after the judgment is signed. Tex. R. Civ. P. 329b(d). Once the trial court’s plenary power expires, it cannot set its judgment aside except by a bill of review for sufficient cause. Tex. R. Civ. P. 329b(f). However, the trial court may at any time correct a clerical error in the judgment by entering a judgment nunc pro tunc. Tex. R. Civ. P. 316, 329b(f).
A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered by the court, and does not arise from judicial reasoning or determination. A judicial error, on the other hand, occurs in the rendering, as opposed to the entering, of a judgment. ” Judges render judgment; clerks enter them on the minutes.” A judgment is rendered when the decision is officially announced either orally in open court or by memorandum filed with the clerk. Errors in judgments are not ipso facto clerical errors merely because they are the result of an inadvertent error. The trial court ” can only correct the entry of a final written judgment that incorrectly states the judgment actually rendered.”
When deciding whether an error is clerical or judicial, this court must look to the judgment actually rendered and not to the judgment that should or might have been rendered. Even if the trial court renders judgment incorrectly, the trial court has no nunc pro tunc power to correct or modify the entered judgment which precisely reflects the incorrect rendition after its plenary jurisdiction expires. Whether an error is judicial or clerical is a question of law. “The judicial or clerical question becomes a question of law only after the trial court factually determines whether it previously rendered judgment and the judgment’s contents.” A judgment rendered to correct a judicial error after plenary power has expired is void.
A judgment nunc pro tunc should be granted if the evidence is clear and convincing that a clerical error was made. Evidence may be in the form of oral testimony of witnesses, written documents, the court’s docket, and the judge’s personal recollection. If the same trial judge who renders the 6 judgment grants the nunc pro tunc motion, a presumption arises that the judge’s personal recollection supports the finding of clerical error.
Id. at 855 (citations omitted).
The Court of Appeals did not want to let the ex-wife win, but it had no choice because:
Neither party presented evidence at the hearing on the motion for judgment nunc pro tunc that the trial court rendered a different judgment in writing or orally prior to signing the Agreed Final Decree of Divorce. There is no record from the day on which the trial court heard the Agreed Final Decree of Divorce because the parties waived the presence of a court reporter.
. . . .
The trial court’s docket sheet, which contains the trial judge’s initials and signature, states: ” Respondent, Robert Rawlins, Jr. and attorney present. Testimony by Respondent presenting Agreed Final Decree of Divorce as evidence by signature of Petitioner and her attorney. Enter Agreed Final Decree of Divorce.” Thus, the only evidence in the record regarding the contents of the judgment the trial court actually rendered is the signed Agreed Final Decree of Divorce.
A proper nunc pro tunc is one in which the judgment as entered actually differs from the judgment as rendered; in that scenario, ” a nunc pro tunc judgment will only serve to ensure that the judgment as rendered is actually entered of record.” This is true even if, as Father asserted, the child-support start date in the Agreed Final Decree of Divorce clearly is not the date contemplated by the parties. is also true even if the record indicates the mistake most likely arose from a drafting error that the parties overlooked. Because nothing in the record shows that there is a discrepancy between the judgment as rendered and the judgment as entered, we are compelled by current law to hold that the error in the child-support start date was a judicial error. Therefore, Mother’s issue is sustained.
Id. at 856-7 (citations omitted).
The Court of Appeals then delivered an epic blast at the ex-wife who was fighting for a year of child support she knew she did not deserve.
This outcome, while compelled by current Texas law, is admittedly a repugnant result. Because of an apparent typographical or drafting error, Mother will receive a windfall of undeserved child-support payments encompassing a period of time when the family was still intact and living together. The fact that Mother is a Texas attorney, knows that the judgment contained a mistake, and is exploiting that error to her own financial advantage, makes the result even more intolerable. We would hope that an attorney, who is charged with safeguarding the integrity of the legal process, would not insist upon erroneous back child-support payments-even to the point of appealing from the trial court’s rather transparent efforts to correct the mistake. Regrettably, some lawyers subscribe to a different code of personal and professional ethics. As former United States Supreme Court Justice Potter Stewart observed, ” [T]here is a big difference between what you have a right to do and what is right to do.”
Id. at 857.