Sometimes courts make mistakes. When a Texas divorce court makes a clerical error, the court has the power to correct that error for a period of time, generally within 30 days. If the error is not corrected before the court’s plenary power to correct has expired, it may still be corrected by a judgment nunc pro tunc. The court may only correct a clerical error through a judgment nunc pro tunc and cannot use a judgment nunc pro tunc to correct a judicial error.
A husband recently challenged a judgment nunc pro tunc on the grounds that the alleged error in the original judgment was not a clerical error. The parties had each signed the decree and approved it in form and substance, but the wife’s attorney approved it as to form only. The divorce court and all parties also signed another document, the Qualified Domestic Relations Order (QDRO), that awarded 35 percent of the husband’s military retirement pay to the wife. The divorce decree did not reflect this award.
The husband petitioned the court to amend the QDRO to match the decree, arguing the QDRO was an impermissible modification of the property division. The wife argued its omission was a clerical error in the divorce decree and that the decree was ambiguous. The husband argued the divorce court did not have subject matter jurisdiction to modify the decree.
The trial court found the decree to be unambiguous and found there was no clerical error and upheld the decree. The wife requested a hearing. The trial court then found there was an ambiguity in the order resulting from a clerical error. The court signed a judgment nunc pro tunc that amended the decree to award her 35 percent of the retirement income. The husband appealed.
The husband argued the judgment nunc pro tunc corrected a judicial error rather than a clerical error, and therefore constituted error. The wife argued the decree inaccurately stated the court’s true decision and was therefore a clerical error. The appeals court first considered whether there was evidence supporting a finding the divorce court had actually rendered a judgment that awarded the wife part of the retirement benefits. The wife presented evidence that the parties had agreed she would receive 35 percent of the retirement benefits. The record showed that the court had signed the decree and the QDRO at the same time. The appeals court found there was some evidence supporting a finding that the court had previously rendered judgment awarding the wife 35 percent of the retirement benefits.
The appeals court then had to determine if the error had been judicial or clerical. The court found the judgment that had been intended and rendered was that the wife receive 35 percent of the retirement benefits. The court did not have to engage in judicial reasoning or re-adjudicate any issues to correct the error. The decision had already been made in the QDRO, but the decree inaccurately reflected that decision. The appeals court found the nunc pro tunc judgment was proper and affirmed it.
The divorce decree needs to match the court’s judgment so it can be enforced. Parties should thoroughly review the decree. If you identify a mistake in your divorce decree, an experienced Texas divorce attorney can help you. Call McClure Law Group at 214.692.8200 to discuss your case.