Opinion
NO. 09-10-00521-CV
04-26-2012
VICKIE SMITH GEDNEY, Appellant v. GREGORY GERALD GEDNEY, Appellee
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 07-03-02676 CV
MEMORANDUM OPINION
Gregory Gerald Gedney filed a petition for divorce from Vickie Smith Gedney. The trial court granted the divorce and signed a final judgment. Neither party appealed. A year later, Greg filed a motion for judgment nunc pro tunc and a motion for contempt and enforcement. The trial court signed the judgment nunc pro tunc. Three months later, the trial court found Vickie in contempt, sentenced her to thirty days in jail on each violation, suspended the sentence, placed her on community supervision for five years with conditions, and ordered her to pay Greg's expenses of $1,952.80 and attorney fees of $2,400. Vickie appeals from the judgment nunc pro tunc and from the contempt order.
CONTEMPT
Vickie argues that the trial court's contempt order must be reversed. Generally, judgments of contempt are not appealable orders. See Tex. Animal Health Comm'n v. Nunley, 647 S.W.2d 951, 952 (Tex. 1983); Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967) ("In contempt proceedings, however, there is no remedy by appeal."). Courts have held that even when a contempt order is appealed along with a judgment that is appealable, a court of appeals lacks jurisdiction to review a contempt order on direct appeal. Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001, pet. denied); Metzger v. Sebek, 892 S.W.2d 20, 54 (Tex. App.—Houston [1st Dist.] 1994, writ denied). One court reasoned that contempt orders are not appealable because they "are not concerned with disposing of all claims and parties before the court, as are judgments; instead, contempt proceedings involve a court's enforcement of its own orders, regardless of the status of the claims between the parties before it." In re Office of Attorney Gen. of Tex., 215 S.W.3d 913, 915-16 (Tex. App.—Fort Worth 2007, orig. proceeding). Vickie does not cite to any authority that provides for an appeal to be taken from a trial court's contempt order. See Skelton v. Plainscapital Bank, No. 02-10-00398-CV, 2011 WL 856952, at *1 (Tex. App.—Fort Worth Mar. 10, 2011, no pet.); In re Naylor, 120 S.W.3d 498, 500 (Tex. App.—Texarkana 2003, orig. proceeding); Ex parte Jones, 602 S.W.2d 400, 402 (Tex. Civ. App.—Waco 1980, orig. proceeding).
A contempt judgment is attacked by a petition for writ of habeas corpus when the contemnor is restrained, or by a petition for writ of mandamus if the contemnor is not restrained. See Ex parte Calhoun, 127 Tex. 54, 91 S.W.2d 1047, 1048 (1936) (habeas corpus); Cadle Co., 50 S.W.3d at 671 (habeas corpus and mandamus). Though not a contempt case, we note that the Supreme Court recently considered an issue raised in an appeal as if presented by mandamus petition; the Court essentially converted the interlocutory appeal to a mandamus proceeding. See CMH Homes v. Perez, 340 S.W.3d 444, 451-54 (Tex. 2011); see also In re D. Wilson Constr. Co., 196 S.W.3d 774, 784 (Tex. 2006) (Brister, J., concurring). We also note, as a general principle, most interlocutory orders are appealable when merged into the final judgment. See Webb v. Jorns, 488 S.W.2d 407, 408-09 (Tex. 1972); In re Guardianship of Miller, 299 S.W.3d 179, 184 (Tex. App.—Dallas 2009, no pet.). Nevertheless, until the Supreme Court addresses a contempt order in a direct appeal from a final judgment, we consider ourselves bound to follow the "firmly entrenched and seldom challenged" rule of no appeal of contempt orders. See Ex parte Tucci, 859 S.W.2d 1, 66 n.7 (Tex. 1993) (Hecht, J., dissenting) ("The rule that no appeal will lie from a judgment of contempt is dubious at best, but firmly entrenched and seldom challenged."); see also Nunley, 647 S.W.2d at 952. This Court cannot address the merits of issue two in this appeal. See Nunley, 647 S.W.2d at 952-53, Cardwell, 416 S.W.2d at 384.
JUDGMENT NUNC PRO TUNC
In issue one, Vickie argues the judgment nunc pro tunc is void, because the trial court lacked jurisdiction to make substantive changes to the agreed final decree of divorce through a judgment nunc pro tunc. The changes made by the judgment nunc pro tunc primarily relate to issues involving the child, including possession of and access to the child, holiday visitation, travel costs, and payment of one-half of private school tuition.
Greg contends that Vickie, by waging a general attack on the changes made by the judgment nunc pro tunc, has failed to properly brief her case. Vickie cites cases to support her argument. She names the changes that she alleges are substantive and not subject to a judgment nunc pro tunc. We decline to rule Vickie has waived her issue. See Tex. R. App. P. 38.9 ("substantial compliance").
Under the Texas Family Code, the trial court has continuing jurisdiction over a suit affecting the parent-child relationship to consider matters relating to conservatorship, child support, possession, and visitation. See Tex. Fam. Code Ann. §§ 101.032(a), 155.001(a) (West 2008). Generally, a party seeking to change a final order relating to these issues must file a motion to modify and satisfy the requirements of the Family Code. See id. §§ 156.001-156.410 (West 2008 & Supp. 2011). Instead, Greg filed a "Motion for Judgment Nunc Pro Tunc and Motion for Clarification." He contends that the changes he sought in the divorce decree were simply clerical errors. At the time of the hearing on Greg's motion, Vickie's motion to modify had been filed, but was not under consideration by the trial court.
Non-substantive changes to a judgment in the family law context can be made by a clarification order under the Texas Family Code or a judgment nunc pro tunc under Rule 316 of the Texas Rules of Civil Procedure. See Tex. Fam. Code Ann. §§ 157.421, 157.423 (West 2008); Tex. R. Civ. P. 316. A clarification order is authorized when a judgment is not specific enough to be enforced by contempt, and the change is not substantive. See Tex. Fam. Code Ann. §§ 157.421, 157.423; Dickens v. Willis, 957 S.W.2d 657, 659-61 (Tex. App.—Austin 1997, no pet.). A trial court can correct a judgment by a judgment nunc pro tunc if the error is only a clerical one. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986); Tex. R. Civ. P. 316; see In re Marriage of Ward, 137 S.W.3d 910, 913 (Tex. App.—Texarkana 2004, no pet.) ("A clarification order is analogous to a judgment nunc pro tunc in that it cannot substantively change a final order.").
A judicial or substantive error arises from a mistake in law or fact that determines the case's outcome and that requires the exercise of judicial reasoning or determination to correct. W. Tex. State Bank v. Gen. Res. Mgmt. Corp., 723 S.W.2d 304, 306 (Tex. App.— Austin 1987, writ ref'd n.r.e.). Clerical errors are not the result of judicial reasoning or determination. Andrews, 702 S.W.2d at 585. When the same trial judge grants the original judgment and the nunc-pro-tunc judgment, a presumption arises that the judge's personal recollection supports the finding of clerical error. Rawlins v. Rawlins, 324 S.W.3d 852, 855 (Tex. App.—Houston [14th Dist.] 2010, no pet.). In deciding whether a correction is a clerical or judicial error, the reviewing court looks to the judgment actually rendered. Gardner v. Estate of Trader, 333 S.W.3d 331, 334 (Tex. App.—El Paso 2010, no pet.); see also In re Daredia, 317 S.W.3d 247, 249 (Tex. 2010) ("'[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.'") (quoting Dikeman v. Snell, 490 S.W.2d 183, 185-86 (Tex. 1973)).
In the oral rendition of judgment, the trial court stated that child support had already been agreed on at $1,500 per month. The parties would be joint managing conservators. Vickie would determine the residence of the child. The property split would be 55%/45%; Vickie would receive 55%. Vickie would not be awarded spousal support. Greg would provide the child's health insurance. The trial judge instructed Vickie's attorney to put language in the decree that "mirrors what I heard in this courtroom which is that mother is very willing to be generous with visitation for dad because father travels and I think it would be just great if every time he gets near Georgia, he can come and visit that child or spend a weekend or do whatever he wants to do." The trial judge also indicated a need for phone access between the parents and the child. The oral rendition was silent as to other provisions.
Greg's attorney filed a proposed decree. At some point, Vickie's attorney submitted a draft of a divorce decree to Greg's attorney. The proposed drafts were not signed by the judge. The trial court later signed a different written judgment, and both parties' attorneys signed the written judgment under the heading "Approved as to Form Only." Neither party appealed the judgment.
During the hearing on the motion for judgment nunc pro tunc, the parties noted that certain provisions in the written judgment were clerical errors, and those corrections were made to the judgment. There was no agreement, however, that provisions in the decree regarding times and places of drop-off and pick-up of the child, payment of private school tuition, the July 4th holiday, spring break visitation, Christmas holiday visitation, and the child's travel expenses were clerical errors. The written judgment included provisions that were not contained in the oral rendition. In re Daredia, 317 S.W.3d at 249.
The following exchange took place at the hearing on the motion for judgment nunc pro tunc:
[Greg's Attorney]: We're trying to correct the judgment -- all we can do is correct what was entered. So, if it was entered, it should have been -- you know, we agreed --The trial judge relied on the standard possession order, as well as the contents of Vickie's proposed draft. A judgment nunc pro tunc should be based on differences between the rendition of judgment and the written judgment, and only when the differences are clerical errors. See Gardner, 333 S.W.3d at 334; see also Dikeman, 490 S.W.2d at 185-86. The additions and changes to the written judgment regarding drop-off and pick-up, spring break, Christmas break, July 4th visitation, and private school tuition are not the correction of clerical errors.
The Court: Nothing was entered. And what I'm defaulting to in the possession area is a standard possession order.
[Greg's Attorney]: Right.
The Court: The attorneys should have brought that out as something that was different. And you can certainly move to modify that, and I can hear evidence then. But what I would hear evidence today about is only if that differs from what was rendered. And with that being so silent on any of those issues, the only thing I can default to is the standard possession order. So, that's what I'm going to do which would not include any special for 4th of July.
The substantive changes are reflected by the following section and subsections of Greg's Motion for Judgment Nunc Pro Tunc and Motion for Clarification: section 5(a)(1),(2),(3), (b)(1),(2),(3), (c)(1),(2), (d)(1), (e)(1), (f)(1).
A petition to modify had been filed, but was not set for hearing before the court. The trial court had jurisdiction to hear this case. The trial court could make changes, assuming the appropriate procedure was followed. The substantive changes made by the judgment nunc pro tunc were made in error. We reverse the judgment nunc pro tunc and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
___________________________
DAVID GAULTNEY
Justice
Before McKeithen, C.J., Gaultney and Kreger, JJ.