Opinion
NO. 01-11-00128-CV
06-21-2012
LARISA JACKSON, Appellant v. VAGRAM SARADJIAN, Appellee
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Case No. 2009-11459
MEMORANDUM OPINION
This appeal raises the question of an associate judge's authority to render a final decree in a divorce proceeding. We hold that the associate judge had no such authority and that the trial court retained plenary power to render a final decree at a later date. We therefore affirm.
Background
After a bench trial, on October 5, 2010, the trial judge, the Honorable Annette Kuntz, orally rendered the court's divorce decree on the record. On November 22, 2010, the associate judge, the Honorable Roy Moore, signed a document purporting to be a final decree of divorce. The document was approved as to form by the lawyers for both appellant Larisa Jackson and appellee Vagram Saradjian. Although Judge Moore had been elected as district judge of the 245th District Court of Harris County, his term would not commence until January 1, 2011. On December 10, 2010, Jackson requested findings of fact and conclusions of law, which Judge Moore signed on January 13, 2011 as the district judge.
On January 3, 2011, Jackson filed a motion to declare the November 22 document void, arguing that an associate judge has no authority to render a final decree. Jackson argued that the "order should be set aside as void and a new trial should be granted." On February 21, 2011, District Judge Moore's ruling on the motion held that the November 22 document was a final decree and the court had lost plenary power 30 days after it was signed, i.e., December 22, 2010. Judge Moore held that the court had no jurisdiction to consider the January 3 motion, but he also held that a judgment nunc pro tunc should be signed in the interest of justice. On March 4, 2011, Judge Moore signed a "Final Decree of Divorce Nunc Pro Tunc." No postjudgment motions challenging the merits of either the November 22 document or March 4 decree were filed.
Jackson brings five issues on appeal. The first three issues assail the November 22 document: (1) whether an associate judge has the authority to sign a final divorce decree; (2) whether the trial court erred in not declaring the November 22 document void; and (3) whether the trial court erred in rendering judgment nunc pro tunc. In the remaining two issues, Jackson contends (1) a new trial is necessary because of alleged variances between the oral rendition at trial and the written decree and because of other alleged errors and (2) the trial court erred in awarding $300,000 in missing funds to Jackson as a part of the division of the community estate.
Discussion
This Court has previously held that the Family Code does not generally authorize an associate judge to render a final divorce decree. See Robles v. Robles, 965 S.W.2d 605, 609 n.4 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); see also TEX. FAM. CODE ANN. § 201.007 (West 2008) (listing powers of associate judge). Even in cases referred to the associate judge, the Code provides, with an exception inapplicable to this case, that a proposed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court's signing the proposed order or judgment. TEX. FAM. CODE ANN. § 201.013(b) (West 2008). There is no referral order in this case, so the November 22 document signed by the associate judge is without even the standing of a section 201.013(b) proposed judgment.
Because the November 22 document was not signed by the district judge, we hold that it has no legal effect as a judgment. As a result, the trial court did not lose plenary power on December 22, as no valid judgment had been signed. See TEX. R. CIV. P. 329b(d) (trial court retains plenary power over its judgment for 30 days if no proper postjudgment motion is timely filed). The trial court signed a final decree on March 4, 2011, and, even though it is improperly described in its caption as a "Final Decree of Divorce Nunc Pro Tunc," it is nonetheless the trial court's final judgment.
We agree with the thrust of Jackson's first two issues: that an associate judge does not have the authority to sign a final divorce decree and that the trial court incorrectly held that the document signed on November 22 was a valid final judgment over which the court had lost plenary power. But the rendition of a valid final decree on March 4, 2011 moots these issues.
On appeal, Jackson makes the following sub-argument at the end of her first issue: "Further the Associate Judge lacked the authority to render in this case or make any changes to the Presiding Judge's rendition because he did not hear evidence in this case. All evidence was presented to the Presiding Judge." This argument was not preserved in the trial court, nor does Jackson cite any authority in her appellate brief for this proposition. See TEX. R. APP. P. 33.1(a)(1) (requiring preservation of error), 38.1(i) (requiring appellant's brief to contain appropriate citation to authorities).
Even were we to look past the waiver issues, this case is distinguishable from the authority Jackson should have cited, W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783 (Tex. App.—Houston [1st Dist.] 1990, no writ). This Court in W.C. Banks held that a judge may not render a written judgment if the judge heard none of the evidence. Id. at 785-86 (citing TEX. R. CIV. P. 330(g)). But we also acknowledged that if the judge who heard the case also set forth in detail the matter to be determined, then a successor judge has the power to sign a written judgment. Id. at 786. Jackson acknowledges that Judge Kuntz orally rendered a specific decree on the record and later argues in her fourth issue that the written decree varies from the specific oral rendition.
Jackson argues in issue three that the decree is an improper judgment nunc pro tunc. A judgment nunc pro tunc is proper only if the trial court is correcting clerical error and the court's plenary power has lapsed. See Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986). In this case, no final decree had been rendered before March 4, 2011, so the description of the March 4 decree as being rendered nunc pro tunc was error in that the "nunc pro tunc" designation related the decree back in time to November 22, 2010, thereby improperly adjudicating the parties' rights and responsibilities at an earlier date, e.g., pre- and postjudgment interest calculations based on a November 22, 2010 judgment, rather than March 4, 2011. But, as we have explained, it is a proper judgment. Accordingly, we sustain issue three only to the extent of modifying the March 4 decree to delete the words "nunc pro tunc." See TEX. R. APP. P. 43.2(b).
In her fourth issue, Jackson contends a new trial is necessary because of alleged variances between the trial court's oral rendition of judgment and the written decree, as well as other alleged errors. Jackson admits in her appellate brief that the problems she raises are present in both the November 22 document and the March 4 decree. Jackson, however, has neither filed a postjudgment motion in the trial court raising such errors in the decree, nor has she argued that they constitute fundamental error. Accordingly, we hold that she has not preserved her complaints about the trial court not granting a new trial for appellate review. See TEX. R. APP. P. 33.1(a)(1) (requiring preservation of error). We overrule Jackson's fourth issue.
In her fifth issue, Jackson claims there is no evidence to support the award of $300,000 in missing funds to her as part of the division of the community estate. Such "no evidence" issues require preservation by a motion for instructed verdict, a motion for judgment notwithstanding the verdict, an objection to the submission of the issue to the jury, a motion to disregard the jury's answer, or a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991). As none of these motions appear in the record, we hold that Jackson has not preserved this complaint for appellate review. See TEX. R. APP. P. 33.1(a)(1). We overrule Jackson's fifth issue.
Conclusion
We modify the trial court's March 4, 2011 final divorce decree to delete the words "Nunc Pro Tunc" from the caption "Final Decree of Divorce Nunc Pro Tunc." As so modified, we affirm. See TEX. R. APP. P. 43.2(b).
Jim Sharp
Justice
Panel consists of Justices Keyes, Bland, and Sharp.