Smith v. Jones , 1988 Tex. App. LEXIS 1785 ( 1988 )

OPINION

PAUL PRESSLER, Justice.

A summary judgment was granted by the probate court denying appellant’s claim to the proceeds of three insurance policies on the life of her ex-husband William Reed Smith. We affirm.

On December 29, 1986, the district court of Fort Bend County granted the divorce sought by the parties and orally rendered judgment that the community estate would be divided according to the property settlement agreement dictated by them into the record. Each party was awarded, among other things, ownership of the life insurance policies insuring that party’s life. Four days later, prior to signing and entry of the judgment, appellant’s ex-husband died. At the time of Mr. Smith’s death, appellant was still listed as beneficiary on his life insurance policies.

Upon the death of Mr. Smith, appellant asserted a claim to the insurance proceeds, .claiming that since she was still named as beneficiary, there was the presumption that the parties intended for her to retain her beneficial interest in them. The probate court determined that the clear language of the divorce decree, which “divested” appellant of “any and all right, title and interest” in and to all personal property awarded to her husband, terminated appellant’s beneficial rights in the policies. Summary judgment was granted in favor of the representative of the estate.

Appellant challenges the summary judgment alleging that the final decree of divorce, upon which it is based, added the legal divestiture language and therefore exceeded the scope of the property agreement of the parties and the oral rendition of divorce. Appellant filed a Motion for entry of judgment nunc pro tunc with the district court in Fort Bend County seeking correction of this allegedly clerical error by the district court through removal of the complained of phrase. This motion was denied. Appellant then sought to mandamus that court to “correct the clerical error” and enter judgment nunc pro tunc. Because we have denied the mandamus, see Gloria Parker Smith v. The Honorable Thomas Stansbury, 754 S.W.2d 509 (Tex.App.-Houston [14th Dist.] 1988), the summary judgment granted by the probate court is affirmed.

Appellant’s first point of error claims that the probate court erred in granting summary judgment because the written divorce decree differed from the agreed judgment where there was no showing of any intent to deprive her of her beneficial interest. She argues that the absence of an affirmative statement in the record authorizing divestiture of either parties’ beneficial interests in the insurance policies is clear and convincing proof that her beneficial interest was intended to survive.

Our holding in the mandamus action is dispositive of this point of error. In her petition for writ of mandamus, appellant asked us to order correction of an allegedly clerical error. However, facts and circumstances surrounding the execution of the final decree of divorce indicated that the language was noted and approved by all counsel and appellant. Had the court failed to include such language, its division of the estate of the parties would have created a tenancy in common in the parties’ personal property potentially requiring future litigation. See Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977). Even if there were error in the inclusion of that language, any such error was judicial rather than clerical and, therefore, could not be corrected by entry of judgment nunc pro tunc. For this reason, the unappealed divorce decree stands as entered by the court and is sufficient to support the summary judgment.

Point of error number one is overruled.

Since appellant’s first point of error is dispositive of the appeal, point of error number two will not be considered. The summary judgment is affirmed.