Carl D. Sederholm v. Michelle Neville and the Office of the Attorney General of Texas ( 2014 )


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  • Opinion issued June 12, 2014
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-12-00215-CV
    ———————————
    CARL D. SEDERHOLM, Appellant
    V.
    MICHELLE NEVILLE AND THE OFFICE OF THE ATTORNEY
    GENERAL OF TEXAS, Appellees
    On Appeal from the 309th District Court
    Harris County, Texas
    Trial Court Case No. 0567982
    MEMORANDUM OPINION
    Michelle Neville, appellee, filed a motion for judgment nunc pro tunc on an
    order enforcing child support and medical support obligations. The trial court
    signed the order. In two issues, Carl D. Sederholm, appellant, argues that the trial
    court erred by rendering the judgment nunc pro tunc.
    We modify the judgment and affirm as modified.
    Background
    In January, 2008 Neville filed a motion for enforcement of child support
    against Sederholm for his failure to pay the vast majority of his child support
    obligations for ten years. The trial court found Sederholm in contempt. After two
    weeks in jail, the trial court held a hearing on the judgment to be rendered. During
    the hearing, the trial court announced, “I’m inclined to put a very low repayment
    like $50 a month until the child finishes high school and then it will be the regular
    child support plus the 50 towards repayment of arrearage.”
    At the conclusion of the hearing, the trial court announced the significant
    terms for the judgment. Specifically, the trial court explained,
    THE COURT: We can go back on the record in our contempt case
    and it is the Court’s understanding and let me just outline this
    that the child’s father has agreed to pay $1,600 on by or before
    about 3:00p.m. today. And the Court has agreed that upon the
    payment of $1,600, a receipt for that payment, the Court will
    suspend your commitment, will sign a release ordered today
    suspending the commitment to jail, sign the release order today,
    place you on probation, community service probation, I think is
    what they call it, through the domestic relations office and then
    you will need to report to them and that is going to be kind of
    monitoring you for the child support. I am going to enter an
    arrearage judgment in the amount determined by the Attorney
    General’s Office giving you credit for your payments you have
    made as well as, I think we will call, accidental credit of a
    couple $3,000 roughly which is the difference between the
    Wharton County arrearage judgment and what the Attorney
    General’s Office thinks the arrearage is the Wharton County
    judgment was lower. Remember the dollar amount roughly?
    2
    MS. DENNIS: It was roughly about $4,000, a little less.
    THE COURT: I am going to -- you have got the benefit of that. I am
    going to take the Wharton County judgment even though it was
    too low. We are going to add the current arrearage. I am going
    to order that you begin paying on March 1st the regular child
    support of $400. Is that the correct amount?
    MS. DENNIS: Yes, Judge.
    THE COURT: Plus $50 towards the arrearage and $52 on the health
    insurance.
    MS. DENNIS: Your Honor, if I can add there is a medical support
    arrearage also of the 72 -- approximately hundred dollars. Is
    there going to be an amount to be paid towards that judgment
    because they are two separate judgments?
    THE COURT: $80 dollars. And then once the child is emancipated,
    meaning he finishes high school upon graduation, the same
    payments are to be made but they are to be addressed just to
    and credited just to the arrearage. Now I am going to give you
    two --
    [APPELLANT]: Your Honor, when you said March would that mean
    that when I get out today, I am already behind or --
    THE COURT: I’m sorry. I do need --
    [APPELLANT]: I’m listening very carefully.
    THE COURT: Good. I’m glad you are. Let’s start April 1st. It
    should be the 1st and 15th.
    MS. DENNIS: Right. He is still responsible for his payments for this
    month, though, right, his March 15th payment which hasn’t
    accrued yet?
    THE COURT: I guess whatever the regular payment on the 15th and
    then we will start the arrearage payments and everything on the
    1st of April. Aren’t they divided the 1st and the 15th?
    3
    MS. DENNIS: His payments are, your Honor.
    THE COURT: Yeah, continue the 1st and 15th.
    The judgment was prepared, and the trial court signed it that day. The
    written judgment, however, contained a number of variances from the judgment
    announced by the trial court.
    On July 12, 2011, Neville filed a motion for judgment nunc pro tunc on the
    2008 judgment. The trial court granted the motion and signed a judgment nunc pro
    tunc for the 2008 judgment.
    Judgment Nunc Pro Tunc
    In two issues, Sederholm argues that the trial court erred by rendering the
    judgment nunc pro tunc.
    A.    Standard of Review & Applicable Law
    Generally, the trial court loses jurisdiction to modify its judgment once
    plenary power has expired. Xiaodong Li v. DDX Group Inv., LLC, 
    404 S.W.3d 58
    ,
    63 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Even after plenary power has
    expired, however, a trial court can correct “clerical errors” in a judgment by
    rendering a judgment nunc pro tunc. TEX. R. CIV. P. 316, 329b(f).
    A clerical error is a discrepancy between the judgment that was rendered and
    the judgment that was entered. Barton v. Gillespie, 
    178 S.W.3d 121
    , 126 (Tex.
    App.—Houston [1st Dist.] 2005, no pet.). “Judgment is rendered when the trial
    4
    court officially announces its decision in open court or by written memorandum
    filed with the clerk.” S & A Rest. Corp. v. Leal, 
    892 S.W.2d 855
    , 857 (Tex. 1995).
    A clerical error occurs when the later, written judgment that is entered into the
    record varies from the terms pronounced in the rendered judgment. See 
    Barton, 178 S.W.3d at 126
    –27 (holding changes to property division in nunc pro tunc
    divorce decree in order to reflect property division in rendered judgment was
    correction of clerical error).
    In contrast, “[a] judicial error occurs in the rendering, rather than the
    entering of the judgment.” 
    Id. at 126
    (citing Escobar v. Escobar, 
    711 S.W.2d 230
    ,
    231 (Tex. 1986)). It arises from a mistake of law or fact that requires judicial
    reasoning or determination. Butler v. Cont’l Airlines, Inc., 
    31 S.W.3d 642
    , 647
    (Tex. App.—Houston [1st Dist.] 2000, pet. denied). Judicial errors cannot be
    corrected after plenary power expires. 
    Barton, 178 S.W.3d at 126
    . “Even if the
    trial court incorrectly rendered judgment, it cannot alter a written judgment that
    precisely reflects the incorrect rendition.” Hernandez v. Lopez, 
    288 S.W.3d 180
    ,
    185 (Tex. App.—Houston [1st Dist.] 2009, no pet.). If an error is determined to be
    judicial rather than clerical, the change is void. Tex. Dep’t of Transp. v. A.P.I. Pipe
    & Supply, LLC, 
    397 S.W.3d 162
    , 167 (Tex. 2013).
    In order for a judgment nunc pro tunc to be properly granted, the evidence
    must be clear and convincing that a clerical error was made. Hernandez, 
    288 5 S.W.3d at 185
    .      Evidence may be from oral testimony of witnesses, written
    documents, previous judgments, docket entries, or the trial judge’s personal
    recollection. 
    Id. Whether an
    error in the judgment is clerical or judicial is a question of law.
    
    Escobar, 711 S.W.2d at 232
    . Questions of law are reviewed de novo. In re
    Humphreys, 
    880 S.W.2d 402
    , 404 (Tex. 1994). In contrast, whether the trial court
    pronounced judgment orally and the terms of that pronouncement are questions of
    fact. 
    Hernandez, 288 S.W.3d at 185
    (citing 
    Escobar, 711 S.W.2d at 232
    ). We
    review questions of fact for an abuse of discretion. See State v. $217,590.00 in
    U.S. Currency, 
    18 S.W.3d 631
    , 633 (Tex. 2000) (holding mixed questions of law
    and fact are reviewed for abuse of discretion). A trial court abuses its discretion
    when it acts in an arbitrary or unreasonable manner, or if it acts without reference
    to any guiding rules or principles. Tex. Dept. of Human Servs. v. E.B., 
    802 S.W.2d 647
    , 649 (Tex. 1990).
    B.    Analysis
    Sederholm argues that the errors in the entered judgment were not clerical
    errors and, accordingly, could not be corrected by a judgment nunc pro tunc. The
    Office of the Attorney General argues that there were clerical errors in the
    judgment that was entered in 2008 that could be corrected by a judgment nunc pro
    tunc. The OAG also argues that some modifications in the judgment nunc pro tunc
    6
    were not corrections of clerical error. Accordingly, the Office of the Attorney
    General requests that we modify the judgment nunc pro tunc and affirm the
    judgment as modified. We agree with the Office of the Attorney General.
    The first variance from the entered judgment to the judgment nunc pro tunc
    is a date. The entered judgment includes a determination that Sederholm had
    previously been ordered to pay child support “semi-monthly, beginning
    10/01/19975.” This is not a valid date. The judgment nunc pro tunc corrected that
    date to “10/01/1997.” We hold that the entered judgment contained a clerical error
    for the date and that, accordingly, the correction in the judgment nun pro tunc for
    this date is valid. See SLT Dealer Group, Ltd. v. AmeriCredit Fin. Servs., Inc., 
    336 S.W.3d 822
    , 832 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (affirming
    correction of clear typographical error).
    The next variance is the insertion of a one-sentence paragraph regarding
    child support. The added sentence provides, “IT IS ORDERED that CARL D
    SEDERHOLM shall pay his current child support obligation of $200.00 semi-
    monthly until the child graduates from high school or is otherwise emancipated.”
    This was an explicit part of the trial court’s rendered judgment that was missing
    from the entered judgment. We hold there is no error in its inclusion in the
    judgment nunc pro tunc. See Andrews v. Koch, 
    702 S.W.2d 584
    , 585–86 (Tex.
    7
    1986) (affirming trial court’s addition of conveyance of easement in judgment
    nunc pro tunc confirming sale of property in probate proceeding).
    The next paragraph in the entered judgment provides, “If CARL D
    SEDERHOLM has not paid the judgment in full by the date his child support
    obligation ends, the Court ORDERS him to pay the remainder of said judgment by
    paying $__________ each month on or before the same day of each month until
    the arrearage is paid in full.” The judgment nunc pro tunc has two changes to this
    sentence. First, it changes the blank line to $450.00. Second, it inserts “effective
    June 1, 2008; and” after the first “each month.”
    The trial court explicitly ruled that, after the child was emancipated,
    Sederholm would continue to pay the same amount as his monthly child support
    payments ($400) and his arrearage payments ($50), except that the total would then
    be applied to arrearage. The entered judgment reflected this intent, except that it
    left out the amount to be paid for arrearage. In the judgment nunc pro tunc, the
    trial court replaced the blank with $450. Determining the terms of the trial court’s
    pronounced judgment is a question of fact.         
    Hernandez, 288 S.W.3d at 185
    .
    Ordering payment of $450 in monthly arrearage after the child was emancipated is
    consistent with the trial court’s pronouncement in the rendered judgment.
    Accordingly, Sederholm has failed to establish that the trial court abused its
    8
    discretion by determining that the amount of post-emancipation arrearage payment
    was $450 instead of nothing.
    The trial court did not, however, provide a specific date when the child-
    support obligation would end and the larger arrearage would take effect. While the
    date is likely determinable, such a determination involves resolving when the child
    would be emancipated. This involves judicial reasoning, and it was not made by
    the trial court in its rendition of the judgment. See 
    Butler, 31 S.W.3d at 647
    (holding judicial error involves judicial reasoning or determination). Accordingly,
    this date must be removed.
    The same paragraph in the judgment nunc pro tunc adds a sentence that was
    not present in the entered judgment. That sentence asserts, “The court’s order
    setting payment on a child support judgment or on a medical support judgment
    does not preclude or limit the use of any other means of enforcement of the
    judgment.” This same sentence was also added to the judgment nunc pro tunc in
    the portion regarding medical support. The trial court made no mention of this
    requirement in its rendered judgment. Accordingly, it is not a clerical error and
    both instances of the sentence must be removed.
    The next variance is the insertion of a one-sentence paragraph regarding
    medical support. The added sentence provides, “IT IS ORDERED that CARL D
    SEDERHOLM shall pay his current medical support obligation of $52.00 monthly
    9
    through May 31, 2008.” The trial court explicitly required Sederholm to continue
    paying $52 per month for medical support. It did not provide a specific date,
    however. Instead, the instructions were to continue paying until the child was
    emancipated. Accordingly, the judgment nunc pro tunc must be reformed to
    reflect that.
    The next variance in the entered judgment required Sederholm to pay $8 per
    month to be applied towards medical support arrearage. The trial court actually
    required Sederholm to pay $80 per month for this arrearage. The judgment nunc
    pro tunc correctly made that change.
    For the next variance, the entered judgment provides, “Past due support is
    not an installment debt and the entire judgment is now due and owing.” The
    judgment nunc pro tunc changes “Past due support” to “Any judgment(s) rendered
    herein.” The trial court made no mention of this requirement when it rendered
    judgment. Accordingly, it cannot be changed by a judgment nunc pro tunc.
    The entered judgment required Sederhold to send his payments for court
    costs to the district clerk at the time, Theresa Chang. The judgment nunc pro tunc
    changes the name to the current district clerk, Chris Daniels. This does not correct
    a clerical error. Accordingly, it must be removed.
    In the portion of the judgment concerning punitive contempt, the judgment
    nunc pro tunc inserts a paragraph ordering the Harris County Sheriff to commit
    10
    Sederholm to county jail. This requirement was not mentioned by the trial court in
    rendering its judgment. Accordingly, it must be removed.
    Following the portion of the judgment concerning punitive contempt, both
    the entered judgment and the judgment nunc pro tunc have an “Exhibit A,”
    outlining the terms of Sederholm’s community supervision. The entered judgment
    leaves blank the space meant to identify who was placed on community
    supervision. The judgment nunc pro tunc correctly identifies Sederholm as that
    person. In rendering judgment, the first thing the trial court mentioned was the
    plan to place Sederholm on community supervision. Accordingly, filling in his
    name in the judgment nunc pro tunc is permissible.
    In that same paragraph, the exhibit sets the term of community supervision
    for 120 months. In the judgment nunc pro tunc, there is a notation that the
    effective date is March 7, 2008. The trial court explained at the hearing that
    Sederholm had agreed to pay the set amount by 3:00 p.m. that day—March 7,
    2008. The trial court also explained that, if Sederholm did pay that amount, the
    trial court would sign the judgment releasing him on community supervision that
    day. The judgment was, in fact, signed that day. Accordingly, this inclusion of the
    effective date follows the trial court’s rendered judgment.
    The exhibit to the entered judgment also establishes dates for Sederholm to
    attend compliance hearings. The judgment nunc pro tunc has the same provisions
    11
    except that one sentence has been removed. That sentence provides, “At the
    compliance hearing the Court will hear evidence as to CARL D SEDERHOLM’s
    compliance with the above terms and conditions of community supervision and
    continue, modify, or revoke his community supervision as the evidence warrants.”
    The trial court made no specific reference to this term in its rendered judgment.
    We have found no authority suggesting that a judgment nunc pro tunc can be
    used to remove text from an entered judgment simply by virtue of the fact that it
    was not specifically mentioned in the rendered judgment. The entered judgment in
    this case has far more detail than the trial court’s rendered judgment, and the trial
    court signed it, approving it. Unless there is proof that the trial court specifically
    excluded a provision in its rendered judgment that appeared in the entered
    judgment, we find no basis to support removing language that appeared in the
    entered judgment. See 
    Barton, 178 S.W.3d at 126
    (holding clerical error exists
    when entered judgment varies from terms pronounced in rendered judgment).
    Next, the judgment nunc pro tunc attempts to update some of the personal
    identifying information of the parties, such as their current residence and driver’s
    license numbers. The parties’ personal identifying information was not mentioned
    at any point during the hearing in which the trial court rendered judgment.
    Accordingly, these changes cannot be made in a judgment nunc pro tunc.
    12
    Finally, both the entered judgment and the judgment nunc pro tunc have a
    space to identify the “[e]xpected termination date of obligation to pay child support
    and of orders for possession of, or access to, a child (date of expected
    emancipation of all minors).” The entered judgment left this space blank, while
    the judgment nunc pro tunc inserted the date “5/31/2008.” As we have already
    noted, the trial court did not announce the date of emancipation in its rendered
    judgment. Determining the date of emancipation involves judicial reasoning. See
    
    Butler, 31 S.W.3d at 647
    (holding judicial error involves judicial reasoning or
    determination). Accordingly, this date must be removed.
    Portions of the entered judgment did not conform to the rendered judgment.
    These changes were permissible in a judgment nunc pro tunc. The changes in the
    judgment nunc pro tunc that did not correct a variance between the rendered
    judgment and the entered judgment were not permissible. After removing these
    impermissible changes, we overrule appellant’s two issues.
    Conclusion
    We modify the judgment nunc pro tunc to conform to the rendered and
    entered judgments. We affirm the judgment as modified.
    Laura Carter Higley
    Justice
    13
    Panel consists of Chief Justice Radack and Justices Higley and Brown.
    14