in the Matter of the Marriage of Starla Snead and Travis Lee Snead and in the Interest of D.L.S. and W.A.S., Minor Children ( 2012 )

NUMBER 13-11-00200-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
IN THE MATTER OF THE MARRIAGE OF
STARLA SNEAD AND TRAVIS LEE SNEAD
AND IN THE INTEREST OF D.L.S. AND W.A.S., MINOR CHILDREN
On appeal from the 75th Judicial District Court
of Liberty County, Texas
____________________________________________________
MEMORANDUM OPINION1
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Appellant Travis Lee Snead appeals the trial court’s “Final Decree of Divorce
Nunc Pro Tunc” and also attempts to appeal from a contempt order enforcing visitation
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
provisions in the original divorce decree.2 The divorce decree and contempt order are
both dated November 30, 2010.
By two issues, Travis argues that: (1) because he was not in contempt if the
decree nunc pro tunc is considered, the trial court committed reversible error when it
signed the written order of contempt against him, moments after it corrected the original
divorce decree by entering the “Final Decree of Divorce Nunc Pro Tunc;” and (2) even
though the trial court stated that the effective date of the decree nunc pro tunc was
November 30, 2010, the decree actually relates back to the date of the original “Final
Decree of Divorce,” dated March 9, 2009. We modify the effective date language in the
“Final Decree of Divorce Nunc Pro Tunc” and affirm that judgment as modified. We
dismiss Travis’s appeal from the contempt action for lack of jurisdiction.
I. BACKGROUND
On November 11, 2000, Travis and Starla Snead were married. Two children
were born of this marriage, D.L.S. and W.A.S. On March 9, 2009, a decree of divorce
was signed. No appeal was taken after its entry.
On August 13, 2009, Travis filed a motion for judgment nunc pro tunc arguing
that the decree of divorce included three scrivener’s errors which we summarize below:
(a) Travis was supposed to get extended weekend visits in that his
visitation time was supposed to end at 8:00 a.m. on Monday;
(b) Starla received a $ 5,000.00 judgment against Travis; there was to be
no personal judgment against Travis but money was to come from his
parents if they ever paid it;
(c) Travis was to receive phone calls from his children each day between
7:00 p.m. and 8:00 p.m., or be able to call them during that time.
2
In order to protect the minor children’s identities, we use aliases to identify the children
mentioned in this appeal. See generally TEX. R. APP. P. 9.8.
2
On August 31, 2010, Starla filed a petition for enforcement of possession order
and final decree of divorce by contempt. In her petition, Starla alleged, among other
things, that Travis failed to timely return the children on multiple occasions. On October
25, 2010, the trial court held a hearing on Starla’s enforcement petition. The court
found that Travis failed to timely return the children on multiple occasions, and held
Travis in contempt. The trial court sentenced Travis to serve five days in jail for each of
the violations, but suspended the sentence, placed Travis on probation for a period of
one year, and awarded Starla $1,250 in attorney’s fees.
On November 30, 2010, the trial court held a hearing on Travis’s motion for
judgment nunc pro tunc. During this hearing, Travis argued that the divorce decree was
not entered in accordance with the verbal agreement which had been recited into the
record during the divorce hearing. The trial court granted Travis’s motion for judgment
nunc pro tunc, but further specified by means of an interlineation on the face of the
judgment, that the effective date of the judgment nunc pro tunc would be November 30,
2010. In other words, the judgment nunc pro tunc would not apply retroactively to the
date of the original decree of divorce. In addition, the trial court signed the order of
contempt notwithstanding the fact that it was based on conduct that was permitted
under the judgment nunc pro tunc.
II. DISCUSSION
A. Appeal from Judgment Nunc Pro Tunc
By his second issue, Travis argues that the divorce decree nunc pro tunc should
be retroactively effective as of March 9, 2009 (date of original decree of divorce), and
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not November 30, 2010 (date of judgment nunc pro tunc).3 The trial court wrote on the
divorce decree nunc pro tunc that, “[t]he portions of the order revised are effective from
& after this date.” As set forth below, we agree with Travis that the effective date of the
divorce decree nunc pro tunc is March 9, 2009.
A party may appeal from an order granting judgment nunc pro tunc, provided he
may only raise complaints that would not apply to the original judgment. See TEX. R.
APP. P. 4.3(b); Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380,
390–91 (Tex. 2008). The proper effective date of a judgment nunc pro tunc is a
question of law, and therefore, we review Travis’s first issue under a de novo standard
of review. See Tex. Parks & Wildlife Dep’t v. Morris, 129 S.W.3d 804, 807 (Tex. App.—
Corpus Christi 2004, no pet.) (providing that a question of law is subject to de novo
review on appeal); Brooks v. Brooks, 864 S.W.2d 645, 647 (Tex. App.—Tyler 1993, no
writ) (holding appeal from divorce decree nunc pro tunc challenging trial court’s
authority to enter certain provisions presented only questions of law).
A judgment nunc pro tunc may be made to correct a clerical error that was made
in entering judgment, but may not be used to correct a judicial error in rendering
judgment. See TEX. R. CIV. P. 316; Daniels v. Comm'n for Lawyer Discipline, 142
S.W.3d 565, 572 (Tex. App.—Texarkana 2004, no pet.). A judgment nunc pro tunc
does not disturb the initial judgment rendered by the trial court; it merely brings the court
records into conformity with it. Daniels, 142 S.W.3d at 572 (citing Lone Star Cement
Corp. v. Fair, 467 S.W.2d 402 (Tex. 1971)). Accordingly, a judgment nunc pro tunc,
3
At the very end of the portion of his brief addressing issue two, and just before his prayer for
relief, Travis states, “Ultimately, the retroactive nature of the Judgment Nunc Pro Tunc invalidates and/or
nullifies the improper and erroneous Order of Contempt issued by the trial court against the Appellant,
Travis Lee Snead, for his violation of what all parties agreed was an invalid and incorrectly transcribed
order.” We address this attempted challenge to the contempt order below in the portion of this
memorandum opinion that addresses appellant’s first issue.
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although signed later, relates back to the date of the original judgment and is effective
as of the earlier date. Id. at 573; see also In re M.V., No. 14-08-00418-CV, 2009 WL
6407539, at *3 (Tex. App.—Houston [14th Dist.] Sep. 1, 2009, no pet.) (mem. op.).
In this case, the trial court entered the divorce decree nunc pro tunc to correct
clerical errors in the transcription of the original divorce decree entered on March 9,
2009. None of the clerical errors corrected pertained to the date of the original divorce
decree. We conclude that Travis is correct that the effective date of the “Final Decree of
Divorce Nunc Pro Tunc” is March 9, 2009. See e.g., Daniels, 142 S.W.3d at 573; In re
M.V., 2009 WL 6407539, at *3. We sustain Travis’s second issue on appeal.
B. Jurisdiction to Consider Contempt Order
By his first issue, Travis seeks to appeal the trial court’s contempt order signed
the same day that the judgment nunc pro tunc was signed. Courts of appeals generally
do not have jurisdiction to review contempt orders by way of ordinary appeal. See In re
M.E.G., 48 S.W.3d 204, 209 (Tex. App.—Corpus Christi 2000, no pet.); In re A.M., 974
S.W.2d 857, 861 (Tex. App.—San Antonio 1998, no pet.); Metzger v. Sebek, 892
S.W.2d 20, 54–55 (Tex. App.—Houston [1st Dist.] 1994, writ denied). This is true even
where the contempt order is appealed, along with a judgment that is appealable. See In
re M.E.G., 48 S.W.3d at 209; In re Gonzalez, 993 S.W.2d 147, 157 (Tex. App.—San
Antonio 1999, no pet.); Sebek, 892 S.W.2d at 54–55. Habeas corpus is the proper form
of relief from contempt orders by which confinement is ordered. See A.M., 974 S.W.2d
at 861. The Supreme Court of Texas has held “[c]ontempt orders that do not involve
confinement cannot be reviewed by writ of habeas corpus, and that the only possible
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relief is a writ of mandamus.” See In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Rosser
v. Squier, 902 S.W.2d 962, 962 (Tex. 1995); In re M.E.G., 48 S.W.3d at 209.
Travis’s first issue on appeal pertains solely to the trial court’s order of contempt.
This court lacks jurisdiction to review a contempt order by way of ordinary appeal, even
if the contempt order is appealed along with an appealable judgment. See M.E.G., 48
S.W.3d at 209. Accordingly, we do not have jurisdiction to consider Travis’s first issue.
III. CONCLUSION
We dismiss appellant’s attempted appeal from the trial court’s contempt order for
lack of jurisdiction. We modify the trial court’s Final Decree of Divorce Nunc Pro Tunc
to delete the line which states, “The portions of the order revised are effective from and
after this date.” See TEX. R. APP. P. 43.2(b). In its place we substitute, “This Final
Decree of Divorce Nunc Pro Tunc is effective as of March 9, 2009.” See id. We affirm
the trial court’s “Final Decree of Divorce Nunc Pro Tunc” as modified.
_________________________________
Gregory T. Perkes
Justice
Delivered and filed the
16th day of August, 2012.
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