Holway v. Holway

• Court: Texas Civil Court of Appeals
• Writing for the Court: OSBORN
• Citation: Holway v. Holway, 506 S.W.2d 643 (Tex. Ct. App. 1974)
• Decision Date: 23 January 1974
• Docket Number: No. 6361,6361
• Parties: Richard A. HOLWAY, Appellant, v. Weslynn HOLWAY, Appellee.

Page 643

506 S.W.2d 643

Richard A. HOLWAY, Appellant, v. Weslynn HOLWAY, Appellee.

No. 6361.

Court of Civil Appeals of Texas El Paso.

Jan. 23, 1974.

Robert O'Donnell, Dallas, for appellant.

Legg, Saxe & Baskin, Reagan H. Legg, Midland, for appellee.

OPINION

OSBORN, Justice.

This is an appeal from the entry in 1973 of a nunc pro tunc judgment in a divorce case which was originally decided by the trial Court in 1967. The case is affirmed.

In August, 1967, the Appellee, Weslynn Holway, was granted a divorce from the Appellant, Richard A. Holway. The parties at that time entered into a 'Settlement Agreement.' That Agreement contained several sections which were entitled 'Inventory,' 'Property Settlement,' 'Periodic Support Payments,' 'Professional Fees' and 'Incorporation in Decree.' The section entitled 'Periodic Support Payments' provided that, in addition to all other amounts payable by Richard A. Holway, he agrees to pay to Weslynn Holway monthly the sum of $350.00. It then provided with regard to the parties' two minor children, Richard Vaughn Holway and William Hart Holway, as follows:

'When, as and if Richard Vaughn Holway is in the custody of Richard A. Holway (it being understood that the term 'custody' as used in this Paragraph shall not refer to nor include periods of visitation voluntarily granted by Weslynn Holway when said child visits with Richard A. Holway, if such occurs), or attains the age of 18 years, or dies, such monthly periodic payment or the balance thereof shall be reduced by $175.00. When, as and if William Hart Holway is in the custody of Richard A. Holway (it being understood that the term 'custody' as used in this Paragraph shall not refer to nor include periods of visitation voluntarily granted by Weslynn Holway when said child visits with Richard A. Holway, if such occurs), or attains the age of 18 years, or dies, such monthly periodic payment or the balance thereof shall be reduced by $175.00.'

The last section of the Settlement Agreement provided that, upon entry of a decree of divorce, the Settlement Agreement should be incorporated therein and approved by the Court. On the day after the execution of the Settlement Agreement, a hearing was had in the Court of Domestic Relations and a Judgment of Divorce was entered in the case. That judgment recited that the parties had entered into an agreement '* * * in writing concerning the support of the minor children of the parties and the division of their community estate, * * *,' which the Court found to be '* * * fair, just and equitable to both parties and that the support matters agreed to therein are in the best interests of the parties and of the minor children of the parties:'. Accordingly, the Court approved the agreement and made it a part of the judgment. The judgment in the first full paragraph on page three then ORDERED, ADJUDGED and DECREED that

'Richard A. Holway, shall pay into the registry of this Court and by the Clerk transmitted to plaintiff, Weslynn Holway, the sum of Three Hundred Fifty Dollars ($350.00) per month, the first such payment to be due and payable on September 1, 1967, and a like payment being due and payable on the first day of each succeeding month thereafter, except for any month or part of month in which the parties are not living separate and apart from one another.'

This paragraph of the judgment concluded with the same language used in the Settlement Agreement, as noted earlier in this opinion, which terminates one-half of this payment when each child reaches age 18 or dies. This part of the judgment did not expressly recite that such payments were for child support, and therein lies the reason for the nunc pro tunc judgment and this appeal.

Apparently after receiving such payments for several years, a federal income tax question arose as to whether the monthly payments were paid and received 'as child support payments.' This led to Appellee seeking the nunc pro tunc judgment, which the trial Court entered in July, 1973.

That judgment provided in part, as follows:

'* * * the Court proceeded to consider the pleadings, evidence and argument of counsel, and being of opinion that the judgment rendered by this Court on August 17, 1967, failed, by reason of clerical error, to fully recite the findings of this Court with reference to payment of child support, * * *:

IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED by the

Court that the first full paragraph on page three of the aforesaid judgment on file herein be, and the same is hereby, corrected by inserting the words 'as child support of and for the minor children of the parties' following the words 'this Court' on line three of page three of such judgment, and before the words 'and by the Clerk transmitted to plaintiff, Weslynn Holway' on said line.'

The Appellant's only complaint is that the trial Court erred in finding that a clerical error existed as a predicate to entering a judgment nunc pro tunc. At the hearing, prior to the entry of the judgment in July, 1973, there was offered into evidence the Court docket sheet from the prior hearing in 1967. That sheet bears the following notation of the presiding judge:

'P and atty present. P granted a divorce, awarded custody of the 2 children, & D ordered to pay into ct as c/s 175.00 per mo for each child payable 1st of ea. mo. beginning Sept. 1, 1967. Property Agreement approved.'

At such hearing the...