Kostura v. Kostura

• Decision Date: 28 May 1971
• Docket Number: No. 17654,17654
• Parties: Hope Elizabeth KOSTURA, Appellant, v. Metro KOSTURA, Appellee.
• Court: Texas Court of Appeals

Page 196

469 S.W.2d 196

Hope Elizabeth KOSTURA, Appellant, v. Metro KOSTURA, Appellee.

No. 17654.

Court of Civil Appeals of Texas Dallas.

May 28, 1971.

Rehearing Denied June 25, 1971.

Phil Burleson, Abney & Burleson, Dallas, for appellant.

Fred R. Brown, Brown, Brown & Bowen, Garland, for appellee.

GUITTARD, Justice.

In this divorce case, plaintiff appeals from an order denying her motion, filed more than a year after judgment, to have the judgment corrected Nunc pro tunc to conform to a letter from the judge to counsel before the judgment was drawn announcing his decision concerning matters at issue. The question is whether proof of differences between the letter and the judgment as signed is sufficient to show a clerical mistake. We hold that such proof is not sufficient.

At the original trial without a jury the judge granted the divorce and awarded custody of the children to plaintiff, but took the property settlement under advisement. Later, on July 15, 1969, he sent counsel for both parties a letter announcing that he had 'reached a decision as to a division of the property.' The letter lists the property allotted to each party, awards custody of children, fixes visitation rights and the amount of child support payments, and directs the attorneys to confer on drawing the judgment. On July 18, the judge signed a formal divorce decree, which was prepared by counsel for defendant, but does not appear to have been approved by counsel for plaintiff. Subsequently defendant filed a 'Motion to Enter a Corrected Judgment Nunc Pro Tunc,' alleging that the judgment should be corrected in certain respects to coincide with the terms of the letter. On September 12, 1969, the judgment granted defendant's motion and signed a 'Final Judgment of Divorce Nunc Pro Tunc,' which repeats all of the original judgment and adds two provisions prayed for in the motion.

Plaintiffs' appeal from the corrected judgment was dismissed because the record was not filed in time. Then, on August 11, 1970 plaintiff filed her present 'Motion to Enter a Corrected Judgment Nunc Pro Tunc,' alleging that the judgment Nunc pro tunc presented by defendant's counsel and signed by the judge on September 12, 1969, also varied from the letter of July 15, 1969, in a number of respects, some of which concern visitation rights and others obligations for debts and income tax payments. Upon hearing, the court overruled the motion with the comment that the letter 'was not meant to be a final judgment; it was meant to be the basis on which a judgment was drawn.'

Plaintiff contends that the judge's letter of July 15, 1969, was the rendition of a judgment settling the rights of the parties, and that the corrected decree of September 12 should have been corrected again Nunc pro tunc to conform to the judgment rendered, as evidenced by the letter. She points out that under decisions such as Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912), and Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953), rendition of a judgment is the judge's announcement of his decision on the matters at issue, whereas entry is the ministerial act of recording that decision, and that when the written judgment as entered fails to conform to the judgment announced because of a clerical mistake, the judgment should be corrected Nunc pro tunc, even though all periods prescribed for revising judicial errors have expired.

Defendant does not dispute the trial court's power to correct its records, but denies that the differences between the letter and the decree were the result of a clerical mistake. First, he says that the letter was not intended as a judgment, and, alternatively, that if it is considered a rendition of judgment, plaintiff has failed to prove that the judge did not withdraw that judgment when he signed the inconsistent draft.

We need not discuss defendant's first contention, since we shall assume that the letter was a rendition of judgment and pass on to his alternative contention. In this respect his position is supported by well-settled law that a judge has complete power to change his judgment judicially on his own motion until it becomes final upon expiration of the periods prescribed by Tex.R.Civ.Proc. 329b, Secs. 5, 6(c). Mercer v. Band, 454 S.W.2d 833 (Tex.Civ.App., Houston 14th 1970, no writ); Whisenant v. Fidelity & Casualty Co. of New York, 354 S.W.2d 683 (Tex.Civ.App., Dallas 1962, writ ref'd n.r.e.). Before signing the draft of judgment he can change the decision previously announced without any formal order setting it aside. Canales v. Salinas, 288 S.W.2d 207 (Tex.Civ.App., San Antonio 1956, writ dism'd); Rogers v. Shell Petroleum Corp., 45 S.W.2d 743 (Tex.Civ.App., Galveston 1932, writ dism'd).

In view of this power to change the judgment, on hearing a motion to correct a judgment which has become final, the trial court must decide whether a change from the judgment as first announced was a judicial modification or a clerical mistake. The existence of a clerical mistake is a question of fact to be determined by the trial court. Mobley v. Rheem Manufacturing Co., 410 S.W.2d 320 (Tex.Civ.App., Houston 1967, writ ref'd n.r.e.). In determining this question, the judge must start with the general presumption in favor of judgments formally entered. The party seeking to correct such a judgment has the burden to show that it does not speak the truth. Conley v. Conley, 229 S.W.2d 926 (Tex.Civ.App., Amarillo 1950, writ dism'd); Mallory v. Mantius, 174 S.W. 692 (Tex.Civ.App., Texarkana 1915, no writ). When the judge acts on such a motion and an appeal is taken, another presumption arises in support of that order. The judge's personal recollection is equivalent to evidence, and the appellate court will presume in support of the order that it is based on the judge's personal recollection. Fort Worth & D.C. Ry . Co. v. Roberts, 98 Tex. 42, 81...