Marriage of Dunn, Matter of

• Decision Date: 10 October 1979
• Docket Number: No. 9050,9050
• Parties: In the Matter of the Marriage of Freida Ann DUNN and Darrell Jay Dunn.
• Court: Texas Court of Appeals

Page 166

589 S.W.2d 166

In the Matter of the Marriage of Freida Ann DUNN and Darrell Jay Dunn.

No. 9050.

Court of Civil Appeals of Texas, Amarillo.

Oct. 10, 1979.

A. W. Salyars, Lubbock, for appellant.

Harry H. Jung, Crosbyton, for appellee.

REYNOLDS, Chief Justice.

The nunc pro tunc judgment appealed from attempts to amend the rendition of a final judgment, a judicial act which is not subject to amendment nunc pro tunc. Reversed and rendered.

On 15 June 1977, the trial court signed a judgment dissolving the marriage of Freida Ann Dunn and Darrell Jay Dunn, fixing the conservatorships of and support for their minor child, and dividing their estate. The judgment contains no specific adjudication of either party's liability for payment of income taxes. Approved as to form by the attorneys for the parties, the judgment became final.

A year later on 19 June 1978, Freida Ann, after being advised by Darrell Jay of her liability for 1977 income taxes, moved for the entry of a nunc pro tunc judgment to provide that Darrell Jay shall be responsible for the payment of all income taxes for the year 1977. As the basis for the relief sought, her motion recites

that it was the original intention of the Court that all income taxes traceable to properties received by Respondent (Darrell Jay Dunn) should be born by Respondent in consideration of his receipt of the property in the division of the community estate. Such provision in the judgment was omitted by the attorneys in preparation of the judgment and such omission was unintentional. Unless such provision is entered in this cause, Petitioner (Freida Ann Dunn) will suffer unreasonable hardship and will have suffered an unfair division of the community property.

Darrell Jay opposed the motion. He pleaded that the original judgment contains the true and accurate rulings and orders of the court.

Hearing the evidence which was brought forward in the appellate record, the trial court found "that the allegations in the motion are true and that Petitioner is entitled to the relief sought therein." The court proceeded on 20 November 1978 to render a nunc pro tunc judgment, which is identical with the original judgment except for the addition of a provision reading:

IT IS DECREED that Respondent for and in consideration of the receipt of the properties herein before described shall bear and be responsible for payment of all income taxes accumulated and payable to Internal Revenue Service for the year 1977 derived from income on said properties.

Darrell Jay has appealed. He contends, in essence, that the nunc pro tunc judgment is void because the correction it attempts to make is judicial in nature and beyond the power of the court to make after the original judgment became final. Freida Ann counters that the correction was clerical in character and may be made at any time.

When the trial court's decision is officially announced, either orally in open court or by written memorandum filed with the clerk, the judgment is rendered. After the judgment has become final, clerical errors in the "entry" of the judgment rendered may be corrected by a nunc pro tunc judgment, but judicial errors in the "rendition" of the judgment may not be so corrected. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970). Whether error in the original judgment is judicial or clerical is a question of law, and the trial court's finding or conclusion as to the nature of the error is not binding on the appellate court. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex.1968).

Thus, the critical inquiry is not what judgment might or ought to have been originally rendered, but what judgment was rendered. Coleman v. Zapp, 105 Tex. 491, 151 S.W....