Perez v. Perez

• Court: Texas Court of Appeals
• Writing for the Court: GINA M. PALAFOX, Justice
• Citation: Perez v. Perez, 658 S.W.3d 864 (Tex. App. 2022)
• Decision Date: 13 December 2022
• Docket Number: 08-21-00043-CV
• Parties: Irma PEREZ, Appellant, v. Victor Manuel PEREZ, Jr., Appellee.

658 S.W.3d 864

Irma PEREZ, Appellant,

v.Victor Manuel PEREZ, Jr., Appellee.

No. 08-21-00043-CV

Court of Appeals of Texas, El Paso.

December 13, 2022

Robert L. Edwards, for Appellant.

Kirk Cooper, John P. Mobbs, George Mansouraty, for Appellee.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

GINA M. PALAFOX, Justice

In this case, Appellant Irma Perez¹ (Irma) argues the district court erred in rendering a judgment nunc pro tunc that corrects judicial error, not clerical error, after expiration of its plenary power. Countering, Appellee Victor Manuel Perez Jr., (Victor) presents two arguments. First, he argues that, because Irma had earlier filed a plenary-power-extending motion, the period of the district court's plenary power had not expired, and substantive changes by the court were permitted. In the event the plenary power had expired, he alternatively argues the district court's judgment nunc pro tunc merely corrected clerical error, not judicial error. We conclude the trial court erred in entering the judgment nunc pro tunc and vacate that judgment, leaving intact the trial court's original judgment.

I. BACKGROUND

Irma and Victor were married and had two children during their marriage, S.A.P. and A.B.P.² On April 13, 2017, the parties signed, and the trial court rendered, an agreed final decree of divorce and order for conservatorship and child support. Before expiration of thirty days, however, Irma filed a motion for new trial asserting two grounds. First, based on a mutual mistake, she claimed the parties had not properly addressed and divided a business asset owned during their marriage. She claimed they failed to comply with the terms of an insurance agency agreement, which was needed to accomplish their agreed division of property. Without a new trial, she alleged the mutual mistake placed the agency in danger of franchise revocation under the terms of the agency agreement. Second, Irma alleged a new trial was needed because the orders pertaining to the access and possession of the children failed to consider the children's needs. On June 14, 2017, the trial court rendered an agreed order, signed by counsel for both parties as to form and content, granting a partial motion for new trial "as to the issue of the division of property." Additionally, as to the possession by Victor of the minor child, S.A.P., the order stated: "the parties agree to modify the possession of S.A.P. to the agreement of the child. No Other change to conservatorship is made."

On September 28, 2017, before any other proceedings were held, Irma next filed a motion to modify the parent-child relationship. She identified the agreed final decree of divorce and order for conservatorship and child support of April 2017 as the order subject to her modification request. Irma alleged there had been substantial changes in the circumstances of the parties and their oldest child, S.A.P. She claimed S.A.P.’s present environment with Victor endangered the child's physical health or significantly impaired the child's emotional development. She further asserted the agreed conservatorship order did not include permanent injunctions enjoining parties from discussing litigation with the children. Irma also asked for review of the times of possession and access of the parties’ youngest child. Although Irma initially sought two modifications of the prior order, she later amended her motion, seeking four modifications as follows: (1) for the trial court to include standard injunctions against interference in the parent-child relationship; (2) for the trial court to review the times of possession and access of the youngest child; (3) for duties and responsibilities to be assigned to the individual conservators; and (4) for the trial court to order Victor to pay child support.

Consolidating both the partial new trial and modification, the trial court held a final hearing over two settings, on August 2, 2018, and September 25, 2018, respectively.³ Following the conclusion of the hearing, on December 17, 2018, presiding Judge Laura Strathmann of the 388th District Court sent a letter to the parties, containing a bullet list of rulings addressing "a fair and just division of the community estate." The letter ruling also provided notice that the matter was set for entry of judgment, by submission, on January 25, 2019. No order or judgment in our record, however, aligns with this submission date.

Instead, on February 14, 2019, Irma filed a pleading titled, "Motion to Clarify Letter Ruling," asserting two grounds. First, she contended that clarification was needed on two issues related to the parties’ division of the marital estate. Second, she informed the trial court that its letter ruling had not addressed Irma's request for relief regarding the modification of the parent-child relationship. On March 29, 2019, the trial court received argument from both sides regarding the contested entry of judgment and the motion to clarify the letter ruling. About a year and half later, on October 5, 2020, the trial court sent the parties a notice directing them to submit proposed orders in the cause, on October 19, 2020, at 11:00 a.m. Day's prior, a new attorney had entered an appearance for Irma. On October 19, 2020, Irma complied with the court's directive, submitting a proposed order granting the modification of the final decree of divorce. Victor neither submitted his own proposed order nor filed an objection with the trial court.

Next, the record shows the trial court signed and filed an "Order Granting Modification of Final Decree of Divorce" (the Modification Order), though the date of signing is a bit uncertain. In briefing, Irma claims Judge Strathmann signed the Modification Order on November 5, 2020, as a final disposition, as noted on the court's docket. Victor's brief indicates he reads "the handwritten date on the order to be November 8, but it could be read as November 5 or November 6." In either event, he claims the difference between the three dates is not material to any arguments on appeal. Guided by the case summary prepared by the district clerk, as well as the parties’ claims, we conclude the Modification Order was signed on November 5, 2020.

Within its opening lines, the Modification Order referenced the procedural posture of the case including that the trial court had earlier granted a partial motion for new trial as to the division of property, and issues affecting the parent-child relationship; and, referencing that Irma had requested a modification of a prior, agreed order regarding the parent-child relationship. Thus, in substance, the Modification Order addressed matters connected with the parties’ division of property, conservatorship of the children, child support, and access and possession of the children, among its several provisions.

After January 1, 2021, the newly elected judge of the 388th District Court of El Paso County assumed office as presiding judge. On January 12, 2021, Victor then filed an unsworn pleading titled, "Motion to Modify, Correct, or Reform Judgment, or in the Alternative, Motion for Judgment Nunc Pro Tunc." The motion asserted it was presented within the time allowed by law for post-judgment motions. More specifically, Victor alleged, "the judgment in this case having been rendered on November 9, 2020[,] but notice of the Judgement [sic] was not provided to [Victor] or his counsel until January 11, 2021." Additionally, he asserted the judgment (Modification Order) rendered in November 2020 was inaccurate based on the letter ruling of December 17, 2018.

Irma filed a response in opposition to Victor's motion based on several grounds. First, she asserted the trial court had lost plenary power as a matter of law and, thus, it lacked jurisdiction to modify, correct or reform the challenged order. Second, she pointed out that Victor's unsworn motion failed to meet the requirements of Rule 306a(b) of the Texas Rules of Civil Procedure, such that it failed to extend the court's plenary power over the matters addressed. Third, she argued Victor had waived any objections to the Modification Order, by not filing objections to Irma's proposed order, or by submitting his own proposed order as ordered by the court. Fourth and finally, she urged the court's order granting modification of the parties’ final decree of divorce was consistent with Irma's pleadings, that Victor presented no legal authority, evidence, or testimony in support of his claim of error, and the unfiled letter from the court regarding property division did not itself qualify as a judgment, nor did it address child support, conservatorship, custody, or possession.

The trial court held a non-evidentiary hearing on February 8, 2021. Afterwards, Irma filed additional briefing opposing Victor's motion to modify or correct judgment. On February 12, 2021, the trial court issued a written order vacating and setting aside the Modification Order based on clerical error. Within that ruling, the trial court also ordered Victor "to file a new Order Regarding Modification of Agreed Final Decree of Divorce that incorporates only the 4 property items ruled upon by Judge Strathmann in her December 17, 2018[,] letter ruling." On March 12, 2021, the trial court signed a "Final Decree of Divorce after Motion for New Trial and Judgment Nunc Pro Tunc" (the March 2021 Decree). Among other terms, the decree provided it superseded the Modification Order, signed November 5, 2020, and filed November 9, 2020.

Subsequently, Irma gave timely notice of this appeal challenging: (1) the order of February 12, 2021, granting Victor's motion for judgment nunc pro tunc; and (2) the trial court's signing of the March 2021 Decree.

II. ISSUES ON APPEAL

Irma presents two issues on appeal. First, based on Victor filing an unsworn motion to modify or correct judgment after expiration of the trial court's plenary power, she argues the court lacked jurisdiction to hold a hearing, even a hearing limited to...