Ramirez v. Ramirez

• Court: Texas Court of Appeals
• Writing for the Court: Melissa Goodwin, Justice
• Decision Date: 11 April 2019
• Docket Number: NO. 03-18-00200-CV,03-18-00200-CV
• Citation: Ramirez v. Ramirez, NO. 03-18-00200-CV (Tex. App. Apr 11, 2019)
• Parties: Eva Ramirez, Appellant v. Eddie Ramirez, Jr., Appellee

Eva Ramirez, Appellant v. Eddie Ramirez, Jr., Appellee

NO. 03-18-00200-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

April 11, 2019

FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY

NO. 16-2919-FC4, HONORABLE JOHN MCMASTER, JUDGE PRESIDING

MEMORANDUM OPINION

Eva Ramirez appeals from the trial court's order granting Eddie Ramirez, Jr.'s motion for judgment nunc pro tunc and the trial court's related qualified domestic relations order (QDRO) signed on the same day.¹ Eva argues that the mistakes in the parties' agreed final decree of divorce (the decree), if any, were judicial errors and, thus, could not be corrected by a judgment nunc pro tunc. For the following reasons, we affirm the challenged orders.

Background

Eddie filed a petition for divorce in September 2016. The parties entered into an informal settlement agreement (ISA), resolving all issues related to their children and the division of their assets and debts. Both parties and their attorneys signed the ISA and filed it with the trialcourt in October 2016. Relevant to this appeal, the ISA included the following agreement as to the division of Eddie's 401(k) from State Farm Insurance (the 401(k)):

Wife is awarded . . . a portion of the Husband's 401k from State Farm Insurance that portion being $32,040.50 as of the date of this agreement, September 30, 2016. A QDRO [qualified domestic relations order] will be submitted to the Court for entry to effect the division of the Husband's 401k.

Husband is awarded . . . a portion of the 401k from State Farm, that portion being 100% of the remainder after the award to Wife above, in the approximate amount of $167,606.50.

On December 29, 2016, the Honorable Rick J. Kennon held a prove-up hearing in which he granted the parties' divorce and signed the decree. Eddie's counsel and Eva appeared for the hearing. The parties waived the making of a record of testimony at the hearing, but the "Judge's Docket Entry" from the hearing states:

Agreed Divorce; Petitioner appeared with attorney; Respondent filed Answer and signed Decree; Informal Settlement Agreement filed; Evidence presented; 2 children; Attorney confirmed that decree complied with settlement agreement; Divorce granted and provisions regarding children and property approved; Signed Agreed Final Decree of Divorce; Signed Two QDRO s and Order Withholding (RK).

Both parties signed the decree as to form and substance, and their respective counsel signed as to form only. In the decree, the trial court made the following findings as to the ISA:

The Court finds that the parties have entered into a written agreement as contained in this decree by virtue of having approved this decree as to both form and substance. To the extent permitted by law, the parties stipulate the agreement is enforceable as a contract. The Court approves the agreement of the parties as contained in this Final Decree of Divorce.

The agreements in this Final Decree of Divorce were reached pursuant to the informal settlement process. This Final Decree of Divorce is stipulated to represent a merger of an informal settlement agreement between the parties. To the extent there exist any differences between the informal settlement agreement and this Final Decree of Divorce, this Final Decree of Divorce shall control in all instances.

In conflict with the terms of the ISA, however, the 401(k) was divided between the parties as follows in the decree:

IT IS ORDERED AND DECREED that the husband, is awarded the following as his sole and separate property, and the wife is divested of all right, title, interest, and claim in and to that property: . . . .

A portion of Eddie Ramirez, Jr.'s retirement benefits in State Farm 401(k) arising out of Eddie Ramirez, Jr.'s employment with State Farm as of September 30, 2016, that portion being $32,040.50, together with any interest, dividends, gains, or losses on that amount arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Final Decree of Divorce is signed.

* * *

IT IS ORDERED AND DECREED that the wife, is awarded the following as her sole and separate property, and the husband is divested of all right, title, interest, and claim in and to that property: . . . .

A portion of Eddie Ramirez, Jr.'s retirement benefits in State Farm 401(k) arising out of Eddie Ramirez, Jr.'s employment with State Farm as of September 30, 2016, that portion being fifty percent (50%), together with any interest, dividends, gains, or losses on that amount arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Final Decree of Divorce is signed.

Although the decree states that a QDRO regarding the 401(k) would be signed on the same day as the decree and the trial court signed separate QDROs regarding different assets on the same day, the trial court did not sign a QDRO regarding the 401(k) at that time. Neither party appealed the decree.

After the trial court's plenary power expired, Eddie filed a motion for judgment nunc pro tunc. See Tex. R. Civ. P. 329b(d) (providing that trial court "has plenary power . . . to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed").² He contended that the decree was incorrect because it contained a clerical error as to the division of the 401(k). At a hearing in December 2017, the Honorable John McMaster considered the motion. Eddie's counsel, Eva, and Eva's counsel were present for the hearing. The trial court at the hearing heard testimony from Eva. She testified that she did not believe that the decree contained mistakes and agreed when asked if it should stand as signed by the court in December 2016.

Disagreeing with Eva's position that the decree did not contain mistakes, Eddie's counsel, who had drafted the decree, explained to the court at the hearing how she made the drafting errors in the decree. She represented to the court that she prepared the decree and three QDROs, including one addressing the 401(k) in conformity with the ISA, but that she made an "inadvertent but clearly a clerical error" when she "put a place holder in intending to go back in and change it when it was in Word, and it won't let you do that." She also represented that she forwarded the documents to Eva's counsel and that Eva's counsel returned the other two QDROs and the decree with signatures but not the QDRO regarding the 401(k) prior to the hearing in December 2016.

Shortly after the hearing in December 2017, Judge McMaster advised the parties by letter that he found the error between the ISA and the decree to be "a scrivener's error in drafting (i.e. a clerical error)" and that he was granting Eddie's motion for judgment nunc pro tunc. Consistent with his letter ruling, he signed an order granting Eddie's motion, a nunc pro tunc final decree of divorce (the decree nunc pro tunc), and a QDRO dividing the 401(k) in conformity with the ISA and the decree nunc pro tunc. See Tex. Fam. Code § 9.101 (stating that trial court that rendered final decree of divorce retains continuing, exclusive jurisdiction to render enforceable QDROs). In the order granting the motion for judgment nunc pro tunc, he found that "the error between the settlement agreement and the decree entered on 12/29/16 was a scrivener's error in drafting (i.e. a clerical error)" and "that on December 29, 2016, Judge Kennon accepted the parties' settlement agreement and confirmed that the decree to be entered conformed to that agreement, making a docket entry confirming same."

Consistent with the terms of the ISA, the 401(k) was divided as follows in the decree nunc pro tunc:

IT IS ORDERED AND DECREED that the husband, is awarded the following as his sole and separate property, and the wife is divested of all right, title, interest, and claim in and to that property: . . . .

A portion of Eddie Ramirez, Jr.'s retirement benefits in State Farm 401(k) arising out of Eddie Ramirez, Jr.'s employment with State Farm as of September 30, 2016, that portion being all monies remaining after the $32,040.50, awarded to Wife herein, together with any interest, dividends, gains, or losses on that amount arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Nunc Pro Tunc Final Decree of Divorce is signed.

* * *IT IS ORDERED AND DECREED that the wife, is awarded the following as her sole and separate property, and the husband is divested of all right, title, interest, and claim in and to that property: . . . .

A portion of Eddie Ramirez, Jr.'s retirement benefits in State Farm 401(k) arising out of Eddie Ramirez, Jr.'s employment with State Farm as of September 30, 2016, that amount being $32,040.50, together with any interest, dividends, gains, or losses on that amount arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Nunc Pro Tunc Final Decree of Divorce is signed.

Eva filed a motion for new trial and a request for findings of fact and conclusions of law. The trial court denied her motion for new trial. The trial court also made findings of fact and conclusions of law in support of the decree nunc pro tunc. This appeal followed.

Analysis

Standard of Review and Applicable Law

After a trial court's plenary power has expired, the trial court may not correct a judicial error, but it may correct a clerical error in a judgment by entering a judgment nunc pro tunc. Texas Dep't of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 167 (Tex. 2013); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986); see Tex. R. Civ. P. 316, 329b(d), (f). "A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered, and does not arise from judicial reasoning or determination." Hernandez v. Lopez, 288 S.W.3d 180, 184 (Tex. App.—Houston [1st...