KOSTURA v. KOSTURA

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Docket Number

No. 17654.

Attorney(S)

Phil Burleson, Abney Burleson, Dallas, for appellant. Fred R. Brown, Brown, Brown Bowen, Garland, for appellee.

Judges

GUITTARD, Justice.

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Smart Summary

Factual and Procedural Background

Plaintiff (Hope Elizabeth Kostura) appealed an order denying her motion, filed more than a year after judgment, to correct the divorce judgment nunc pro tunc so that it would conform to a July 15, 1969 letter the trial judge had sent counsel announcing his decision. At the original nonjury trial the judge granted the divorce and awarded custody to plaintiff but took the property division under advisement. On July 15 the judge sent a letter to counsel listing property allocations, custody and visitation terms, child support amounts, and directing counsel to prepare the judgment. On July 18 a formal decree prepared by defendant's counsel was signed by the judge. Defendant thereafter moved to enter a corrected judgment nunc pro tunc; on September 12, 1969 the court signed a "Final Judgment of Divorce Nunc Pro Tunc" which repeated the original decree and added two provisions. Plaintiff's appeal from that corrected judgment was dismissed for late filing of the record. On August 11, 1970 plaintiff filed a further motion to correct the September 12, 1969 nunc pro tunc judgment, alleging additional variances from the July 15 letter. After a hearing the trial court overruled plaintiff's motion, commenting that the July 15 letter was "the basis on which a judgment was drawn" and not meant to be the final judgment. This appeal followed.

Legal Issues Presented

Whether proof of variances between a judge's written announcement (the July 15, 1969 letter) and the later formal judgment as entered is, by itself, sufficient to establish a clerical mistake warranting correction nunc pro tunc.
Whether, assuming the letter was a rendition of judgment, the judge may have withdrawn or judicially modified that rendition before signing the formal decree, and thus whether the variances reflect judicial modification rather than clerical error.

Arguments of the Parties

Appellant's Arguments

The July 15, 1969 letter constituted the rendition of judgment and established the court's decision as to property division, custody, visitation and support.
Under authorities such as Coleman v. Zapp and Knox v. Long, when the entered judgment varies from the rendition due to clerical mistake it should be corrected nunc pro tunc even after revision periods have expired; therefore the September 12, 1969 nunc pro tunc decree should have been corrected to conform to the letter.

Appellee's Arguments

Defendant conceded the court's power to correct its records but denied that the variances resulted from clerical mistakes.
First, the July 15 letter was not intended to be a final judgment; alternatively, if it was a rendition, plaintiff failed to prove the judge did not judicially withdraw or change that rendition before signing the inconsistent draft decree.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912)	Rendition is the judge's announcement of his decision; entry is the ministerial recording; clerical mistakes in entry may be corrected nunc pro tunc.	Relied on by appellant to argue the July 15 letter was the rendition; court noted the case supports the general principle but requires a fact finding of clerical mistake to permit nunc pro tunc correction.
Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953)	Same principle as Coleman: distinction between rendition and entry and availability of nunc pro tunc correction for clerical mistakes.	Cited by appellant; court observed Knox supports the principle but emphasized that those cases involved trial-court fact findings that the variance was clerical.
Mercer v. Band, 454 S.W.2d 833 (Tex.Civ.App., Houston 14th 1970, no writ)	A judge has complete power to change his judgment judicially on his own motion until it becomes final under Tex.R.Civ.Proc. 329b.	Used to support defendant's alternative contention; court assumed the letter was a rendition but applied this principle to consider that the judge could have changed his decision before finality.
Whisenant v. Fidelity Casualty Co. of New York, 354 S.W.2d 683 (Tex.Civ.App., Dallas 1962, writ ref'd n.r.e.)	Supports the proposition that a judge may change his judgment judicially before it becomes final.	Quoted by the court as authority for the judge's power to modify announced decisions prior to finality.
Canales v. Salinas, 288 S.W.2d 207 (Tex.Civ.App., San Antonio 1956, writ dism'd)	Before signing a draft of judgment, a judge may change a previously announced decision without a formal order setting it aside.	Applied to show the judge could alter an earlier rendition when presented with the draft decree.
Rogers v. Shell Petroleum Corp., 45 S.W.2d 743 (Tex.Civ.App., Galveston 1932, writ dism'd)	Same proposition: judge may change announced decision prior to signing draft.	Used to support the notion that signing the draft may reflect the judge's final intent rather than the earlier announcement.
Mobley v. Rheem Manufacturing Co., 410 S.W.2d 320 (Tex.Civ.App., Houston 1967, writ ref'd n.r.e.)	Existence of a clerical mistake is a question of fact for the trial court to determine.	Court relied on this principle to hold that proof of variance alone is insufficient; a fact finding that the variance was clerical is required.
Conley v. Conley, 229 S.W.2d 926 (Tex.Civ.App., Amarillo 1950, writ dism'd)	Presumption in favor of judgments formally entered; the party seeking correction bears the burden to show the judgment does not speak the truth.	Applied to place the burden on plaintiff to prove the entered judgment was a clerical misrecording of the rendered judgment.
Mallory v. Mantius, 174 S.W. 692 (Tex.Civ.App., Texarkana 1915, no writ)	Same presumption and burden principles regarding correction of entered judgments.	Used to reinforce the rule that entered judgments are presumed correct absent proof to the contrary.
Fort Worth D.C. Ry. Co. v. Roberts, 98 Tex. 42, 81 S.W. 25 (1904)	Judge's personal recollection is equivalent to evidence; appellate courts will presume orders are based on that recollection.	Invoked to support the presumption that the trial court's denial of plaintiff's motion was based on the judge's recollection or factual finding that variances were not clerical.
S.W. Slayden Co. v. Palmo, 90 S.W. 908 (Tex.Civ.App., Austin 1905, affirmed 100 Tex. 13, 92 S.W. 796 (1906))	Same principle regarding the evidentiary weight of a judge's recollection and presumption in support of written orders.	Applied to justify presuming the trial court made factual findings supporting its order denying correction.
Creswell v. Pruitt, 239 S.W.2d 165 (Tex.Civ.App., Eastland 1951, no writ)	Illustrates presumption in support of written orders where a judge's announced ruling was later set aside in writing.	Used as an example that appellate courts will presume a trial court found an announced ruling had been set aside when the written order reflects that result.
Truelove v. Truelove, 266 S.W.2d 491 (Tex.Civ.App., Amarillo 1953, writ ref'd)	Holds a judgment may be corrected nunc pro tunc when the trial court finds the variance was clerical.	Cited by the court to show such cases are consistent with its holding because they involved trial-court fact findings of clerical mistake.
Zamora v. Salinas, 422 S.W.2d 249 (Tex.Civ.App., Corpus Christi 1967, writ ref'd n.r.e.)	Same principle: nunc pro tunc correction permissible where trial court finds variances are clerical mistakes.	Referenced to demonstrate that prior corrections were grounded on trial-court factual findings, not on variance alone.

Court's Reasoning and Analysis

The court framed the primary question as whether proof of a variance between the judge's July 15 letter (assumed for purposes of decision to be a rendition of judgment) and the later formal decree, without more, suffices to show a clerical mistake. The court applied settled principles: a judge may judicially change an announced decision until it becomes final; existence of a clerical mistake is a factual question for the trial court; judgments formally entered are presumptively correct; and the party seeking correction bears the burden to show the record does not speak the truth. The court explained that announcements (oral or written) are often tentative and that rules requiring reduction to writing and preparation of form by counsel contemplate differences between announcement and final draft. When a judge signs a draft he is presumed to have determined that draft reflects his final decision. Therefore, variance alone does not require nunc pro tunc correction; there must be a fact finding—based on evidence or the judge's personal recollection—that the variance was clerical rather than a judicial modification. The court found no such fact finding in the record and relied on the trial judge's comment that the letter was merely the basis for drawing the judgment to presume the trial court found the variances were judicial modifications, not clerical mistakes.

Holding and Implications

Affirmed.

Direct effect: The trial court's order denying plaintiff's August 11, 1970 motion to correct the September 12, 1969 nunc pro tunc judgment was affirmed; the variances plaintiff sought to correct were treated as judicial modifications rather than clerical mistakes on this record. Broader implication: The court held that proof of variance alone is insufficient to obtain nunc pro tunc correction; a trial-court fact finding that the variance was a clerical mistake is required. No change in controlling law was announced beyond the application of these established principles to the record before the court.

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Hope Elizabeth KOSTURA, Appellant, v. Metro KOSTURA, 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 S.W. 25 (1904); S.W. Slayden Co. v. Palmo, 90 S.W. 908 (Tex.Civ.App., Austin 1905, affirmed 100 Tex. 13, 92 S.W. 796 (1906)). The decisions last cited apply this presumption in cases where the trial court granted the motion, but by the same reasoning an order denying a motion to correct a judgment must be presumed to be based on a finding, supported by the judge's personal recollection, that any variance in a judgment as entered from that originally announced was not the result of a clerical mistake, but was rather the result of a judicial determination that such change was proper in the interest of justice. Thus in Creswell v. Pruitt, 239 S.W.2d 165 (Tex.Civ.App., Eastland 1951, no writ), the trial judge announced in open court that a plea of privilege was overruled, but later signed an order sustaining it, and the appellate court presumed in support of the written order that the announced ruling was set aside.

In our opinion, the presumption in favor of judgments formally entered is necessary in the interest of maintaining certainty in judicial records. A judge's announcement of his decision, whether oral or in writing, is often necessarily tentative, particularly in a complicated case like the present. He may not intend his pronouncement to embody all the details of the final decree, and he need not cover all such details, since he knows he will have an opportunity to review the draft of judgment before signing it. Tex.R.Civ.Proc. 306a directs that the judgment be reduced to writing and signed by the judge, and Rule 305 requires counsel for the prevailing party to prepare the form of judgment to be entered. These rules contemplate that the judgment to be entered will be something other than a word-for-word recording of the judgment as announced. Reduction to writing makes for precision and thoroughness. When the written draft is presented for signature, the judge has an opportunity to examine it and determine whether it disposes of all the matters at issue and is in all respects the decision he intends to make. He has also a duty to examine it for the purpose of determining whether it accurately states the judgment which he has rendered. If he finds that the draft varies from his judgment, he must decide whether to make the draft conform to his judgment or change his judgment in accordance with the draft. If he signs the draft, the judgment entered is presumptively the judgment as he finally intends it, and it ought not to be subject to change on a bare showing that it varies in some particular from the judgment as first announced.

We hold that proof of a variance between the judgment rendered and that entered is not enough to require correction of a judgment Nunc pro tunc. There must also be a fact finding, based on evidence or on the personal recollection of the judge, that the variance was a clerical mistake rather than a judicial modification.

Plaintiff argues that since defendant moved for a correction of the original decree on the ground that it varied from the letter and the court granted the motion and made the corrections requested by defendant, the letter has been established as the actual judgment of the court and the variances in the formal decree have been established to be the result of a clerical mistake. Plaintiff insists that she is entitled to rely on the letter to the same extent as defendant. Though this argument may seem plausible, it cannot prevail in view of the rule that fact findings are presumed in support of the trial court's order, not against it. In support of the order of September 12, 1969, we must presume that the trial court found that a clerical mistake had been made in the respects in which the original decree was corrected. Likewise, we must presume in support of the subsequent order denying plaintiff's motion to correct that the trial court found that no clerical mistake was made in the respects alleged by plaintiff.

Plaintiff has cited a number of cases holding that a judgment may be corrected Nunc pro tunc on showing a variance between the judgment rendered and the final judgment record. These decisions are not inconsistent with our present holding because in each of those cases the trial court found as a fact that judgment was entered because of a clerical mistake, and made an order correcting the record as the basis of such a finding. Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912) (affirming Coleman v. Zapp, Tex.Civ.App., 135 S.W. 730, Austin 1911); Truelove v. Truelove, 266 S.W.2d 491 (Tex.Civ.App., Amarillo 1953, writ ref'd); Zamora v. Salinas, 422 S.W.2d 249 (Tex.Civ.App., Corpus Christi 1967, writ ref'd n.r.e.).

The record here contains no fact finding that the variances which plaintiff seeks to correct were the result of a clerical mistake. The trial court's comment that the letter was intended only as "the basis on which a judgment was drawn' indicates that he did not find any clerical mistake. On this record we must presume in support of the trial court's order that the variances were not clerical mistakes but were judicial modifications of the judgment rendered.

Affirmed.