X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Lora Gillespie and Clyde E. Gillespie divorced in 2002. The one contested issue that went to trial in March 2002 concerned who owned a piece of property located in Hobbs, N.M. Lora’s son, Jerry Hayes, intervened in the case to protect his interest in the property, as he had been living on the property, paying the taxes, mortgage and insurance on it, and maintaining it for several years. In August 2002, the trial court sent letter rulings to Lora and Clyde finding that one-half of the property belonged to the community estate of Lora and Clyde, and one-half belonged to Hayes. Finding the fair market value of the property at the time of divorce to be $260,000, the trial court determined that Clyde was entitled to a judgment of $65,000 from Lora’s estate, as well as a lien on the property. The trial court also ordered Clyde’s interest in the property be sold. At the instruction of the trial court, Clyde’s attorney drafted the divorce decree, which the trial court signed on Sept. 30. The decree stated that the property as a whole was to be sold and Clyde was entitled to $65,000 of the proceeds, as well as Lora’s payment to him as part of the equitable lien. The rest of the judgment accurately reflected the trial court’s letter ruling. Neither party challenged the decree, but Hayes asked for findings of fact and conclusions of law the next week, which the trial court filed. On Nov. 27, the trial court acknowledged that there were errors in the Sept. 30 judgment and that it needed to be fixed. At a subsequent hearing, Clyde argued that the judgment reflected his understanding of the letter ruling and that any error was a judicial error, not a clerical error, and could not be corrected by a judgment nunc pro tunc. Hayes meanwhile argued that the trial court’s plenary power had been extended because of his request for findings of fact and conclusions of law. On its motion, the trial court relied on Electronic Power Design Inc. v. R. A. Hanson, 821 S.W.2d 170 (Tex. App. Houston [14th Dist.] 1991, no writ), and granted a new trial to “correct a judicial error.” Clyde sought a writ of mandamus, but the appeals court denied it. The court found that the Electronic Power case should be overruled to the extent it held that a request for findings of fact and conclusions of law extends the trial court’s plenary power. Clyde then filed a motion to vacate the trial court’s order granting a new trial, which the trial court granted on April 7, 2004. In June 2004, Hayes filed a motion for a judgment nunc pro tunc because divorce decree contained two inaccurate provisions. The parties eventually agreed that the provision ordering the sale of the property was a clerical error. The trial court then confirmed that it did not mean to award Clyde a total of $130,000 instead of $65,000. The trial court made handwritten changes reflecting these adjustments in a judgment nunc pro tunc. Clyde’s estate appeals. Clyde argues that the trial court improperly relieved Lora of her obligation to pay him $65,000 above his one-fourth interest in the property when it signed the Final Decree of Divorce Nunc Pro Tunc. Just as a clerical error cannot impose an obligation to pay where one did not previously exist, a clerical error cannot relieve a person of an obligation to pay where one previously did exist, Clyde argues. HOLDING:Affirmed. As evidenced by the trial court’s statements at the November 2002 and the 2004 hearings, the divorce decree signed on Sept. 30, 2002, clearly did not reflect the trial court’s rendition. The parties even agreed that the rendition did not order that the entire property be sold, only Clyde’s one-fourth interest. As no party disputes this was a clerical error, the error was properly corrected by the judgment nunc pro tunc. As for the correction of a $65,000 payment to Clyde instead of $130,000, the court says it will presume that the trial court’s personal recollections support the finding that the error was a clerical one and that Clyde is entitled only to one-fourth of the property, which is worth $65,000, with an equitable lien against Lora’s interest. OPINION:Keyes, J.; Nuchia, Keyes and Bland, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.