IN THE MATTER OF THE MARRIAGE OF LANCE BOWE AND SAMANTHA PERRY
Appeal from the 309th District Court Harris County, Texas
Trial Court Cause Nos. 2005-12087 & 2005-12087A
consists of Justices Boyce, Donovan, and Jewell.
William J. Boyce Justice.
appeals six orders that altered a prior March 3, 2014 order
dismissing all claims filed in a suit affecting the
March 2014 order granted relief in response to a pleading
Mother styled as a motion to dismiss or, in the alternative,
plea to the jurisdiction. In six orders signed in 2016, the
trial court altered the March 2014 order by (1) removing all
factual findings discussing the grounds for dismissal; and
(2) changing the March 2014 order to state that only
Mother's "Motion to Dismiss is granted."
timely appealed the trial court's six 2016 orders. Father
asserts that the changes effected by the trial court's
2016 orders go beyond the authorized reach of a nunc pro tunc
judgment under Texas Rules of Civil Procedure 316 and 329b(f)
because the 2016 orders impermissibly remedied judicial
errors rather than mere clerical errors.
2016 orders exceeded the bounds of a permissible nunc pro
tunc judgment because they made substantive and material
changes to the March 2014 order. We therefore vacate the
trial court's six 2016 orders and reinstate the March 3,
2014 order dismissing all claims in the suit.
Suit Affecting the Parent-Child Relationship and the
March 2014 Order
filed suit seeking a divorce from Father in 2005. Her divorce
petition requested that the parties be appointed joint
managing conservators for their two children.
appellate record does not contain a final divorce decree or
otherwise show when the petition for divorce was resolved;
the record similarly does not show what custody arrangements
were established following the parties' divorce. The
record shows only that the parties continued to litigate
modifications of custody arrangements.
the 2005 divorce filing, the next entry in the record is the
parties' January 6, 2012 mediated settlement agreement.
The settlement agreement indicates that it modified the trial
court's April 28, 2009 court order establishing
conservatorship, possession, and access guidelines for the
parties and their children. The trial court's April 28,
2009 order is not included in the record. The settlement
agreement provided that Father would be liable for the legal
fees attributable to the children's amicus attorney as
well as Mother's attorney, Steven Engelhardt.
filed in January 2012 a second amended emergency motion to
modify the parent-child relationship, an application for a
temporary restraining order, and a request for temporary
orders and injunctions, citing events that transpired after
the parties executed the settlement agreement. Mother's
second amended emergency motion to modify sought to amend the
trial court's July 22, 2009 custody order, which is not
included in the record.
trial court signed an agreed order to modify the parties'
child custody arrangements on February 9, 2012. The agreed
order incorporated by reference the parties' January 2012
settlement agreement and granted in part the agreement's
requested modifications. The agreed order included a Mother
Hubbard clause stating that "all relief requested in
this case and not expressly granted is denied." The
agreed order did not mention or otherwise purport to resolve
the issues raised in Mother's second amended emergency
motion to modify.
thereafter, the trial court severed Mother's second
amended emergency motion to modify into a separate action,
and signed an emergency temporary order to modify the
parent-child relationship. The trial court's emergency
temporary order granted in part the relief requested in
Mother's second amended emergency motion to modify and
limited Father's interaction with the children to periods
of supervised access.
parties continued to litigate custody arrangements in the
severed action. Following the emergency temporary order,
Father filed an amended counter-petition for modification of
conservatorship and a motion for sanctions against Mother.
Father filed a second amended counter-petition in December
present dispute focuses on events that transpired after
Mother filed a notice of nonsuit in the severed action in
January 2014. In conjunction with the notice of nonsuit,
Mother filed a motion to dismiss and alternative plea to the
jurisdiction seeking the dismissal of Father's
counterclaims in the severed action. Contending that
"[t]he court is without jurisdiction to entertain"
Father's claims, Mother's motion asserted that
"[t]here is no issue surviving the February 9, 2012
entry that can now be tried." The trial court held a
hearing; it orally denied Mother's motion to dismiss and
alternative plea to the jurisdiction.
L. Fritsch, the children's amicus attorney, filed a
motion in the severed action on January 27, 2014, seeking a
partial dismissal of Father's conservatorship claims.
Fritsch asserted that Father failed to file an affidavit as
necessary to modify a conservatorship order less than one