Appeal from the 246th District Court Harris County, Texas
Trial Court Cause No. 2016-43632
consists of Justices Wise, Zimmerer, and Spain.
Charles A. Spain Justice
case involving a divorce with children, appellant Robert
Woodward and appellee Sharon Woodward executed binding,
irrevocable mediated settlement agreements (MSAs) pursuant to
the Family Code and filed them with the trial court.
See Tex. Fam. Code Ann. § 153.0071(d) (Supp.).
The parties were entitled to judgment on the MSAs, and the
trial court granted them an "MSA judgment."
See Tex. Fam. Code Ann. § 153.0071(e) (Supp.).
The trial court later signed a final decree of divorce that
did not conform to the parties' MSA and subsequently
modified the final divorce decree on Sharon's motion for
judgment nunc pro tunc. See Tex. R. Civ. P. 316,
329b(f). Robert brings four related issues, arguing: (1) the
trial court lacked jurisdiction to sign the decree nunc pro
tunc that made substantive changes to the final divorce
decree after the court lost plenary power; (2) the change
granted in the decree nunc pro tunc corrected a judicial
instead of a clerical error; (3) the trial court abused its
discretion and committed reversible error in granting the
decree nunc pro nunc; and (4) the trial court improperly
admitted certain of Sharon's exhibits at the hearing on
the motion for judgment nunc pro tunc. We affirm the trial
court's final decree of divorce nunc pro tunc as
and Robert married in 1999 and have two minor children. In
2016, Sharon filed a petition for divorce from Robert; Robert
filed a counterpetition. Because this suit involves
conservatorship, access to, and support of the children, it
is a SAPCR, i.e., a suit affecting the parent-child
relationship. See Tex. Fam. Code Ann. §
101.032(a). The parties signed a mediated settlement
agreement (MSA) regarding their children on February 16, 2017
and filed it with the trial court. See Tex. Fam.
Code Ann. § 153.0071(d-e). They signed another MSA
regarding their property on March 1, 2017 and filed it with
the trial court. See id. In pertinent part, this MSA
provided that Robert was to receive all property listed on
the attached exhibit A, which expressly included $50, 000 of
Sharon's 401(k) as of March 1, 2017. The exhibit further
stated: "Husband is awarded a lump sum of $50, 000,
regardless of market fluctuation."
1, 2017, the trial court held a prove-up hearing. The record
does not contain a transcript of this hearing. The
judge's docket-sheet notation states: "Uncontested
Divorce. W present w/atty. H's atty present. Amicus
present. MSA judgment granted per In re Stephanie Lee and TFC
153.0071. Divorce granted. Entry 5/10/17."
11, 2017, the trial court signed the agreed final decree of
divorce, which awarded Robert $100, 000 of Sharon's
401(k). The decree referenced the MSAs: "The agreements
in this Final Decree of Divorce were reached in mediation . .
. on February 16, 2017 (for the child portion) and March 1,
2017 (for the property portion). This Final Decree of Divorce
is stipulated to represent a merger of a mediated settlement
agreement between the parties." In addition, the decree
stated: "To the extent there exist any differences
between the mediated settlement agreement and this Final
Decree of Divorce, this Final Decree of Divorce shall control
in all instances." Neither party filed a post-trial
motion to modify, correct, or reform the judgment. The trial
court lost plenary power as of June 11, 2017. See
Tex. R. Civ. P. 329b(d).
subsequently presented Sharon with a Qualified Domestic
Relations Order (QDRO) that awarded Robert $100, 000 of
Sharon's 401(k). Sharon then filed a motion for judgment
nunc pro tunc, arguing that the final divorce decree
contained a clerical error causing the distribution of the
marital estate to be erroneously divided in a manner not in
compliance with the MSA and asking the trial court to correct
the clerical error. See Tex. R. Civ. P. 316,
329b(f). Robert filed a response in which he argued that the
trial court could not change the decree because it would be
correcting a judicial error.
hearing, the trial court indicated to the parties that it
intended to grant Sharon's motion. Robert offered and the
trial court admitted his responsive brief. Sharon also
offered various documents, to some of which Robert stipulated
and to some of which he objected. The trial court admitted
all of Sharon's exhibits.
December 15, 2017, the trial court signed a final decree of
divorce nunc pro tunc, which awarded Robert $50, 000 of
Sharon's 401(k) as his property. Robert did not file a
motion for reconsideration or a request for findings of fact
and conclusions of law. Robert timely appealed. See
Tex. R. Civ. P. 329b(h).
Family Code has a provision governing MSAs in SAPCRs. Tex.
Fam. Code Ann. § 153.0071(d-e). An MSA meeting the Family
Code's requirements is irrevocable and binding on the
parties. Tex. Fam. Code Ann. § 153.0071(d) (must include
prominent display of irrevocability and be signed by parties
and any party attorney who is present); In re Lee,
411 S.W.3d 445, 451-52, 458, 461 (Tex. 2013) (orig.
proceeding). A party is "entitled to
judgment" on an MSA that meets the statutory
requirements "notwithstanding Rule 11, Texas Rules of
Civil Procedure, or another rule of law." Tex. Fam. Code
Ann. § 153.0071(e); In re Lee, 411 S.W.3d at
447, 452-53, 461. As long as the trial court is within its