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  • Beth M. Johnson

Post-Divorce Property Issues

Once a divorce is final, the trial court lacks any authority to modify that final decree’s property division. Tex. Fam. Code § 9.007(a). However, the court retains the power to clarify an order that is not specific enough to be enforceable by contempt. Tex. Fam. Code § 9.008. Thus, in a clarifying order, like judgments nunc pro tunc, the court cannot clarify (or correct) judicial errors—only clerical ones. A clerical error is a discrepancy between entry of a judgment in the official record and the judgment as it was actually rendered. Univeral Underwriters Ins. v. Ferguson, 471 S.W.2d 28, 29–30 (Tex. 1971). A judicial error occurs when the court considers an issue and makes an erroneous decision. See Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58–59 (Tex. 1970).


The verbs associated with the actions of the court are important. “Rendition” occurs when the court makes a final ruling, whether it be oral or through a writing. See Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976). A statement of an intent to render a judgment in the future does not constitute a present rendition. Id. An “entry” of judgment is a ministerial act that occurs when the judgment is recorded in the minutes of the trial court. Araujo v. Araujo, 493 S.W.3d 232, 235 (Tex. App.—San Antonio 2016, no pet.). Appellate and other post-judgment timelines begin when a final judgment is rendered. However, to be final, the order must clearly and unequivocally dispose of all claims between the parties and satisfy the applicable requirements of the Texas Family Code. See In re R.R.K., 590 S.W.3d 535, 543 (Tex. 2019) (addressing a SAPCR memorandum ruling).


In a post-judgment enforcement proceeding, the court cannot modify a property division even if doing so seems like the equitable thing to do. Gonzalez v. Pounds, No. 07-21-00088-CV, 2022 WL 348403, at *5 (Tex. App.—Amarillo 2022, no pet.) (mem. op.). In Gonzalez, the husband’s failure to comply with provisions regarding tax preparation led to the wife being unable to satisfy a debt to the husband and to the parties incurring fees associated with filing their tax return late. Id. at *3. Although the final decree specified that the taxes, including any penalty and interest, would be split equally between the parties, in the enforcement proceeding, the trial court assigned all of the penalties to the husband. Id. The appellate court reversed because the trial court lacked power to change the underlying division. Id. at *5. However, adding more specific terms detailing exactly how and when the husband was to pay his portion of the taxes did not modify the division—the added terms merely clarified the existing decree. Id. at *6.


If a final judgment fails to comply with the parties’ agreement, even if it is an MSA, that error cannot be corrected by a judgment nunc pro tunc after the trial court has lost plenary power. See In re Marriage of Russell, 556 S.W.3d 451, 460–61 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The error in failing to render judgment consistent with the agreement would constitute a judicial error, not a clerical one. Id. at 458; see also Okafor v. Okafor, No. 14-21-00483-CV, 2023 WL 163814 (Tex. App.—Houston [14th Dist.] 2023, no pet. h.) (mem. op.).


In Okafor, both parties sought judgments nunc pro tunc years after the divorce was rendered. 2023 WL 163814, at *3–*4. After the court signed a judgment nunc pro tunc, the wife appealed alleging the judgment nunc pro tunc was void. Id. at *4. When the parties reached their oral agreement in open court to divide their residence 50/50, the trial judge responded that he could not saw the property in half, so he would order that the house be sold and the proceeds be divided 50/50. Id. *2. The original decree included provision regarding the sale of the residence, but the judgment nunc pro tunc removed those additional terms. Id. at *6–*7. The appellate court held that it was error to remove those terms in a judgment nunc pro tunc because doing so would “correct” a judicial error, not a clerical one. Id. at *7.


A judgment nunc pro tunc cannot be used to correct legal errors in a judgment. See Cisneros v. Puentes, __ S.W.3d __, No. 08-21-00048-CV, 2022 WL 19795760 (Tex. App.—El Paso 2022, no pet. h.). In Cisneros, a Domestic Relations Order (“DRO”) signed at the same time as the divorce differed from the parties’ divorce decree regarding the division of the husband’s military retirement. Id. at *1. After the court’s plenary power expired, the court signed an “Amended Final Decree of Divorce” that modified the decree’s division of the husband’s military retirement. Id. Over a decade later, the wife sought enforcement of original decree, ignoring in her pleading the DRO and the amended decree. Id. After a hearing the trial court rendered an order “clarifying” the amended decree by changing the formula for calculating the wife’s portion of the husband’s retirement. Id. at *2. After discussing the differences between clerical and judicial errors, the appellate court held that both the amended decree and the clarifying order were void for modifying the original property division after the trial court lost its plenary power. Id. at *4.


If the original divorce decree did not address certain property owned by the parties at the time of divorce, they become cotenants of the property and can end their cotenancy relationship by partitioning that property. See Kirkwood v. Domnau, 16 S.W. 428 (Tex. 1891). Property can be partitioned by agreement or by judicial means. In Texas, two judicial methods can be used to partition property: a partition suit brought under the Family Code or a partition suit brought under the Property Code. See S.C. v. M.B., 650 S.W.3d 438, 452 (Tex. 2022) (Tex. Fam. Code ch. 9 not exclusive remedy to divide property undivided in divorce). The two claims are often pleaded in the alternative. See, e.g., Phillips v. Phillips, 951 S.W.2d 955, 957 (Tex. App.—Waco 1997, no pet.).


Under the Family Code, the petitioner has the burden to establish that the property in question was community property, which can be accomplished by establishing that the property was in existence at the time the marriage was dissolved. See Land v. Land, 561 S.W.3d 624, 634 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). Once the petitioner has established that the property existed at the time the marriage was dissolved, the community-property presumption applies. See Tex. Fam. Code § 3.003(a); Burgess v. Easley, 893 S.W.2d 87, 90 (Tex. App.—Dallas 1994, no writ).


Additionally, the petitioner must establish that the court did not divide or consider certain items of community property when the court rendered the final dissolution decree. Brown v. Brown, 236 S.W.3d 343, 348–49 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Otherwise, the claim would be barred by res judicata. Property that has been mischaracterized by the court and divided in the final decree has been “divided” and cannot be the subject of a post-divorce partition suit. See, e.g., Pearson v. Fillingim, 332 S.W.3d 361, 363–64 (Tex. 2011).



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