Nunc Pro Tunc Cannot Delete Attorney’s Fees Award | In the Interest of S.M.M. (2026)

In the Interest of S.M.M. and R.M.M., Minor Children, 05-24-01212-CV, May 12, 2026.

On appeal from 417th Judicial District Court, Collin County, Texas

Synopsis

After plenary power expired, the trial court could not use Rule 316 to delete a written attorney’s-fee award and replace it with a provision requiring each party to bear his or her own fees. The Dallas Court of Appeals held that this was not a clerical correction but a judicial rewrite of the judgment actually rendered, making the nunc pro tunc judgment void.

Relevance to Family Law

This opinion matters immediately in modification, SAPCR, divorce, enforcement, and post-decree litigation because attorney’s-fee provisions are frequently revisited after the fact under the label of “clarification.” In the Interest of S.M.M. reinforces a hard boundary Texas family litigators ignore at their peril: once plenary power expires, the court may correct the record of what it rendered, but it may not change the substance of the relief awarded, including fee-shifting, reimbursement obligations, or take-nothing language. In practical family-law terms, if a written order awards fees, reimbursement, support-related sums, or costs, a later claim that the court “didn’t really mean it” will not support nunc pro tunc relief absent a true clerical mismatch between rendition and entry.

Case Summary

Fact Summary

The underlying dispute arose out of a child-support modification proceeding. Father moved to modify a 2008 child support agreement order, and Mother filed a counter-petition that included a request for attorney’s fees. At the hearing, Mother supported her fee request with an affidavit from counsel stating that $22,953.40 in fees were reasonable and necessary.

The trial judge did not orally award attorney’s fees at the hearing. Instead, the judge expressly stated that she was taking attorney’s fees “under advisement” because she did not have an itemized bill before her. A written order signed on January 26, 2022 resolved the modification proceeding and awarded Mother the requested $22,953.40 in attorney’s fees.

No party filed a motion for new trial, and no one appealed. The trial court’s plenary power therefore expired on February 25, 2022. More than a year later, Mother filed a motion for judgment nunc pro tunc seeking clarifications that would make the order more enforceable, including corrections to her address, payment direction for fees, and payment deadlines. Father then filed his own nunc pro tunc motion, asking the court to strike the fee award altogether as a supposed “clerical mistake.”

The trial court granted Father’s request in relevant part. Its September 16, 2024 judgment nunc pro tunc deleted the attorney’s-fees award from the original order and replaced it with language providing that Mother would be responsible for her own attorney’s fees. Mother appealed.

Issues Decided

The court decided, in substance, the following issues:

• Whether the trial court rendered judgment on attorney’s fees when it signed the January 26, 2022 written order, even though it had not orally rendered fees at the hearing.
• Whether deleting the prior written attorney’s-fees award and replacing it with a provision that each party bear his or her own fees was a clerical correction permitted by Texas Rule of Civil Procedure 316.
• Whether the post-plenary nunc pro tunc judgment was void because it attempted to correct a judicial, rather than clerical, error.

Rules Applied

The court relied on the familiar distinction between clerical and judicial error governing nunc pro tunc practice.

• Texas Rule of Civil Procedure 316 permits correction of clerical mistakes in the record of a judgment after notice, but it does not authorize correction of judicial mistakes.
• Texas Rule of Civil Procedure 329b limits the trial court’s plenary power to modify, correct, or reform its judgment.
• Under Escobar v. Escobar, 711 S.W.2d 230 (Tex. 1986), courts must look to the judgment actually rendered, not the judgment that should or might have been rendered.
• Under Andrews v. Koch, 702 S.W.2d 584 (Tex. 1986), if the signed judgment inaccurately reflects the true decision of the court, the error may be clerical; if the change alters the decision itself, it is judicial.
• Under Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56 (Tex. 1970), rendition occurs when the court officially announces its decision orally in open court or by written memorandum filed with the clerk; words showing only an intent to decide later do not constitute present rendition.
• Under Dikeman v. Snell, 490 S.W.2d 183 (Tex. 1973), provisions included in the judgment, even if inserted by mistake, become part of the rendered judgment and cannot later be removed by nunc pro tunc if the change is substantive.
• A nunc pro tunc judgment attempting to correct judicial error after plenary power expires is void.

Application

The appellate court began where these cases always begin: what judgment was actually rendered? The hearing transcript did not help Father. The judge did not orally award fees and did not announce that she was denying them. To the contrary, she twice stated she was taking attorney’s fees under advisement. Under Leal and Comet Aluminum, that language reflected a future decision, not a present rendition.

That mattered because once there was no oral rendition on fees, the written January 26, 2022 order became the first operative rendition on that issue. In other words, the judicial act of rendering the fee award occurred when the judge signed the written order. The written order did not merely memorialize a prior oral ruling; it was the ruling.

From there, the remainder of the analysis was straightforward. Father characterized the fee award as a clerical mistake because, in his view, there was no evidence the court had really intended to award fees. But that framing asked the appellate court to compare the signed judgment to what Father believed the court meant to do, not to what the court actually rendered. Texas nunc pro tunc law does not permit that move. The question is not whether the original judgment was wise, sufficiently supported, or even correct. The question is whether the nunc pro tunc order merely corrected the record of that judgment.

Here, the nunc pro tunc order did not correct a recording error. It did the opposite: it erased an express fee award of $22,953.40 and replaced it with a materially different adjudication that Mother would recover no fees at all. That is a substantive change to the parties’ rights and obligations. It changed the judgment rendered, not the ministerial entry of that judgment. Under Escobar, Andrews, and Dikeman, that is the paradigm of judicial error.

The court also rejected the notion that the trial judge’s personal recollection could save the nunc pro tunc order in these circumstances. Even assuming a judge’s recollection can support a finding of clerical error in some cases, it cannot be used to rewrite an unambiguous written rendition into something else after plenary power has lapsed. A court cannot “make the record what it is not.”

Holding

The Dallas Court of Appeals held that the trial court rendered judgment on attorney’s fees when it signed the January 26, 2022 written order. Because the judge had only taken attorney’s fees under advisement at the hearing and had not orally rendered a ruling on that issue, the written order was itself the rendition.

The court further held that deleting the original $22,953.40 attorney’s-fees award and replacing it with language requiring Mother to bear her own fees was a judicial change, not a clerical correction. The modification altered the substance of the judgment actually rendered and therefore fell outside the narrow authority granted by Rule 316.

Finally, because the trial court’s plenary power had already expired, the attempted judicial revision through nunc pro tunc was void. The court reversed and vacated the nunc pro tunc judgment, declared it void, and restored the original judgment.

Practical Application

For family-law litigators, the case is a reminder that post-judgment cleanup has jurisdictional limits. If your final decree, modification order, enforcement order, or SAPCR order contains an attorney’s-fee award, reimbursement provision, support amount, property division term, or injunctive language that a party later claims was included “by mistake,” you must first ask whether the alleged mistake lies in the court’s adjudication or merely in the transcription of that adjudication. If the signed order is the first actual rendition on the issue, any substantive change will almost always be judicial.

This is especially consequential in family cases because lawyers often attempt to use motions to clarify, nunc pro tunc motions, or agreed post-judgment cleanup orders to revise fee awards, QDRO-related obligations, reimbursement dates, or decree language after the plenary deadline has passed. S.M.M. confirms that practitioners should not confuse enforceability fixes with merits changes. Correcting a payee name, a legal description, a transposed number, or a scrivener’s mismatch may be possible. Eliminating a fee award, converting an award into a take-nothing disposition, or reallocating liability between parties is not.

The opinion also has trial-level drafting implications. If the court takes fees under advisement and later signs a written order awarding them, that signed order will likely be treated as the actual rendition unless there is some earlier written memorandum or oral ruling constituting rendition. Accordingly, any challenge to the legal or factual basis for the award must be pursued through ordinary post-judgment and appellate mechanisms within the court’s plenary period. Waiting and then relabeling the complaint as “clerical” is not a viable strategy.

In divorce and property cases, the same reasoning should apply to changes in the division of retirement assets, reimbursement claims, equalization payments, and characterization-related relief. In SAPCR and modification matters, it applies to fee shifting, child-support calculations, medical-support obligations, and reimbursement deadlines. If the requested “correction” changes who owes what, to whom, or whether anyone owes anything at all, the red flag should go up immediately.

Checklists

Evaluating Whether Nunc Pro Tunc Relief Is Available

• Identify the exact language in the signed judgment or order that the movant wants changed.
• Determine whether the alleged error concerns the court’s decision itself or only the recording of that decision.
• Ask what the court actually rendered, not what a party believes the court intended to render.
• Review the reporter’s record for any oral rendition that may control.
• Review written memoranda, docket entries, and other competent evidence bearing on rendition.
• Confirm whether the signed order was the first operative rendition on the disputed issue.
• If the requested change would alter the parties’ substantive rights or obligations, treat it as judicial, not clerical.

Preserving Error Before Plenary Power Expires

• Calendar the plenary-power deadline immediately upon signing of the final order.
• File a motion to modify, correct, reform, or for new trial if the signed order contains a substantive error.
• Do not assume that an “obvious mistake” can be fixed later by nunc pro tunc.
• If attorney’s fees were awarded contrary to the court’s supposed intent, raise that issue within plenary power.
• Consider requesting findings or a clarifying record promptly if the court’s rendition is unclear.
• Perfect appeal if the substantive error is not corrected while the trial court retains jurisdiction.

Drafting and Proving Attorney’s-Fee Relief in Family Cases

• Obtain a clear oral ruling if possible, especially when fees are contested.
• If the court takes fees under advisement, submit a proposed order that states the fee award precisely.
• Include the amount, payee, payor, due date, and enforceability language in the written order.
• Ensure the clerk’s record reflects the affidavit, billing support, and any stipulations.
• If the court signs a fee award you did not expect, address it immediately through post-judgment practice.
• Avoid relying on later recollections about what the court “meant” to do.

Responding to an Opponent’s Nunc Pro Tunc Motion

• Compare the original order and proposed nunc pro tunc line by line.
• Emphasize whether the proposed change would modify liability, amount, timing, or entitlement.
• Argue from rendition: identify where and when the court actually decided the issue.
• Cite Rule 316, Rule 329b, Escobar, Andrews, and Dikeman.
• Frame any attempted deletion or replacement of relief as a judicial rewrite.
• If plenary power has expired, challenge the nunc pro tunc order as void, not merely erroneous.

Using Clarification Motions Without Crossing the Line

• Limit clarification requests to ambiguous enforcement details that do not alter substantive rights.
• Correct addresses, ministerial identifiers, typographical errors, and payment mechanics carefully.
• Do not use a clarification motion to eliminate an award or convert it into a take-nothing judgment.
• Make sure any proposed “clarification” is consistent with the relief already rendered.
• If the change affects entitlement rather than implementation, proceed under ordinary post-judgment remedies instead.

Citation

In the Interest of S.M.M. and R.M.M., Minor Children, No. 05-24-01212-CV, 2026 WL ___ (Tex. App.—Dallas May 12, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

~~ed33f099-85f4-42f1-9e49-e5eeeff78bc7~~