in the Matter of the Marriage of Katie Spahn and Rodney Spahn

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00254-CV

IN THE MATTER OF THE MARRIAGE OF KATIE SPAHN AND RODNEY SPAHN

From the 13th District Court Navarro County, Texas Trial Court No. 06-15572-CV

MEMORANDUM OPINION

Rodney Spahn appeals from the entry of a qualified domestic relations order

based on an agreed final decree of divorce and of the denial of his motion for nunc pro

tunc of the decree of divorce. He complains that the trial court abused its discretion in

awarding attorney’s fees to his ex-wife, Katie Spahn-Northern, and that the trial court

erred by denying his motion for judgment nunc pro tunc to correct the date of the

parties’ marriage in the final decree of divorce. Because we find that the trial court

abused its discretion by awarding attorney’s fees, we modify the judgment to delete the

award of attorney’s fees, and as modified, affirm the judgment of July 1, 2009. We find

that we do not have jurisdiction over Rodney’s complaint regarding the denial of his motion for judgment nunc pro tunc and dismiss the claim relating to the judgment

signed on September 9, 2009.1

Award of Attorney’s Fees

Rodney complains that the trial court erred by granting Katie attorney’s fees

because there was no statutory authority to support the award of attorney’s fees and

that there was insufficient evidence presented regarding the reasonableness and

necessity of the fees awarded.

Section 9.106 of the Family Code has been added to the Family Code and became

effective on September 1, 2009. That section authorizes the award of attorney’s fees in

proceedings regarding post-decree qualified domestic relations orders. TEX. FAM. CODE

ANN. § 9.106, added by Acts 2009, 81st Leg., ch. 768, § 9, eff. Sept. 1, 2009 (Vernon Supp.

2009). Prior to this time, the only section that granted the authority for the trial court to

award attorney’s fees was section 9.014. See TEX. FAM. CODE ANN. § 9.014 (Vernon

2007). However, section 9.014 is specifically limited to proceedings under that

subchapter, which does not include the entry of a qualified domestic relations order.

See id.

The live pleading before the trial court at the time of the order awarding

attorney’s fees was a motion to sign qualified domestic relations orders. There was no

request for clarification or enforcement of the divorce decree contained within those

pleadings. Therefore, section 9.014 did not apply. Katie has not provided any other

1There were two separate judgments entered that form the basis of this appeal. The first is entitled “Order on 1st Amended Motion to Enter QDROs,” which was signed on July 1, 2009. The second is entitled “Order on Motion for Judgment Nunc Pro Tunc,” which was signed by the trial court on September 9, 2009.

In the Matter of the Marriage of Spahn Page 2 statutory authority to support the award of attorney’s fees. We find that the trial court

abused its discretion in awarding attorney’s fees to her in this matter. We sustain issue

one.

Judgment Nunc Pro Tunc

Rodney complains that the trial court erred by denying his motion for a

judgment nunc pro tunc to correct the date of the parties’ marriage in the final decree of

divorce. However, with few exceptions, a party may appeal only a final judgment of

the trial court. The denial of a motion to correct a judgment nunc pro tunc is not a final

judgment and not subject to appeal. Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d

210, 211 (Tex. 1990). Therefore, the issue regarding any error in the denial of his motion

for a judgment nunc pro tunc is dismissed for lack of jurisdiction. We overrule issue

two.

Conclusion

We find that the trial court abused its discretion in awarding attorney’s fees to

Katie Spahn-Northern because there was no statutory authority to support an award of

attorney’s fees. We do not have jurisdiction to review the denial of Rodney Spahn’s

motion for judgment nunc pro tunc. Therefore, we modify the judgment of the trial

court to delete the award of attorney’s fees to Katie Spahn-Northern, and otherwise

affirm the judgment of the trial court signed on July 1, 2009. The appeal of the

judgment signed on September 9, 2009 is dismissed.

TOM GRAY Chief Justice

In the Matter of the Marriage of Spahn Page 3 Before Chief Justice Gray, Justice Reyna, and Justice Davis Modified in part, and as modified, affirmed in part; dismissed in part Opinion delivered and filed June 16, 2010 [CV06]

In the Matter of the Marriage of Spahn Page 4