dissenting.
I respectfully dissent. I do agree that the law is well settled in this state that clerical errors in the entry of a judgment may be corrected by a nunc pro tunc judg*422ment but judicial errors may not be so corrected. Comet Aluminum Company v. Dibrell, supra; Finlay v. Jones, 435 S.W.2d 136 (Tex.1968). Statement of the rule is simple, application of the rule presents difficulties.
In its application, as stated in Reavley and Orr, Trial Court’s Power to Amend its Judgments, 25 Baylor Law Review 191,196 (1973):
(T)he critical inquiry is not what judgment might or ought to have been rendered, but only what judgment was rendered. When the judgment as entered on the minutes of the court is at variance with the judgment that was actually rendered, the court has the power to correct the judgment by a nunc pro tunc entry.
The court in Wallace v. Rogers, 517 S.W.2d 301 (Tex.Civ.App.—Dallas 1974, writ ref’d n.r.e.) said:
A judicial error is one made by the court in rendering its judgment while a clerical error occurs when the minutes of the court fail to accurately recite the judgment rendered. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819 (1936).
The law review article further stated at 197:
The following are examples of mistakes that have been held to be judicial and thus not correctable after the judgment becomes final: (1) where the judge determines subsequent to the rendition of judgment that recitals of fact in the judgment were erroneous; (2) where the judge determines that he rendered judgment under a misconception of law; (3) where the judge determines that the terms of the judgment as rendered should be changed; (4) where the judge determines that something should be added to the judgment that was rendered; (5) where the judge determines that something should be deleted from the judgment that was rendered.
In the case at bar, at the divorce hearing, after the testimony had been offered and the parties had indicated an agreement had been reached regarding all matters pertaining to the divorce, the following occurred:
MR. GREENE (Appellee’s attorney): Your Honor, before you continue there, one stipulation that the parties agreed upon that I failed to bring out, the appointment of Mr. Hart as managing conservator-joint managing conservator also includes the right to determine the residence of the children, exclusive of his wife’s right to do that, Your Honor, and we have agreed upon that and I failed to bring that out during the testimony.
MR. ARMSTRONG (Appellant’s attorney): My understanding of the agreement is that the order setting out the powers of the joint managing conservators, which are contained in the temporary orders, other than as modified for support and specific possession will be continued.
MR. GREENE: All right. That is basically the agreement, Your Honor.
THE COURT: All right. That will be approved by the Court. I think that is in the temporary orders. (Emphasis ours)
MR. ARMSTRONG: Yes, it is.
MR. GREENE: Yes, sir.
The temporary orders, referred to by the court, gave appellee the right to establish the children’s “legal domicile.” In its original decree of divorce, the court carried forward the term “legal domicile,” as found in the temporary orders except as to paragraph 9 as included in the majority opinion. That is the court’s rendition of its judgment with respect to the custody of the children. This is confirmed by the court’s statement at the conclusion of a joint hearing on the motion for judgment nunc pro tunc and a contempt hearing seeking to hold appellant in contempt for violating the court’s judgment. The court stated:
Since the Court did not use the word “residence” in the Judgment, which, was entered and which has been the Judgment up to this date, I find that there is not sufficient evidence to hold the Respondent in contempt, and, therefore, the motion for contempt is refused.
Then judgment nunc pro tunc was entered adding the term “residence.” Addition of this term was a judicial determination adding to the judgment actually ren*423dered. There may have been a mistake of the court in its rendition whereby an improper judgment was rendered, but it was nevertheless a judicial act. Miller v. Texas Life Ins. Co., 123 S.W.2d 756 (Tex.Civ.App.—Dallas 1938, writ ref’d n.r.e.); Smith v. State, 450 S.W.2d 393 (Tex.Civ.App.—Austin 1970, no writ). The court should not grant judgment nunc pro tunc unless the evidence is clear, satisfactory and convincing that a clerical error was made. Mobley v. Rheem Manufacturing Company, 410 S.W.2d 320 (Tex.Civ.App.—Houston 1966, writ ref d n.r.e.).
The judge signed the original decree exactly as written and approved by both parties. It was signed and approved as the record showed that it was rendered. The evidence is not clear, satisfactory and convincing that the rendition included the term “residence.” I would, therefore, hold that the change constituted the correction of a judicial error which cannot be validly accomplished by a judgment nunc pro tunc.
Further, if in fact the terms “domicile” and “residence” are synonyms there would be no necessity for the nunc pro tunc judgment.
I would reverse the judgment of the trial court granting the motion for judgment nunc pro tunc with the result that such judgment should be stricken from the minutes of said court.