Opinion issued July 16, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00234-CV ——————————— DUSTIN ANDREW GULLEY, Appellant V. AMY SUZANNE GULLEY, Appellee
On Appeal from the 253rd District Court Chambers County, Texas Trial Court Case No. 18-DCV-0099
MEMORANDUM OPINION
Dustin Gulley and Amy Gulley are joint managing conservators of A.L.G.
Dustin is A.L.G.’s paternal uncle, and A.L.G. resides primarily with him. Amy is
A.L.G.’s mother. Dustin appeals the trial court’s January 3, 2018 possession order
(“possession order”), arguing that the order constituted a substantive change in the access and possession terms of the final SAPCR decree in violation of section
157.423 of the Texas Family Code. He also appeals the trial court’s January 2, 2018
attorney’s fees order (“attorney’s fees order”) that characterized an attorney’s fee
award as child support.1 We agree and reverse.
Background
A.L.G.’s father, Dustin’s brother, is deceased. In June 2016, Dustin filed a
suit seeking to be named A.L.G.’s primary conservator. In April 2017, Dustin and
Amy appeared in the trial court and announced that they had reached an agreement
in consultation with the child’s amicus attorney. The agreement was approved by
the trial court on the same day2 and a written order incorporating the agreement was
signed on June 30, 2017.
The SAPCR order awarded primary possession to Dustin, limiting Amy to
periodic, limited possession. A drug testing provision of the possession order stated:
It is ORDERED that DUSTIN ANDREW GULLEY has the right to request AMY LOCKHART GULLEY to submit to urine and hair drug testing once per month via TalkingParents.com. Notice may not be sent on Friday through Sunday at 9:00 a.m.
IT IS FURTHER ORDERED that AMY SUZANNE LOCKHART3 shall schedule an appointment and appear at National Screening 1 Both orders that Dustin appeals were issued in Harris County. Since that time, the case has been transferred to Chambers County. 2 Amy did not sign the agreement, but the agreement was read into the record and ordered by the court. 3 Amy’s name appears in the orders as both Amy Lockhart Gulley and Amy Suzanne Lockhart. 2 Center, 407 Fannin, Houston, Texas 77002, . . . within 24 hours of DUSTIN ANDREW GULLEY sending AMY SUZANNE LOCKHART notice via TalkingParents.com with appropriate photographic identification to submit to urine and hair drug testing. IT IS FURTHER ORDERED that AMY SUZANNE LOCKHART shall remain there until such tests are completed and permit the taking of hair, urine, blood, body fluid, or tissue samples from her respective person to enable the drug screeners to make and perform such tests for the Court with a view to informing the Court of their professional opinions concerning the possibility, probability, or certainty of whether AMY SUZANNE LOCKHART is using, or has used, illegal drugs (not prescribed) or alcohol such as:
[LIST OF DRUGS] . . . .
It IS FURTHER ORDERED that if AMY SUZANNE LOCKHART fails or refuses to appear at National Screening Center, 407 Fannin, Houston, Texas 77002 . . . within 24 hours of DUSTIN ANDREW GULLEY sending AMY SUZANNE LOCKHART notice via TalkingParents.com with appropriate identification and permit the taking of [samples] from her respective person, AMY SUZANNE LOCKHART’s results shall be deemed positive. In the event, AMY SUZANNE LOCKHART’s tests (sic) at a higher level than 3.66 picograms for marijuana, it is ORDERED that test shall be deemed positive. In the event that AMY SUZANNE LOCKHART’s tests positive, whether actual positive result or deemed positive result, for any type of drug whether cocaine or any other type of drug without a valid prescription prescribed to AMY SUZANNE LOCKHART, it is ORDERED that all AMY SUZANNE LOCKHART’s periods of possession set forth in the Possession Order below are suspended pending further order of the Court. IT IS ORDERED that the drug testing as prescribed herein shall be a zero-tolerance drug test.
3 The drug testing language is repeated in the section of the SAPCR decree
covering possession. It reiterates that if Amy tested higher than 3.66 picograms4 for
marijuana, the test would be deemed positive, and in the event of a positive test,
whether actually positive or deemed positive, for any drug, Amy’s periods of
possession would be suspended until further order of court.
On August 1, 2017, just over a month after the order was entered, Amy filed
a motion for enforcement of possession and access to A.L.G. She amended her
motion on October 24, 2017. The amended motion alleged six occasions when
Dustin did not have A.L.G. available for Amy. Amy asked the trial court for a variety
of relief, including holding Dustin in criminal and civil contempt for each violation,
granting her additional periods of possession, and ordering Dustin to pay attorney’s
fees. Amy also included a request that, “if the Court finds that any part of the order
sought to be enforced is not specific enough to be enforced by contempt, the Court
enter a clarifying order more clearly specifying the duties imposed on [Dustin] and
giving [Dustin] a reasonable time within which to comply.” See TEX. FAM. CODE §
157.424 (request for clarification may be brought with motion for enforcement).
Amy alleged that attorney’s fees were necessary to ensure A.L.G.’s physical or
emotional health or welfare and should be enforceable by any means available for
4 While the full measurement ratio is not in the record, drug testing results for marijuana metabolites are generally expressed as picograms per milligram (pg/mg). 4 enforcement of child support including contempt but not including income
withholding. See TEX. FAM. CODE § 157.167(b).
After a hearing, the trial court did not find Dustin in contempt, finding instead
that certain terms of the order were not specific enough to be enforced by contempt.
The court entered the possession order adding language requiring Dustin to send
notice of a drug test to Amy “at a reasonable time” that gives her “an actual 24 hours
to comply.” The court also added language that if Amy tested higher than 3.66
picograms “for ingestion” of marijuana, the test would be deemed positive. The trial
court found that Dustin violated the original order by failing to surrender A.L.G. to
Amy on two occasions and ordered Dustin to pay $1,500 in attorney’s fees to Amy’s
attorney.
Dustin filed a motion for de novo review regarding the attorney’s fees award.
On January 3, 2018, the presiding judge issued the attorney’s fees order that
confirms the $1,500 fee award but specified that it would be enforceable both as a
debt and as child support. Dustin appealed.
Clarification or Substantive Change
In his first two issues, Dustin contends that the trial court erred in issuing the
possession order. He argues that the order made substantive changes to the
possession terms in the final SAPCR decree. We agree.
5 A. Statutory Background
Section 157.421 of the Texas Family Code grants a trial court the authority to
clarify a previous order on motion of a party or on the court’s own motion by
rendering an order that is “specific enough to be enforced by contempt.” TEX. FAM.
CODE § 157.421. “To be enforceable by contempt, a judgment must set out the terms
for compliance in clear and unambiguous terms.” Ex parte Brister, 801 S.W.2d 833,
834 (Tex. 1990 ) (orig. proceeding). “The judgment must also clearly order the party
to perform the required acts.” Id. The judgment must be sufficiently specific such
that the person charged with obeying the judgment will readily know exactly what
duties and obligations are imposed. See Ex parte Chambers, 898 S.W.3d 257, 260
(Tex. 1995) (orig. proceeding). If the court’s judgment requires inferences or
conclusions about whether particular conduct is encompassed by the judgment and
concerning which reasonable person might differ, the judgment is insufficient to
support a contempt order. Id.
When clarifying an order, the trial court “may not change the substantive
provisions of an order to be clarified . . . .” TEX. FAM. CODE § 157.423(a). The Family
Code does not define “substantive change,” but Texas courts look to judgments nunc
pro tunc to provide guidance on what constitutes a “substantive change” because a
“clarification order is analogous to a judgment nunc pro tunc in that it cannot
substantively change a final order.” In re Marriage of Ward, 137 S.W.3d 910, 913
6 (Tex. App.—Texarkana 2004, no pet.); see also Weido v. Weido, No. 01-15-00755-
CV, 2016 WL 1355764, at *2 (Tex. App.—Houston [1st Dist.] Apr. 5, 2016, no pet.)
(mem. op.). Such a judgment can only correct a clerical error. See Ward, 137 S.W.3d
at 913.
In the nunc pro tunc context, two types of errors exist: (1) judicial errors and
(2) clerical errors. A substantive change occurs when the error is “judicial,” that is,
the trial court corrects an error that “results from judicial reasoning or
determination.” Id. A trial court can enter a judgment nunc pro tunc only to correct
a clerical error, i.e. an error that “results from inaccurately recording the decision of
the court. . . .” Id. “When deciding whether a correction is of a judicial or a clerical
error, we look to the judgment actually rendered, not the judgment that should or
might have been rendered. . . . Thus, even if the court renders [judgment] incorrectly,
it cannot alter a written judgment which precisely reflects the incorrect rendition.”
Escobar v. Escobar, 711 S.W.2d 230, 231–32 (Tex. 1986) (internal citations
removed).
B. Standard of Review
The determination of whether an alleged error is “clerical or judicial is a
question of law.” Dickens v. Willis, 957 S.W.2d 657, 659 (Tex. App.—Austin 1997,
no pet.); see also Weido, 2016 WL 1355764, at *2. Before deciding whether the error
is clerical or judicial, however, the trial court must first determine whether it
7 previously rendered judgment and the judgment’s contents. Escobar, 711 S.W.2d at
232; Dickens, 957 S.W.2d at 659. Proof of a clerical error must be supported by
“clear, satisfying, and convincing” evidence. Dickens, 957 S.W.2d at 659.
We may review the finding for legal and factual sufficiency of the evidence.
Weido, 2016 WL 1355764, at *3. If we determine that an error exists, we consider
the legal question of whether the error is clerical or judicial. See McMahahon v.
Zimmerman, 433 S.W.3d 680, 691 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
We examine this legal question de novo. See Escobar, 711 S.W.2d at 232 (stating
that question is of law); In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994)
(“[Q]uestions of law are always subject to de novo review.”).
C. Analysis
Dustin contends that the trial court erred in revising the possession order
because there is no evidence that the original judgment contained error, and
assuming there was error, a “clarification” order was inappropriate because the
change was substantive rather than clerical. We agree.
It is a “heavy burden . . . to establish that the error involved is clerical in
nature. . . and, thus, one for which a clarification order may be entered.” Ward, 137
S.W.3d at 914. If an error existed in the order, a clarification was not appropriate in
this context because the changes made were substantive changes. We can look to the
plain meaning of the words in the decree to determine whether an error is judicial or
8 clerical. For an error to be clerical rather than judicial, and thus correctable by a
clarification order, correcting the error in the wording of the order must not require
“additional judicial reasoning.” Id. “The only basis for clarifying a prior decree is
when a provision is ambiguous and non-specific.” Lundy v. Lundy, 973 S.W.2d 687,
688–89 (Tex. App.—Tyler 1998, pet. denied).
Ward compared two cases to illustrate the difference between clerical and
judicial error. 137 S.W.3d at 913–16. In one case, the recorded land deed neglected
to convey to the buyer an easement, which the land sale contract stated the buyer
should receive. Id. at 914 (discussing Andrews v. Koch, 702 S.W.2d 584, 586
(Tex. 1986)). The error was clerical because the contract showed that the parties
intended to convey the easement. Id. at 914. In the second, the final judgment listed
damages for each of 87 lost bales of cotton but accidently omitted the value of six
bales. Id. (discussing Missouri Pac. Ry. Co. v. Haynes, 18 S.W. 605 (1891)). This
error was judicial because it required additional judicial reasoning to find the value
of the six bales. Id.
The trial court’s January 2, 2018 possession order made two changes to the
possession and access terms of the final SAPCR decree. We will review each in turn.
9 1. The notice provision
The possession order added language regarding when Dustin could send Amy
notice of a drug test. Dustin contends that this was an improper modification that
required judicial reasoning, not a correction of a clerical error. We agree.
The possession order required Dustin to send notification for drug testing to
Amy at reasonable time that provided Amy with an actual 24 hours to comply. But
this change was not a clarification, it was an improper modification that added to
Dustin’s obligations. See TEX. FAM. CODE § 157.423; In re V.M.P., 185 S.W.3d 531,
534 (Tex. App.—Texarkana 2006, no pet.) (clarification removing language from
divorce decree was an impermissible substantive change because it changed the
father’s child support obligation). The final SAPCR decree’s possession and access
terms were specific, non-ambiguous, and could be enforced by contempt. The decree
clearly articulated each party’s obligations. The final decree includes: Dustin may
request a drug test from Amy once each month; he must send the request to Amy via
a specific coparenting website; both parties must maintain a subscription to the
website; Dustin may not send the notice to Amy on Fridays through Sundays at 9:00
a.m.; Amy must schedule an appointment and appear for testing at a specified testing
center within 24 hours of Dustin sending notice; and if Amy fails to do so, her test
is deemed positive. By adding that Dustin must send the request within a reasonable
time that gives Amy an actual 24 hours to comply, the trial court used judicial
10 reasoning to add to the order. See Ward, 137 S.W.3d at 914. Because the original
text was unambiguous, the trial court was without authority to clarify the order. See
Lundy, 973 S.W.2d at 688–89.
2. The drug testing results
The possession order also changed the final SAPCR decree’s drug testing
provision to read: “In the event [Amy] tests at a higher level than 3.66 picograms for
ingestion of marijuana, the test is deemed positive.” (emphasis added). Dustin
argues that the original order was specific and unambiguous, providing that any level
of marijuana higher than 3.66 picograms would be deemed positive. We agree.
The addition of “ingestion” was a substantive change because the original
order did not differentiate between ingestion of marijuana and other environmental
exposure to it. The trial court exercised judicial reasoning by determining that the
intent of the original order was only ingestion of marijuana and inserting the
additional language. In R.F.G., the trial court erred by modifying an unambiguous
divorce decree. In re R.F.G., 282 S.W.3d 722, 728 (Tex. App.—Dallas 2009, no
pet.). The divorce decree awarded the husband the “bed” but the wife argued that
this only entitled him to the “mattress and box spring,” not the “bedframe.” Id. The
trial court erred in looking to other, extrinsic evidence to determine the parties’
intended definition of a “bed.” Id. at 728–29. The appellate court held that the plain,
unambiguous meaning of “bed” included the bedframe, and the trial court’s
11 clarification requiring the husband to pay for the frame was an impermissible
substantive change. Id. Similarly, the plain, unambiguous meaning of the marijuana
testing provision states that if the result is any level over 3.66 picograms, the test is
deemed positive. It does not differentiate between ingestion or other environmental
marijuana exposure. The trial court erred in considering extrinsic evidence from the
enforcement hearing to determine the intent of the parties. Since the original order
was unambiguous, the trial court was without authority to clarify the judgment. See
Accordingly, we strike the “Clarification of Prior Order” section and the
language “the previous order is clarified as listed above” from the “Relief Granted”
section of the court’s January 2, 2018 possession order.
Attorney’s Fees
Dustin argues that the trial court erred in making the judgment for fees
enforceable as child support because there was no evidence that enforcement of the
order was necessary to ensure the child’s physical or emotional safety or welfare.
We agree.
A. Standard of Review
The award of attorney’s fees as child support is a legal conclusion that we
review de novo. See In Re A.M.W., 313 S.W.3d 887, 893 (Tex. App.—Dallas 2010,
no pet.). Fees may be awarded as child support only if the court finds that (1) the
12 respondent failed to make child support payments, or (2) the respondent failed to
comply with the terms of an order providing for possession or access and
enforcement of the order was necessary to ensure the child’s physical or emotional
health or welfare. TEX. FAM. CODE § 157.167(a)–(b). Otherwise, the fees awarded in
a suit affecting the parent-child relationship may be collected by any means available
for the enforcement of judgment on a debt. Id. § 106.002(b).
B. Analysis
The court erred in characterizing the fee award as a form of child support.
Amy’s motion for enforcement of possession or access complained that on six
occasions Dustin failed to make A.L.G. available as required by the SAPCR order.
She requested, among other relief, that Dustin be held in contempt for each of the
six violations and that the court grant her additional periods of access to A.L.G. After
a hearing, the court found that Dustin denied Amy her court-ordered period of access
and possession on two occasions. There was no contempt finding. The court made
no finding that enforcement of the SAPCR order’s possession and access terms was
necessary to ensure A.L.G.’s physical or emotional health or welfare, as was
required for the fee award to be enforceable as child support. The only testimony
presented at the de novo hearing was Amy’s lawyer’s testimony regarding his
qualifications, hourly rate, and time spent on the case. The only evidence at the prior
enforcement hearing was Amy’s testimony that she hired her attorney to represent
13 her pursuing enforcement for $1,500. See TEX. FAM. CODE § 201.317(f) (At a de
novo hearing the trial court may consider the record from the prior hearing.). There
is no basis in fact or in law to characterize the fee award in this case as a form of
child support.
Accordingly, we strike the language from the attorney’s fees order that allows
for the enforcement of the attorney fee’s award by treating it as child support. See
TEX. FAM. CODE § 157.167(b).
Conclusion
We reverse the trial court’s January 2, 2018 possession order with respect to
the drug testing timing and marijuana level provisions. We modify the order to strike
the “Clarification of Prior Order” section and to strike the phrase “the previous order
is clarified as listed above” from the “Relief Granted” section.
We modify the trial court’s January 3, 2018 attorney’s fees order by striking
the language that allows for enforcement under Section 157.167(b) of the Family
Code.
Peter Kelly Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.