In the Interest of R.K.F. and D.J.F., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 20, 2024
• Docket: 06-23-00072-CV
• Status: Published

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-23-00072-CV

IN THE INTEREST OF R.K.F. AND D.J.F., CHILDREN

On Appeal from the 123rd District Court Panola County, Texas Trial Court No. 2019-033

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice Rambin MEMORANDUM OPINION

This is a pickup/drop off location battle between divorced parents that has given rise to a

question of the trial court’s ability to clarify the custody provision(s) of a divorce decree. The

trial court entered its final decree of divorce that contained a possession and access order on

April 4, 2019. On April 11, 2023, the trial court entered its order modifying the possession and

access order. Two days later, Mother filed a motion to clarify the April 11 order, which the trial

court granted on August 2, 2023. In this pro se appeal, Father seeks to reverse the trial court’s

clarification order. Because we find that the trial court did not abuse its discretion when it

entered the clarification order, we will affirm the trial court’s clarification order.

I. Background

Mother and Father have two minor children, R.K.F. and D.J.F.1 In its divorce decree, the

trial court appointed Mother and Father joint managing conservators of the children and granted

Mother the exclusive right to designate the primary residence of the children within a specified

geographical area. The possession and access order decreed the beginning and ending times of

Father’s periods of possession of the children on certain weekends, holidays, spring vacation,

and in the summer. In addition, the order provided that Father would have possession of the

children “[o]ne day during the week that [was] mutually agreed upon by the parties.” It also

provided that Mother must exchange the children with Father at her residence or the children’s

school at the beginning of his possession and that Father must return the children to Mother at

her residence or the children’s school at the end of his period of possession.

1 To protect the privacy of the minor children, we refer to them by their initials and to their parents as Mother and Father. See TEX. R. APP. P. 9.9. 2 According to Father, he brought a Second Motion for Enforcement of Possession or

Access and Third Amended Cross-Petition to Modify Parent-Child Relationship (Petition to

Modify) before the trial court, which was heard on January 31, 2023.2 Apparently, a dispute

arose between the parties regarding a proposed order drafted by Father after the January 31

hearing. After an additional hearing on April 11, 2023, the trial court entered its order modifying

the parent-child relationship (Order in Suit to Modify). Regarding possession and access, the

order modified, somewhat, the beginning and ending times that Father would have possession of

the children on certain weekends, holidays, spring vacation, and in the summer. The order no

longer contained a clause giving Father possession one day a week by mutual agreement. The

order added a clause setting a specific date and time:

3. Tuesdays – On Tuesdays of each week during the regular school term, beginning at the time the child[ren]’s school is regularly dismissed and ending at 8:00 PM on that same day.

In addition, the order replaced the original exchange clause with the following:

Except as otherwise expressly provided in this Possession Order, the terms and conditions of possession of the child[ren] that apply regardless of the distance between the residence of a parent and the child[ren] are as follows:

1. Exchange of Child[ren] by Both Parties – If school is in session and [sic] the time of exchange, the party entitled to possession shall pick up the child[ren] from school. If school is not in session at the time of exchange, the party out of possession shall pick up the child[ren] at the residence of the party in possession at the end of a period of possession.

(Exchange of Children Clause).

2 Neither the Petition to Modify nor the transcript of the January 31 hearing is included in the appellate record. 3 A. The Change in Actual Practice

According to Father, between the January 31 hearing and the April 11 hearing, he picked

the children up at their school for his Tuesday possession and delivered them to Mother’s

residence at the end of his possession period.

However, beginning on April 11, Father picked the children up at their school for his

Tuesday possession and required Mother to pick them up at his residence at the end of his

possession period.

B. The Motion for Clarification

On April 13, 2023, Mother filed her motion for clarification in which she asserted that the

Exchange of Children Clause was ambiguous and asked the trial court to clarify its order in

relation to where the exchange of the children should take place at the end of Father’s period of

possession on Tuesdays “to reflect the actual ruling of the Court.” A hearing on the motion for

clarification was held on May 3, 2023, after which the trial court agreed that the clause was

ambiguous3 and entered its order of clarification that provided, in relevant part,

IT IS ORDERED [Father] shall have access to the children on Tuesdays of each week, during the regular school term, beginning at the time the child[ren]’s school is regularly dismissed and ending at 8:00 PM on that same day. IT IS FURTHER ORDERED [Father] shall pick the children up for said visitation upon their release from school each Tuesday and shall return the children to the residence of [Mother] at 8:00 p.m. that same day.

Father appeals.

3 The trial court entered findings of fact and conclusions of law in which it found, among other things, that the order of clarification “was unclear and ambiguous as to the return of the child[ren] by [Father] at the end of his weekday periods of possession of the children during the regular school term.” 4 II. Clarification Orders and Standard of Review

“We review a trial court’s clarifying order for an abuse of discretion.” In re Marriage of

McDonald, 118 S.W.3d 829, 832 (Tex. App.—Texarkana 2003, pet. denied). “A trial court

abuses its discretion when it acts ‘without reference to any guiding rules or principles; or in other

words, [when it acts] arbitrarily or unreasonably.’” In re J.J.R.S., 627 S.W.3d 211, 218 (Tex.

2021) (alteration in original) (quoting Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)

(per curiam)).

A trial court is authorized to clarify an order it rendered in a family-law proceeding “if

the court finds, on the motion of a party or on the court’s own motion, that the order is not

specific enough to be enforced by contempt.” TEX. FAM. CODE ANN. § 157.421(a). In doing so,

it must “render[] an order that is specific enough to be enforced by contempt.” TEX. FAM. CODE

ANN. § 157.421(b). Nevertheless, “[a] court may not change the substantive provisions of an

order to be clarified[.]” TEX. FAM. CODE ANN. § 157.423(a).

“[F]or a person to be held in contempt for disobeying a court decree, the decree must

spell out the details of compliance in clear, specific and unambiguous terms so that such person

will readily know exactly what duties or obligations are imposed upon him.” In re J.J.R.S., 627

S.W.3d at 223 (quoting Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding)). As

a result, “[t]he order must not ‘requir[e] inferences or conclusions about which reasonable

persons might differ.’” In re Luther, 620 S.W.3d 715, 722 (Tex. 2021) (per curiam) (orig.

proceeding) (second alteration in original) (quoting Ex parte Chambers, 898 S.W.2d 257, 260

(Tex. 1995) (orig. proceeding)). “A court order that fails to meet these requirements is not

5 ‘definite and certain enough to support a finding of contempt.’” Id. (quoting Ex parte Hodges,

625 S.W.2d 304, 306 (Tex. 1981) (orig. proceeding)). “As with other written instruments,

whether a[n order rendered in a family law proceeding] is ambiguous is a question of law” and

subject to de novo review. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003) (citing Coker

v. Coker, 650 S.W.2d 391, 394 (Tex. 1983)).

“A clarification order is analogous to a judgment nunc pro tunc in that it cannot

substantively change a final order.” In re V.M.P., 185 S.W.3d 531, 534 (Tex. App.—Texarkana

2006, no pet.) (quoting In re Marriage of Ward, 137 S.W.3d 910, 913 (Tex. App.—Texarkana

2004, no pet.)). “To be clerical in nature, the error must be one that is not the result of judicial

reasoning, evidence, or determination.” Id. (quoting In re Marriage of Ward, 137 S.W.3d at

913). “Correction of a clerical error does not effect a substantive change in the court’s order.”

Id. (quoting In re Marriage of Ward, 137 S.W.3d at 913). “[W]hen an error results from

inaccurately recording the decision of the court, the error is clerical.” Dickens v. Willis, 957

S.W.2d 657, 659 (Tex. App.—Austin 1997, no pet.) (citing Escobar v. Escobar, 711 S.W.2d

230, 231 (Tex. 1986)). As a result, a judgment may “be corrected . . . if it incorrectly states the

judgment actually rendered.” Rogers v. Peeler, 271 S.W.3d 372, 376 (Tex. App.—Texarkana

2008, pet. denied) (citing Escobar, 711 S.W.2d at 231–32).4 “On the other hand, judicial error

results from judicial reasoning or determination.” In re V.M.P., 185 S.W.3d at 534 (quoting

4 “Judgment is rendered when the trial court officially announces the decision in open court or by written memorandum filed with the clerk.” Rogers, 271 S.W.3d at 376 (citing S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam)). 6 In re Marriage of Ward, 137 S.W.3d at 913). “Substantive change results from correction of a

judicial error.” Id. (quoting In re Marriage of Ward, 137 S.W.3d at 913).

III. Analysis

A. The Change in the Clarification Order Was Clerical

In his first issue, Father asserts that the trial court erred because the clarification order

made substantive changes in the Order in Suit to Modify. However, although Father cites

Section 157.423 of the Texas Family Code and an El Paso Court of Appeals case5 for the

proposition that a clarification order may not make substantive changes to the order clarified, his

brief provides no cogent argument or analysis of how the clarification order made substantive

changes to the Order in Suit to Modify. “A brief must provide citations or argument and analysis

for the contentions and failure to do this can result in waiver.” RSL Funding, LLC v. Newsome,

569 S.W.3d 116, 126 (Tex. 2018) (citing TEX. R. APP. P. 38.1(i), 38.2(a)(1); Ross v. St. Luke’s

Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015)).

Further, as previously noted, the transcript of the January 31 hearing was not included in

the appellate record. “In almost every circumstance, it is the duty of the appellant to present a

sufficient record to demonstrate that error was committed that requires the appellate court to

render a reversal.” Yurik v. Phillips, No. 06-15-00026-CV, 2015 WL 5460670, at *2 (Tex.

App.—Texarkana Sept. 17, 2015, no pet.) (mem. op.) (citing Nicholson v. Fifth Third Bank, 226

S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). “The appellate record consists

5 Father cites Williams v. Williams for the proposition that clarification proceedings should not be confused with modification proceedings. Williams v. Williams, 407 S.W.3d 770, 775 (Tex. App.—El Paso 2012, no pet.). While accurate, Williams, which only addressed the issue of whether the clarified order in that case was ambiguous, provides no guidance regarding whether the clarification order in this case made a substantive change to the Order in Suit to Modify. 7 of the clerk’s record and, if necessary to the appeal, the reporter’s record.” Id. (quoting TEX. R.

APP. P. 34.1). “When we are not provided with a reporter’s record, we indulge every

presumption to support the finding made by the trial court.” Id. (citing Bryant v. United

Shortline, Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998)). “[W]hen an appellant

fails to bring a reporter’s record, an appellate court must presume the evidence presented was

sufficient to support the trial court’s order.” Id. (alteration in original) (quoting Willms v.

Americas Tire Co., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006, pet. denied)).

In this case, the trial court heard the Petition to Modify on January 31. As a result, the

transcript of that hearing was relevant to our analysis of whether the Order in Suit to Modify

correctly stated the trial court’s rendition on January 31 regarding where the exchange of the

children should take place at the end of Father’s period of possession on Tuesdays. In her

motion for clarification, Mother asserted that her request to clarify that Father was to return the

children to Mother’s residence at the end of his Tuesday possession period “reflect[ed] the actual

ruling of the” trial court. This assertion could only refer to the trial court’s rendition of judgment

at the January 31 hearing. The trial court’s comments at the May 3 hearing on the motion for

clarification also indicate that that was the trial court’s understanding.6

Because Father did not bring forward the reporter’s record from the January 31 hearing

for inclusion in the appellate record, we must presume that it was sufficient to support the

6 The trial court observed:

I analyzed it completely differently. I was focused on whether school was in session. So if school’s in session, whether school is not in session, like, school’s not in session when you’re out for summer or out for Christmas Holiday, you know, like, on a school break. So I envision when school is in session, he would pick up the child[ren] and return the child[ren] to the mom. When the school is not in session, like during the summer, she would come pick up the child[ren]. 8 clarification order. See id. As a result, we may presume that the Order in Suit to Modify did not

correctly state the trial court’s rendition on January 31 regarding where the exchange of the

children should take place at the end of Father’s period of possession on Tuesdays. Thus, the

error was clerical and could be corrected by a clarification order without effecting a substantive

change. See In re V.M.P., 185 S.W.3d at 534; Rogers, 271 S.W.3d at 376; Dickens, 957 S.W.2d

at 659. We overrule this issue.

B. The Order in Suit to Modify Was Not Enforceable by Contempt

As noted earlier, the Texas Family Code authorizes a trial court to clarify an order it

rendered in a family law proceeding “if the court finds . . . that the order is not specific enough to

be enforced by contempt.” TEX. FAM. CODE ANN. § 157.421(a). To be enforceable by contempt,

“the decree must spell out the details of compliance in clear, specific and unambiguous terms so

that such person will readily know exactly what duties or obligations are imposed upon him.”

In re J.J.R.S., 627 S.W.3d at 223 (quoting Ex parte Slavin, 412 S.W.2d at 44). Father contends

that the clarification order was improper because the Order in Suit to Modify was unambiguous

and enforceable by contempt.

“We construe orders under the same rules of interpretation as those applied to other

written instruments.” Mason-Gibson, Inc. v. Sloan Valve Co., No. 06-21-00108-CV, 2022 WL

1434113, at *4 (Tex. App.—Texarkana May 6, 2022, pet. dism’d) (mem. op.) (quoting Payless

Cashways, Inc. v. Hill, 139 S.W.3d 793, 795 (Tex. App.—Dallas 2004, no pet.)). When we

analyze a trial court’s order, we “construe[] [it] as a whole to harmonize and give effect to the

entire decree.” Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003) (citing Constance v.

9 Constance, 544 S.W.2d 659, 660 (Tex. 1976)). We give undefined terms their “common,

ordinary meaning” and “look first to dictionary definitions.” Anadarko Petroleum Corp. v.

Hous. Cas. Co., 573 S.W.3d 187, 192 (Tex. 2019).

At the May 3 hearing, the parties argued over the meaning of “if school is (or is not) in

session at the time of exchange” in the Exchange of Children Clause. Mother argued whether

“school is in session” referred to the broader meaning of “session,” i.e., “the period during the

year . . . in which a school conducts classes.” Session, MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY (11th ed. 2003). Father argued that the term referred to the narrower meaning of

“session,” i.e., “the period during the . . . day in which a school conducts classes.”7 Id. Both of

these are within the common, ordinary meaning of “session.”

Further, there is support in the language used in other clauses of the order that support

both parties’ arguments. In clauses that address the effect of holidays on Father’s period of

possession, the order provides for an extension of his period of possession when a “holiday . . .

falls on a Friday [or Monday] during the summer months when school is not in session.” Those

clauses lend support to Mother’s argument that “school is in session” is used in its broader

meaning. At the same time, the order also uses “during the regular school term” in several

clauses. That term appears to be synonymous with the broader meaning of “session” and would

support an argument that it limits the meaning of “school is in session” in the order to its

narrower meaning.

None of Father’s arguments on appeal address the meaning of “session” as used in the Exchange of Children 7

Clause and as applied to Father’s Tuesday period of possession, which were the issues in dispute in the trial court. As a result, his arguments on appeal are inapposite. 10 We find that both Mother’s and Father’s interpretations of “school is in session” are

reasonable since both interpretations are supported by the common, ordinary meaning of

“session” and by the usage of the phrase and similar phrases in other clauses of the order. As a

result, there is not a clear meaning of “school is in session” as used in the Exchange of Children

Clause.8 Under that clause, the parties’ interpretations impose contradictory obligations on the

parties in relation to the exchange of the children at the end of Father’s Tuesday period of

possession.

Under Mother’s interpretation, school is in session on all the days during those periods of

the year the school holds classes. This means that for Father’s Tuesday periods of possession,

which only occur during “the regular school term,” school is in session. As a result, the first

sentence of the Exchange of Children Clause would apply at the end of Father’s period of

possession: “the party entitled to possession [(Mother)] shall pick up the child[ren] from

school.” To be in compliance with the order, Father would be required to deliver the children to

Mother at their school at the end of his Tuesday period of possession.

Conversely, under Father’s interpretation, school is in session only until classes are

dismissed on any given day that the school has classes. This means that, for Father’s Tuesday

periods of possession, school is not in session at the end of his possession period. As a result, the

second sentence of the Exchange of Children Clause would apply at the end of Father’s period of

possession: “the party out of possession [(Mother)] shall pick up the child[ren] at the residence

8 We do not hold that the use of “school is in session” in a trial court’s order will be unclear in all cases. In many orders, the meaning of the term will be readily apparent by the consistency of its use throughout the order, and the non-use of similar terms that may bring confusion. In such cases, if a party asserted a meaning that was inconsistent with the term’s use throughout the order, the party’s interpretation would not be reasonable, even if that interpretation was a possible meaning as defined by a dictionary. 11 of the party in possession [(Father)].” To be in compliance with the order, Father would be

required to deliver the children to Mother at his residence at the end of his Tuesday period of

Because both interpretations are reasonable but produce contradictory obligations on

Father at the end of his Tuesday period of possession, we find that the Order in Suit to Modify

did not meet the requirement that it “spell out the details of compliance in clear, specific and

unambiguous terms so that [Father would] readily know exactly what duties or obligations

[were] imposed upon him.” In re J.J.R.S., 627 S.W.3d at 223 (quoting Ex parte Slavin, 412

S.W.2d at 44). As a result, the order was “not specific enough to be enforced by contempt,” and

the trial court was authorized to enter a clarification order. TEX. FAM. CODE ANN. § 157.421(a).

Therefore, we find that the trial court did not abuse its discretion, and we overrule Father’s

second issue.

IV. Disposition

For the reasons stated, we affirm the trial court’s clarification order.9

Jeff Rambin Justice

Date Submitted: May 1, 2024 Date Decided: May 20, 2024

9 We likewise deny Father’s motion to stay the enforcement of the clarification order. 12