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.




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      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

Lundy, 973 S.W.2d at 688–89.

      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.



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