

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
ALAN LESLIE WILLIAMS,
 
                                   
  Appellant,
 
v.
 
JO-ANN WILLIAMS,
 
                                    Appellee.
  
 


 
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                  No. 08-11-00212-CV
 
                         Appeal from
 
393rd District
  Court
 
of Denton County,
  Texas
 
(TC #
  2009-61589-393)




 
 


 


 



                                                                  O
P I N I O N
 
            This is an appeal from a clarification
order arising from a suit affecting the parent-child relationship.  For the reasons that follow, we reverse and
render.
FACTUAL SUMMARY
            Alan Williams filed a petition for
divorce from Jo-Ann Williams.  The
parties entered into a mediated settlement agreement which was incorporated
into the final decree.  The trial court
signed the decree on May 2, 2011.  Alan
and Jo-Ann were named joint managing conservators of their son, Matthew, and the
decree contains a Standard Possession Order. 
It provides that if Alan resides 100 miles or less from the primary
residence of the child, Alan has the right to possession on certain weekends
each month and on Thursdays from 6:00 p.m. to 8:00 p.m. during the school year
and from 5:00 p.m. to 8:00 p.m. if school is not in session.  The decree includes the following provisions
related to extended summer possession by Alan:
With
Written Notice by April 1--If ALAN L. WILLIAMS gives JO-ANN WILLIAMS written
notice by April 1 of a year specifying an extended period or periods of summer
possession for that year, with the exception of the summer of 2011 as set forth
below, ALAN L. WILLIAMS shall have possession of the child for thirty days
beginning no earlier than the day after the child’s school is dismissed for the
summer vacation and ending no later than seven days before school resumes at
the end of the summer vacation in that year, to be exercised in no more than
two separate periods of at least seven consecutive days each, as specified in
the written notice.  These periods of
possession shall begin and end at 6:00 p.m.
 
            Without Written Notice by April 1--If
ALAN L. WILLIAMS does not give JO-ANN WILLIAMS written notice by April 1 of a
year specifying an extended period or periods of summer possession for that
year, ALAN L. WILLIAMS shall have possession of the child for thirty
consecutive days in that year beginning at 6:00 p.m. on July 1 and ending at
6:00 p.m. on July 31.  
Summer
of 2011
            IT IS ORDERED for the summer of 2011
that ALAN L. WILLIAMS’ extended summer possession of the child shall be
exercised in two increments, with the first such increment to occur beginning
Friday June 17, 2011 at 6:00 p.m. and ending on Friday July 1, 2011 at 6:00
p.m. and the second increment to occur during the month of July.  Designation of the July increment will be
made by June 1, 2011.
 
The decree
also specifies that Jo-Ann has a right to summer weekend access during Alan’s
extended summer possession as follows:
Summer Weekend
Possession by JO-ANN WILLIAMS--If JO-ANN WILLIAMS gives ALAN L. WILLIAMS
written notice by April 15 of a year, JO-ANN WILLIAMS shall have possession of
the child on any one weekend beginning at 6:00 p.m. on Friday and ending at
6:00 p.m. on the following Sunday during any one period of the extended summer
possession by ALAN L. WILLIAMS in that year, provided that JO-ANN WILLIAMS picks up the child from ALAN L. WILLIAMS
and returns the child to that same place and that the weekend so designated
does not interfere with Father’s Day Weekend. 
[Emphasis added].
 
Despite the
crystal clarity of this phrase, a dispute arose eight days after entry of
judgment regarding Jo-Ann’s right to summer weekend access during Alan’s
extended summer possession in 2011.  It
is undisputed that Alan had planned a trip to Yellowstone with the child and
family friends during the July increment of his extended summer
possession.  Jo-Ann requested her summer
weekend possession and the parties disagreed where the exchange of the child would
take place for that weekend and in summers thereafter.  Alan claimed that Jo-Ann should pick Matthew
up in Yellowstone while Jo-Ann countered that the exchange had to occur at Matthew’s
residence.  Consequently, eight days
after the trial court signed the decree, Jo-Ann filed a motion to clarify the
trial court’s order for possession or access. 
Although Jo-Ann did not cite Section 157.421 of the Texas Family Code as
the basis for her motion to clarify, she stated the standard for clarification
found in that statute by alleging that certain “portions of the order may not
be specific enough to be enforceable by contempt . . .” and she requested that
the trial court construe and clarify the terms of its prior order to make the
provisions more specific.  See Tex.Fam.Code
Ann. § 157.421 (West 2008).  She
also sought attorney’s fees.  After a
hearing, the trial court entered an order finding that the decree of divorce
should be clarified, ordering Alan to comply with the terms of the clarifying
order, and providing that the clarifying order may be enforced by
contempt.  The order contained the
following provisions:
1.     
Jo-Ann Williams is entitled to possession of the
child Matthew Williams (the ‘Child’) on the following dates and times:  July 1, 2011 at 6:00 p.m. until July 3, 2011
at 11:00 p.m.  The parties will meet at
11:00 p.m. to exchange the child, July 3, 2011, at Cinemark Movie parking
lot, 5655 Frisco Square Blvd, Frisco, Tx.
 
2.     
Alan Williams shall surrender the Child to
Jo-Ann Williams at the beginning of the period of possession referred to above
at the following location:  Prairie House
Restaurant, 10001 Highway 380, Cross Roads, Tx.
 
3.     
Jo-Ann Williams shall return the child to Alan
Williams at the end of the period of possession referred to above at the
following location:  Prairie House Restaurant,
10001 Highway 380, Cross Roads, Tx.
 
4.     
For all future Summer Weekend Possession by
Jo-Ann Williams after 2011, as provided on pages 10 and 11 of the Decree, the
following provisions apply:  For Jo-Ann
Williams’ Summer Weekend Possessions, drop off (at the beginning of her period
of possession) and pick-up (at the end of her period of possession) shall occur
at the Prairie House Restaurant (address above).  
 
Alan concedes
that sections 1 through 3 of the clarification order are moot, but he complains
about section 4 in this appeal.
CLARIFICATION UNDER SECTION 157.421
            Alan raises two issues in his attack
on the clarification order.  In his first
issue, he contends clarification was improper because the decree was
unambiguous.  In the second issue, he
claims that the clarification order made an impermissible substantive change.  Jo-Ann counters with three arguments:  (1) Alan has waived error; (2) the trial
court’s plenary power to modify the divorce decree is not limited by Chapters
156 and 157 of the Family Code; and (3) the trial court’s order is not a
substantive change of the divorce decree.
            The parties entered into a mediated
settlement agreement (MSA) which was incorporated into the final decree of
divorce.  An MSA is binding on the
parties if the agreement (1) provides in a prominently displayed statement that
is in boldfaced type or capital letters or underlined, that the agreement is
not subject to revocation; (2) is signed by each party to the agreement; and
(3) is signed by the party’s attorney.  Tex.Fam.Code Ann. § 153.0071(d)(West 2008).  The MSA here strictly complies with these
requirements.  Subsection (e) specifies
that if an MSA meets the requirements, a party is entitled to judgment.  Tex.Fam.Code Ann. § 153.0071(e). 
Notwithstanding subsections (d) and (e), a court may decline to enter a
judgment if a party was a victim of family violence such that his or her decision-making
ability was impaired and the agreement is not in the best interest of the
child.  The final decree of divorce
specifies that the agreement was in the child’s best interest and no
allegations of family violence have been lodged.  Entry of judgment on the MSA was proper.


 
Standard of Review
This appeal was transferred to us from the Second Court of Appeals in
Fort Worth.  Pursuant to Rule 41.3 of the
Texas Rules of Appellate Procedure, we are to apply the precedent of that
court.  And they have spoken clearly that
the standard of review is de novo:
When an appellate court
concludes that contract language can be given a certain or
definite meaning, then the language is not ambiguous, and
the appellate court is obligated to interpret the contract
as a matter of law.  DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex.1999);
Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
 A contract
is not ambiguous merely because parties to an agreement
have different interpretations of a term or phrase.  DeWitt, 1 S.W.3d at 100; Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994)(op.
on reh’g).  A contract
is ambiguous only if, after the application of established
rules of construction, an agreement is still susceptible to more than one
reasonable meaning.  DeWitt, 1 S.W.3d at 100; Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996).
 
Commercial
Structures and Interiors, Inc. v. Liberty Education Ministries, Inc., 192 S.W.3d 827, 832
(Tex.App.--Fort Worth 2006, no pet.).
Modification During Plenary Power?
We first address Jo-Ann’s contention that the trial court could exercise
its plenary power to modify the decree without reference to the clarification
statutes.  While that is certainly true
in some circumstances, it is absolutely prohibited in cases involving an
MSA.  Pursuant to the Family Code, the
trial court had two options.  It could
accept the agreement and render judgment thereon, or it could decline to render
judgment upon a finding that the agreement was not in the best interest of the
child due to family violence.  The court
could not render judgment and then modify it. 
We reject Jo-Ann’s argument on this basis.
Waiver?
            Next, Jo-Ann contends that Alan’s true
complaint is an affirmative defense of res
judicata.  This argument is misplaced
because Jo-Ann confuses clarification proceedings with suits to modify an order
affecting the parent child relationship. 
An order establishing rights of conservatorship and possession is res judicata of the best interest of the
child.  Those orders may be modified upon
compliance with the modification statutes which require (1) a showing of a
material and substantial change in circumstances; and (2) that modification
would be in the best interest of the child. 
The modification statutes address substantive changes in the court
order.
            Clarification proceedings are by
definition non-substantive.  Section
157.421 of the Family Code, entitled, “Clarifying Nonspecific Order,” provides in
part that:
(a)   
 A court
may clarify an order rendered by the court in a proceeding under this title 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.
 
(b)  
 The court
shall clarify the order by rendering an order that is specific enough to be
enforced by contempt.
 
Tex.Fam.Code Ann. § 157.421.  A court may not change the substantive
provisions of an order to be clarified.  Tex.Fam.Code Ann. § 157.423(a).  Any substantive changes are
unenforceable.  Tex.Fam.Code Ann. § 157.423(b).  Alan had no burden to plead or prove
anything.  Jo-Ann bore the burden to
establish an ambiguity that prevented enforcement by contempt.  We reject her argument on this basis.             
Is the Decree Ambiguous?
This leads us to a discussion of whether the MSA as incorporated in the
decree is vague, ambiguous, or unenforceable by contempt.  Jo-Ann claims that she cannot enforce her summer
weekend access.  Her pleadings provide
insight inasmuch as she sought clarification only as to “what date the exchange
of the child during Jo-Ann William’s Summer Weekend Possession shall occur, and
the location of such exchange.”  The date
is specifically ascertainable from the statutory notice she is to provide
Alan.  Her true complaint is location.  Although she argues in her brief that there
is no requirement for Alan to tell her where he will be, that was not alleged
in her pleadings.  
Jo-Ann attempts to create ambiguity by reciting the terms of the specific
provision addressing extended summer access and then comparing it to the
provision that states:  “Except as otherwise explicitly provided . .
.” Jo-Ann will surrender the child to Alan at her residence and Alan shall
return him there.  [Emphasis added].  We are hard pressed to find ambiguity between
these clauses.
Jo-Ann signed the MSA that incorporated the terms of the Standard
Possession Order.  The decree tracks the
Standard Possession Order verbatim and specifies that the primary custodial
parent “picks up the child from the possessory conservator and returns the child
to that same place.”  Tex.Fam.Code Ann. § 153.312
(b)(3).  There is nothing ambiguous about
the phrase that Jo-Ann must pick up Matthew from Alan and return Matthew to
Alan.  Without question, the trial court
lacked authority to order Alan to bring the child back to North Texas for the
weekend.  By virtue of the MSA, the
decree of divorce, and the Texas Family Code, Jo-Ann must pick up Matthew from
Alan and return Matthew to Alan.  If
Jo-Ann as the custodial parent wants weekend access during Alan’s vacation,
that is her right.  But she is bound by
contract, judgment, and statute to travel to the site of the vacation.  Issues One and Two are sustained.
Stepping back for a moment from the bitterness, anger, and hostility that
so frequently accompany custody litigation, any parent can recognize the
purpose of the summer access statutes. 
Each parent ought to have an extended and uninterrupted period of time
in which to vacation with the child, whether the intent is to visit
grandparents, travel to Yellowstone National Park, soak up the sun on the
beach, or fish in mountain streams.  Such
are the joyous memories of childhood.  
            We reverse the trial court’s order
of clarification and render judgment denying Jo-Ann’s motion to clarify.
 
November 28, 2012, 2012                  _______________________________________________
ANN CRAWFORD
McCLURE, Chief Justice
 
Before McClure, C.J., Rivera, and Antcliff, JJ.
 

