In the Interest of V.M.P., J.R.P. and B.L.P., Children

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00128-CV

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IN THE INTEREST OF V. M. P., J. R. P. AND B. L. P., CHILDREN

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On Appeal from the 115th Judicial District Court

Upshur County, Texas

Trial Court No. 451-92

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Chief Justice Morriss

O P I N I O N  

            By the time the trial court began issuing orders in this ongoing child support dispute between ex-spouses Virginia Denise Magouirk and Douglas Edward Pace, there were five motions pending regarding Douglas' child support obligations—originally ordered in 1993—including Virginia's motions to modify, enforce, and clarify, as well as Douglas' motions to modify and clarify. Springing from those five motions, a collection of relevant court orders, and Virginia's responses to those orders, are revealed by the record. The collection is detailed in the following list:

            August 18, 2004         Trial court signs order denying Virginia's motion to enforce.

            September 22, 2004    Virginia files a motion for new trial.

            October 13, 2004        Two additional orders are signed.

(A) The trial court signs "Order Modifying Child Support Obligations." This order directs Douglas to pay weekly child support of $211.46 (as long as there were three minor children, none of whom had graduated from high school, become married, or otherwise become emancipated), $176.22 (when two children remained), and $140.97 (when one child remained).

(B) The trial court also signs an order titled "Amended Order Denying [Virginia's] Motion for Enforcement of Child Support and Order of Clarification."

            November 12, 2004    Virginia files a notice of appeal.

            The end result of the trial court's orders is the denial of Virginia's motion to enforce Douglas' child support obligation and the modification of his obligation. On appeal, Virginia attacks various aspects of the trial court's denial of her motion to enforce and the fact that the trial court "clarified" the original child support order. We affirm because (1) Virginia did not timely appeal the denial of her motion to enforce, and (2) the trial court was empowered to modify Douglas' child support obligation.

(1)       Virginia Did Not Timely Appeal the Denial of Her Motion to Enforce

            Before we address the issues Virginia presents, we must first determine the proper scope of our appellate jurisdiction over those issues. See, e.g., Am. Broadcasting Cos. v. Gill, 6 S.W.3d 19, 26 (Tex. App.—San Antonio 1999, pet. denied), overruled in part on other grounds by Turner v. KTRK TV, Inc., 38 S.W.3d 103 (Tex. 2000). On August 18, 2004, the trial court signed an order denying Virginia's motion for enforcement and held the original divorce decree was too vague and ambiguous to be enforced. Virginia's motion for new trial—filed more than thirty days after the trial court signed the order denying enforcement—was untimely. See Tex. R. Civ. P. 329(a) (motion for new trial due within thirty days from date appealable order is signed). Therefore, Virginia's notice of appeal, filed November 12, 2004, was submitted too late to properly appeal the August 18 order denying enforcement. See Tex. R. App. P. 26.1 (notice of appeal due within thirty days of appealable order if motion for new trial not timely filed). As Virginia's first through fifth issues all relate to the propriety of the August 18 order, we must overrule each for want of jurisdiction.

(2)       The Trial Court Was Empowered to Modify Douglas' Child Support Obligation

            In her final point of error, Virginia contends the trial court's October 13 "clarification" order amounts to an improper substantive change. While we agree that the "clarification" was, indeed, a modification, we conclude the trial court had authority to modify the child support obligation, and thus committed no error in doing so.

            Article 157.421 of the Texas Family Code permits a trial court to "clarify" a previous child support order by "rendering an order that is specific enough to be enforced by contempt." Tex. Fam. Code Ann. § 157.421 (Vernon 2002). However, "[a] court may not change the substantive provisions of an order to be clarified . . . ." Tex. Fam. Code Ann. § 157.423 (Vernon 2002) (emphasis added). A substantive change made through a clarification order is unenforceable. Id.

            "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 (Tex. App.—Texarkana 2004, no pet.) (citing Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986)). "To be clerical in nature, the error must be one that is not the result of judicial reasoning, evidence, or determination." Ward, 137 S.W.3d at 913 (citing Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986)). "Correction of a clerical error does not effect a substantive change in the court's order." Ward, 137 S.W.3d at 913 (citing Dickens v. Willis, 957 S.W.2d 657, 659 (Tex. App.—Austin 1997, no pet.)). "On the other hand, judicial error results from judicial reasoning or determination." Ward, 137 S.W.3d at 913 (citing Dickens, 957 S.W.2d at 659). "Substantive change results from correction of a judicial error." Id.

            In the instant case, the 1993 decree ordered Douglas to pay child support of "$97.50 per week, or 30% of his net weekly income (as defined by the Family Code), whichever is more . . . ." The trial court's "clarification" order ordered Douglas to pay only $97.50 per week, without providing for potential percentage increase that was clearly envisioned by the 1993 order. This is clearly a substantive change, which our Code expressly forbids—unless there is authority to modify.

            And, in this case, the trial court did have authority (pursuant to the parties' motions requesting modification) and jurisdiction (pursuant to Tex. Fam. Code Ann. § 156.401 (Vernon Supp. 2005)) to modify Douglas' child support obligation. Thus, to the extent that the trial court's "clarification" order of October 13, 2004, amounted to a substantive modification, such change would certainly have been permissible if it were rendered as part of a "modification" order. We, therefore, conclude the trial court, while mistaken in titling its order, did not err in entering the order. Accordingly, we overrule Virginia's final point of error.

            There being no other issues presented, and for the reasons stated, we affirm the trial court's judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          October 5, 2005

Date Decided:             January 31, 2006