Mary Darden v. Robert Ferguson Barkley ( 1992 )

Darden v. Barkley

IN THE

TENTH COURT OF APPEALS

No. 10-91-135-CV

     MARY DARDEN,

                                                                                              Appellant

     v.

     ROBERT FERGUSON BARKLEY,

                                                                                              Appellee

From the 19th District Court

McLennan County, Texas

Trial Court # 86-2439-1

                                                                                                    

O P I N I O N

                                                                                                    

            Mary Darden (formerly Mary Barkley) filed a motion to clarify her ex-husband's obligation under this provision of their divorce decree: "As part of his child support obligation, [Robert Barkley] agrees to assume and is therefore ORDERED to pay all costs and expenses for private school education for the children." Following a hearing, the court purportedly "clarified" the provision by ordering Barkley to pay only one-half of the costs of the children's private education. Darden contends that the court violated section 11.22 of the Family Code when it made a substantive change in the provision under the guise of clarifying it. We reverse and remand.

      If the court finds that an order, decree, or judgment is not specific enough to be enforced by contempt, it may clarify its terms to make it enforceable. Tex. Family Code Ann. § 11.22(a), (b) (Vernon Supp. 1992). But, in doing so, it "may not change the substantive provisions of the order, decree, or judgment that it clarifies under this section, and such a change is not enforceable." Id. § 11.22(c).

      Despite the explicit prohibition against using a clarification order to make substantive changes in the original decree, Barkley argues that the court could modify the provision under the admonition in section 14.07 that "[t]he best interest of the child shall always be the primary consideration of the court in determining questions of . . . support of . . . the child." See id. § 14.07(a). To accept that argument would make the prohibition meaningless. We must enforce the legislative intent expressed in the plain language of the prohibition: The court cannot make a substantive change in a prior decree by a clarification order, and any attempt to do so shall be unenforceable. See id. § 11.22(c); Lastor v. City of Hearne, 810 S.W.2d 742, 743 (Tex. App.—Waco 1991, writ denied).

      By reducing Barkley's obligation by one-half—i.e., from paying "all costs" of private education to paying only one-half of the costs—the court made a substantive change in the provision it was supposedly clarifying. The order is unenforceable. See id. We sustain Darden's third point and do not reach her remaining points.

      We reverse the order and remand the cause for a new trial.

 

                                                                                     BOB L. THOMAS

                                                                                     Chief Justice

Before Chief Justice Thomas,

      Justice Cummings,

      and Justice Vance

Reversed and remanded

Opinion delivered and filed April 15, 1992

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an style='font-family:Palatino'>The test for probable cause for a warrantless arrest is whether, at that moment, the facts and circumstances within the officer’s knowledge and of which the officer had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the person had committed an offense.  Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005); State v. Crisp, 74 S.W.3d 474, 483 (Tex. App.—Waco 2002, no pet.).

The trial court made no findings; it could have implicitly found that Dixon’s intent was to place Moore in fear of imminent serious bodily injury.  By adding that the jogger had saved Moore’s life, Dixon’s threat was not purely conditional because it suggested immediate consequences sufficient to create fear of imminent serious bodily injury.  See Devine v. State, 786 S.W.2d 268, 270-71 (Tex. Crim. App. 1989).  The arresting officers could have reasonably believed that it was more likely than not Dixon’s intent to communicate to Moore that had the jogger not been there, he would have killed her for lying to him.  We agree with the State that under the circumstances of this case, Officers Frost and Scaramucci had probable cause to arrest Dixon without a warrant.  The officers had reasonably trustworthy information from their investigation that Dixon had made a terroristic threat involving family violence.

            Having found the warrantless arrest to be legal, we need not address Dixon’s third argument, which is that consent following an illegal arrest requires that consent was freely and voluntarily given and was not tainted by the illegal police conduct.  See Brick v. State, 738 S.W.2d 676, 677 (Tex. Crim. App. 1987).

            We overrule Dixon’s sole issue and affirm the trial court’s judgment.

 

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed April 9, 2008

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