Carl Ross v. Shanney Velwood, F/K/A Shanney v. Ross ( 2004 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00351-CV
Carl Ross, Appellant
v.
Shanney Velwood, f/k/a Shanney V. Ross, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 19841, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING
MEMORANDUM OPINION
Carl Ross (“Ross”) and Shanney Velwood (“Velwood”) were divorced in August
2002. Subsequently, the trial court rendered a clarification order of the final decree of divorce. Ross
appeals from this clarification order by two issues, contending that (1) the trial court abused its
discretion in designating attorney’s fees as child support, enforceable by contempt; and (2) the trial
court erred in awarding post-judgment interest for the first time in the clarification order. We will
modify the trial court’s order and affirm it as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Ross and Velwood were married on October 31, 1985; they had two children during
the marriage. On January 7, 2000, Velwood filed a petition for divorce from Ross, which was
granted by the trial court in a decree of divorce on August 20, 2002. See Ross v. Ross, No. 03-02-
00772-CV, 2004 Tex. App. LEXIS 3395 (Tex. App.—Austin Apr. 15, 2004, no pet.) (memorandum
opinion). In that decree, the trial court found that Velwood had “incurred $31,500 as attorney’s fees,
which were necessary as support for [Velwood] and the children the subject of this suit.” It
thereafter awarded her divorce attorney “a judgment of $31,500 against Carl E. Ross as attorney’s
fees and expenses.”
During a subsequent proceeding on a motion to enforce the judgment, the trial court
expressed that the original order, drawn up by the attorneys, was not entirely clear or sufficient, and
was not specific enough to be enforced by contempt. Because of this, the trial court issued a
clarification order. In this order, the trial court stated that fifty percent of the $31,500 attorney’s fees
award was necessary as support for Velwood and the other fifty percent was necessary for the
support of the children. The court therefore ordered that Velwood be “awarded a judgment in the
amount of $31,500 with simple interest at the rate of ten (10) percent per annum against Carl E. Ross
as attorney’s fees and expenses but enforceable by Gene Stratton, attorney for” Velwood. A
schedule for the payment of this award was also ordered.
DISCUSSION
Attorney’s Fees as Child Support
In his first issue, Ross contends that the trial court abused its discretion by entering
a clarification order that designated half of the attorney’s fees as child support, thereby making the
award enforceable by contempt.
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Under the family code, the trial court may order reasonable attorney’s fees as costs
in a suit affecting the parent-child relationship; these fees may be enforced “by any means available
for the enforcement of a judgment for debt.” Tex. Fam. Code Ann. § 106.002(a) (West Supp. 2004).
An award of attorney’s fees in such a case is within the sound discretion of the trial court. Bruni v.
Bruni, 924 S.W.2d 366, 368 (Tex. 1996). We will not reverse the trial court’s judgment absent a
clear showing of abuse of discretion. McCord v. Watts, 777 S.W.2d 809, 813 (Tex. App.—Austin
1989, no writ). A trial court abuses its discretion when it acts in an unreasonable and arbitrary
manner, or without reference to any guiding rules or principles. Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Generally, an attorney’s fees award cannot be enforced by contempt because of the
constitutional prohibition against imprisonment for debt. See Tex. Const. art. I, § 18; Wallace v.
Briggs, 348 S.W.2d 523, 525-26 (Tex. 1961); In re Moers, 104 S.W.3d 609, 611 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). Attorney’s fees awarded in a proceeding to enforce a child
support order, however, can be enforced by contempt. Tex. Fam. Code Ann. § 157.167(c) (West
Supp. 2004); Ex parte Helms, 259 S.W.2d 184, 188 (Tex. 1953); Moers, 104 S.W.3d at 611. Unless
the fees are incurred in enforcing a child support order, attorney’s fees are to be awarded as costs that
are enforceable as debt, and therefore not enforceable by contempt. Tex. Fam. Code Ann. § 106.002;
Moers, 104 S.W.3d at 612.
The trial court’s clarification order states that of the $31,500 attorney’s fees award,
“fifty percent were necessary for the support of the children.” Although the trial court’s order does
not specifically include the terms “child support” in characterizing half of the attorney’s fees award,
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the order states that the reason for the clarification is that certain terms of the prior order of the court
“are not specific enough to be enforced by contempt.”1 The attorney’s fees, however, were awarded
following a divorce proceeding, which included a suit affecting the parent-child relationship; they
were not incurred in a child support enforcement proceeding. Thus, the fees could not be
characterized as child support and could not be enforced by contempt. We therefore hold that the
trial court erred in designating half of the attorney’s fees as child support. Accordingly, we will
modify the order by deleting any characterization of the attorney’s fees award as child support or “as
necessary for the support of the children,” so as to eliminate any confusion about the nature of the
attorney’s fees.
Post-Judgment Interest
In his second issue, Ross maintains that the trial court erred in awarding post-
judgment interest for the first time in the clarification order. Ross argues that the addition of a ten
percent annual interest rate to the $31,500 attorney’s fee award represents a substantive change in
the decree of divorce, and therefore is improper. For support, he directs us to section 157.423 of the
family code, which prohibits a court from substantively changing the provisions of an earlier order
with a clarification order. Tex. Fam. Code Ann. § 157.423(a) (West 2002).
After the trial court loses its jurisdiction over a judgment, it can correct only clerical
errors in the judgment; it cannot substantively correct a judicial error made in rendering a final
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The trial court explained its ruling as follows: “Clarification is also necessary regarding
the portion of that [attorney’s fee award] for child support and the portion of that for support of the
wife. Fifty percent of that is child support.”
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judgment. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968). A change is considered substantive
if the judgment is being corrected because of an error that resulted from judicial reasoning and
determination (“judicial error”). Dickens v. Willis, 957 S.W.2d 657, 659 (Tex. App.—Austin 1997,
no pet.); see also Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986) (“A judicial error is an error
which occurs in the rendering as opposed to the entering of a judgment.”). When an error results
from inaccurately recording the decision of the court, the error is “clerical.” Dickens, 957 S.W.2d
at 659.
Whether any error in the original decree was clerical or judicial is a question of law.
Finlay, 435 S.W.2d at 138; Dickens, 957 S.W.2d at 659. Whether the trial court previously
pronounced judgment orally and the terms of that judgment, however, are questions of fact.
Escobar, 711 S.W.2d at 232. The issue of whether the error was clerical or judicial becomes a
question of law only after the trial court factually determines whether it previously rendered
judgment and the contents of that judgment. Id. The trial court can only correct or clarify a final
written judgment if it incorrectly reflects the judgment that the trial court actually rendered. Id. at
231-32. In other words, if the trial court rendered an incorrect judgment that was accurately
recorded, it cannot alter the written judgment that precisely reflects the incorrect rendition. Id. at
232. Thus, 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. Id. at 231.
We review a trial court’s factual determination of the original judgment’s contents
for legal and factual sufficiency of the evidence. Id. at 232; Dickens, 957 S.W.2d at 659. To review
whether the evidence was legally sufficient, we consider only the evidence that tends to support the
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trial court’s finding. Sterner v. Marathon Oil Co., 767 SW.2d 686, 690 (Tex. 1989); Dickens, 957
S.W.2d at 659. If no such evidence exists, we consider all evidence on record to determine whether
the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; Dickens, 957
S.W.2d at 659. In reviewing the factual sufficiency of the evidence, we consider and weigh all of
the evidence and set aside the trial court’s finding only if it is so contrary to the evidence as to be
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Dickens, 957 S.W.2d at
659.
In this case, we need not reach the issue of whether any error was judicial or clerical
because a review of the original divorce decree reveals that no change was made with regard to the
post-judgment interest. The original divorce decree states that Velwood is awarded a “net money
judgment” in the amount of $120,201, “with post-judgment interest at 10% percent per year
compounded annually from date of signing of this Final Decree of Divorce.” The net money
judgment, according to the divorce decree, is based on, among other things, attorney’s fees in the
amount of $31,500. Thus, it appears that the original divorce decree already included post-judgment
interest at the rate of ten percent for the attorney’s fees. The clarification order only reiterates what
was already in the original divorce decree; thus, the trial court made no change to the post-judgment
interest portion of the decree in its clarification order. We overrule Ross’s second issue.
CONCLUSION
We conclude that the trial court abused its discretion in characterizing any portion of
the attorney’s fees as child support and modify the trial court’s order to delete all characterizations
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of attorney’s fees as child support. We further hold that the original divorce decree already ordered
post-judgment interest on the attorney’s fees, and the clarification order did not alter that portion of
the decree. Therefore, we affirm the clarification order as modified.
David Puryear, Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Modified and, as Modified, Affirmed
Filed: July 29, 2004
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