In re L.W.G.

1

IN THE INTEREST OF L.W.G., A MINOR CHILD

No. 05-22-00449-CV

Court of Appeals of Texas, Fifth District, Dallas

June 30, 2023

On Appeal from the 256th Judicial District Court Dallas County Texas Trial Court Cause No. DF-19-03769-Z

Before Justices Nowell, Goldstein, and Breedlove

MEMORANDUM OPINION

ERIN A. NOWELL, JUSTICE

Father and Mother are the parents of a child, "L.W. Doe Roe."^[1] Doe is Father's last name, and Roe is Mother's. Mother appeals from the family court's February 10, 2022 Order Clarifying Name of Child. In three issues, Mother argues the February 2022 Order erroneously changed the child's name and the family court's award of attorney's fees is not supported by sufficient evidence. We affirm in part and reverse in part.

A. Factual Background

In April 2019, the family court judge signed an order stating in part: "IT IS ORDERED that the child formerly known as [L.W. Doe] shall hereinafter be named [L.W. Doe Roe]" and, further "IT IS ORDERED that the vital statistics unit shall amend the birth record of the child formerly known as [L.W. Doe] and change the child's name as specified above." Mother and Father approved and consented to the order as to both form and substance.

In November 2020, Mother filed a petition to modify the parent-child relationship, and Father filed a counter-petition to modify. Among other things, Father requested the family court clarify the child's name. Father alleged the April 2019 Order was not sufficiently specific to be enforced by contempt. He requested "the Court construe and clarify the terms of its prior order to make specific that the name of the child and the amendment of the child's birth certificate reflect the following name [L.W. Doe-Roe]." Alternatively, if the Court did not clarify the child's name, then Father requested the child's name be changed to L.W. Doe-Roe by adding a hyphen between Doe and Roe.

In October 2021, Mother and Father entered into a partial mediated settlement agreement. The agreement states the parties settled all disputed claims except the "issue of the name change as addressed in Exhibit A will be tried at the current trial date." Exhibit A states in part: "Father's requested relief to clarify the name change or in the alternative change the child's surname to [Doe-Roe] shall be reserved for final trial." A bench trial was held in November 2021.

L.W. was six years old at the time of trial. Until April 2019, when the child was almost four years old, the child's last name was Doe. Mother amended the child's birth certificate in 2020, and the amended birth certificate shows the child's first name is L., his middle names are W. and Doe, and his last name is Roe. Mother provided a copy of the amended birth certificate to Father in the summer of 2020. The child has attended school with the last name Roe.

Father testified he would not have agreed to amend the child's birth certificate to make Doe a middle name; he believed the April 2019 Order provided for the child to have both parents' last names, and he did not believe it was in the child's best interest not to have his last name. Because the child does not share his last name, Father has encountered difficulties such as picking the child up at church and obtaining information from school and doctors.

Mother testified the parents agreed Doe would be a middle name and Roe would be the last name, and she believed the April 2019 Order specifically provided for the names as such. Mother wanted the child to have the name Roe so he would be part of a cohesive family unit with her because her last name is Roe and she has another child with the last name Roe. Mother believes the child favors the last name Roe, and she testified the child becomes upset and cries when Father tells him that Roe is not the child's last name, which happens frequently. When asked whether she has filled out any documents that do not include Doe as part of the child's name, Mother testified she had not, and she stated she provided Father's contact information to the child's school.

Ellen Hutton, a licensed professional counselor, met with the child about six times, including shortly before trial. The child expressed he did not want to participate in visitation with Father because his father was "rude"; the child would hide when it was time for visitation with Father. The child reported his father would tell him that his last name was Doe and not Roe. Hutton testified the child "definitely identifies" as L. Roe.

On February 10, 2022, the family court entered its Order Clarifying Name of Child, which states: "IT IS ORDERED and the Court CLARIFIES that the last name of this child, the subject of this suit, is [Doe Roe]." The family court ordered Mother to amend the child's birth certificate to reflect the clarified name of Doe Roe and send proof of the amended birth certificate to Father. Further, the Court ordered that both parties include both last names on all documents involving the child. The order also awarded $1,465.00 in attorney's fees to Father's attorney.

B. Child's Name

In her first issue, Mother argues the February 2022 Order is erroneous because (1) the April 2019 Order was not ambiguous; (2) any error was not clerical; and (3) it added new requirements not included in the April 2019 Order. In her second issue, Mother asserts (1) the February 2022 Order grants Father relief that is not supported by his pleadings; and (2) Father's evidence is insufficient to show the name change is in the child's best interest.

A family court may clarify an order it rendered if the court finds the order is not specific enough to be enforced by contempt. See TEX. FAM. CODE § 157.421(a). To be enforceable by contempt, an order must be “clear, specific, and unambiguous.” In re J.J.R.S., 627 S.W.3d 211, 223 (Tex. 2021); see also In re D.N.P., No. 05-19-01083-CV, 2021 WL 790896, at *3 (Tex. App.-Dallas Mar. 2, 2021, no pet.) (mem. op.) (“The only basis for clarifying a prior decree is when a provision is ambiguous.”). To be unambiguous, the order must not “require inferences or conclusions about which reasonable persons might differ.” In re Luther, 620 S.W.3d 715, 722 (Tex. 2021) (cleaned up).

A substantive change made through a clarification order is unenforceable. Tex. Fam. Code § 157.423(b); see also In re R.F.G., 282 S.W.3d 722, 725 (Tex. App.-Dallas 2009, no pet.). The family code does not define "substantive change"; however, courts of appeals have looked to case law addressing impermissible substantive changes in judgments nunc pro tunc and compared those to permissible corrections of clerical errors for guidance. In re R.Y.C., No. 05-21-00837-CV, 2022 WL 3054101, at *2 (Tex. App.-Dallas Aug. 3, 2022, no pet.) (mem. op.) (citing In re D.N.P., 2021 WL 790896, at *3; In re Marriage of Ward, 137 S.W.3d 910, 913 n.4, 913-16 (Tex. App.-Texarkana 2004, no pet.); Dickens v. Willis, 957 S.W.2d 657, 659 (Tex. App.-Austin 1997, no pet.)).

A clarification order is analogous to a judgment nunc pro tunc in that it cannot substantively change a final order. To be clerical in nature, the error must be one that is not the result of judicial reasoning, evidence, or determination. Correction of a clerical error does not effect a substantive change in the court's order. On the other hand, judicial error results from judicial reasoning or determination. Substantive change results from correction of a judicial error.

In re D.N.P., 2021 WL 790896, at *3 (quoting In re V.M.P., 185 S.W.3d 531, 534 (Tex. App.-Texarkana 2006, no pet.) (citations omitted)); see also Gulley v. Gulley, No. 01-18-00234-CV, 2019 WL 3121854, at *3 (Tex. App.-Houston [1st Dist.] July 16, 2019, no pet.) (mem. op.). The determination of whether an alleged error is "clerical or judicial is a question of law." See In re D.N.P., 2021 WL 790896, at *3.

The April 2019 Order states: "IT IS ORDERED that the child formerly known as [L.W. Doe] shall hereinafter be named [L.W. Doe Roe]." The order does not state which name or names became the child's last name. Before entry of the April 2019 Order and for the first four years of the child's life, the child's last name was Doe. Rather than indicating that Doe would no longer be a last name, the April 2019 Order added an additional name, Roe, without specifying whether Doe would remain a last name or become a middle name. The text of the order does not support Mother's assertion that the order specifically changed the child's last name from Doe to Roe.

The April 2019 Order does not set forth the child's name in unambiguous terms. See In re Janson, 614 S.W.3d 724, 728 (Tex. 2020). Rather, determining the child's last name after entry of the April 2019 Order required inferences or conclusions about which reasonable persons might differ. See In re Luther, 620 S.W.3d at 722.

It is "not beyond the realm of reason" that Mother and Father intended to agree that Doe Roe was the child's last name or that Roe was the child's last name. See In re Janson, 614 S.W.3d at 728. To find a party in contempt of the order, a court would necessarily have had to infer that Doe either remained a last name or became a middle name. See id. Because the April 2019 Order failed to clearly establish the child's last name and his name remained ambiguous, the family court had authority to clarify its order. The court did not, however, have authority to make a substantive change to the child's name in this proceeding.

The February 2022 Order did not make a substantive change to the child's name. The April 2019 Order states the child's name would be L.W. Doe Roe, and the child's name remained L.W. Doe Roe after entry of the February 2022 Order. The February 2022 Order clarifies the child's last name is Doe Roe; the order does not make a change to...