### 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

M E M O R A N D U M O P I N I O N

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 t wo 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 was2

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). I n 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 subjec t 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.3 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. B runi 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. M cCord 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. D owner 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

con stitutional prohibition against imprisonment for debt. S ee Tex. Const. art. I, § 18; Wallace v.

Briggs , 348 S.W.2d 523, 525-26 (Tex. 1961); I n 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,1 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.”

4 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 postjudgment 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 final5

judgment. F inlay v. Jones

, 435 S.W.2d 136, 138 (Tex. 1968). A change is considered substantive

if the judgm ent is being corrected because of an error that resulted from judicial reasoning and

determination (“judicial error”). D ickens 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 a nd the terms of that judgment, however, are questions of fact.

Escobar

, 7 11 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 deter mines whether it previously rendered

judgment and the contents of that judgment. I d. 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. I d. 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. I d. at 231.

We review a trial court’s factual determination of the original judgment’s contents

for legal and factual sufficiency of the evidence. I d. 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 the6

trial court’s finding. S terner 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. S terner

, 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. C ain 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

compou nded annually from date of signing of this Final Decree of Divorce.” The net money

judgment, according to t he 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 characterizations7

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