Opinions, April 5, 2016: What is a Substantive Change?

The First District Court of Appeals released two opinions this morning, one published and one memorandum opinion.

The memorandum opinion, Weido v. Weido, No.01-15-00755-CV, concerns a trial court’s changes to a mediated settlement agreement under a motion to clarify.

Brandy and Don Weido divorced when the child at issue was three years old. In the original decree, the parties agreed to send the child to “St. Helen’s Catholic School in Pearland, Texas or any other school agreed to by both parties beginning with preschool.”

When the child was five, the parents agreed to a modified MSA which amended the original decree to grant Don the right to make educational decisions “that enroll the child in a private school or within Pearland ISD.” The parents also agreed the residence of the child would be within Pearland City Limits.

Eventually Don filed a motion for clarification that is the basis of the appeal. Don filed the motion because he was considering sending the child to public school come fall. According to Don’s motion, his house was in the city limits of Pearland but fell within Alvin ISD. He argued two problems existed with the MSA which created ambiguities which he requested the trial court remove. First, he argued that when he signed the MSA, he understood it to allow him to enroll the child in a primary school within the public school district that the child primarily resides, i.e. Alvin ISD. Secondly, he argued that it was not possible for him to send the child to a Pearland ISD school.

The trial court granted Don’s motion because, it found, Don’s performance was impossible as he would have to either move or “lie about about where his kid currently lives.” Brandy’s attorney pointed out that he could continue sending the child to private school. The trial court acknowledged that but found an impossibility of performance as to Pearland ISD and modified the MSA “to read Pearland ISD or Alvin ISD, so that nobody has to move.” Brandy appealed.

The question on appeal is whether adding the words “or Alvin ISD” constituted a substantive change to both the MSA and the modification order improper under Tex. Fam. Code sec. 157.423(a).

The Court of Appeals noted that while the Family Code does not define what constitutes a “substantive change,” Texas courts generally look to judgments nunc pro tunc for guidance. As I blogged very recently, a judgment nunc pro tunc corrects either a clerical error or a judicial error. A judicial error is one that “results from judicial reasoning or determination,” whereas a clerical error “results from inaccurately recording the decision of the court.”

Brandy argued that the provisions of the MSA and modification order that Don seeks to purportedly clarify are clear and unambiguous. There was no evidence presented that the judgment incorrectly stated the rendition, the Court of Appeals held, and thus Don did not meet his burden in establishing an error existed which required clarification. Considering the differences between school districts can include the relative qualities of schools, family and community ties to the schools, and academic and extra-curricular opportunities in different schools. As such, adding Alvin ISD to the order was a substantive change. The order of the trial court was reversed and remanded.

The published opinion, In re Outi Salminen, No. 01-14-01021-CV, is another case I worked on. In this matter, the trial court exercised temporary emergency jurisdiction under Tex. Fam. Code sec. 152.204, and signed temporary orders granting the father temporary SMC and ordering the mother to immediately surrender the child to our client. The mother filed a petition for writ of mandamus. The Court of Appeals found the temporary orders were improper because, according to the Court of Appeals: 1) The father failed to establish the child was present in Texas at the time the temporary orders were entered; 2) The father failed to establish the child had been abandoned or was subject to or threatened with mistreatment or abuse; and 3) The trial court failed to comply with the procedural requirements of section 152.204(c) and (d).




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