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Modification Versus Clarification: Understanding the Difference in Texas Divorces

Modification Versus Clarification: Understanding the Difference in Texas Divorces

Parties in Texas divorce cases often become confused over when decrees can be clarified—and what constitutes a clarification as opposed to a modification. Being able to distinguish the two often means the difference between success and failure in divorce matters.

Under Texas law, a trial court cannot change its final judgment after expiration of what is known as its “plenary power” over the judgment. Ordinarily, the trial court loses plenary power over the judgment—and the judgment therefore becomes final—30 days after it was signed. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). But the timely filing of certain post-judgment motions (most often a motion for new trial) can extend the trial court’s plenary power. If that occurs, plenary power expires 30 days after such a motion is overruled. If the trial court does not rule on such a motion within 75 days of the date of judgment, it will be deemed overruled by operation of law. Tex. R. Civ. P. 329b(c); Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (per curiam). In that event, plenary power expires 30 days later. See Tex. R. Civ. P. 329b(e); L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 444 (Tex. 1996) (per curiam).

What all of this means is that, at maximum, the trial court’s plenary power over the judgment cannot exceed 105 days after the date the judgment was signed. See In re Timberlake, 501 S.W.3d 105, 109 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding) (105th day after signing “last possible day” of plenary power); see also Lane Bank, 10 S.W.3d at 310; Faulkner, 851 S.W.2d at 188.

Once the judgment becomes final, it cannot be changed. “A judgment finalizing a divorce and dividing marital property bars relitigation of the property division, even if the decree incorrectly characterizes or divides the property.”  Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (citing Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) and Baxter v. Ruddle, 794 S.W.2d 761, 762-63 (Tex. 1990)).

Notwithstanding this general rule, the Family Code permits a trial court that rendered a divorce decree to clarify the decree’s property division. Tex. Fam. Code § 9.008; Gainous v. Gainous, 219 S.W.3d 97, 106 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). “A subsequent order may clarify a decree to correct an ambiguity so that the parties to that decree may comply with its terms.” Brown v. Brown, 236 S.W.3d 343, 347 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Tex. Fam. Code Ann. § 9.008(b) (West 2006)).

In no event, however, may a trial court “amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment.” Tex. Fam. Code § 9.007(a); In re W.L.W., 370 S.W.3d 799, 803 (Tex. App—Fort Worth 2012, orig. proceeding); Gainous, 219 S.W.3d at 106. Res judicata applies to a final divorce decree just as it does to any other final judgment. Baxter, 794 S.W.2d at 762. “Clarification orders thus cannot be used to make a substantive change in a divorce decree after it becomes final.” Brown, 236 S.W.3d at 347 (citation omitted). In other words, if the divorce decree is not ambiguous, it cannot be clarified because there isn’t anything to clarify.

Texas courts have consistently rejected attempts by trial courts to alter decrees under the guise of modification. In Everett v. Everett, 421 S.W.3d 918, 921 (Tex. App.—El Paso 2014, no pet.), the court of appeals reversed a trial court’s order converting a party’s obligation to make mortgage payments into a spousal support obligation—even though the trial court did so to clarify what it determined to be the parties’ intent in resolving their divorce.  Id. at 921. Similarly, In re R.F.G., 282 S.W.3d 722 (Tex. App.—Dallas 2009, no pet.), the court of appeals affirmed the denial of a clarification request that would have changed the decree’s property division. Id. at 727-28.

As previously noted, the trial court lacks the power to modify a decree of divorce after expiration of plenary power. Tex. Fam. Code § 9.007(a). If it does so, this constitutes a jurisdictional defect that renders the trial court’s order void. See Gainous, 219 S.W.3d at 108. Usually, the order of clarification can be challenged on direct appeal as being an impermissible modification of a final judgment. Sometimes, where a direct appeal is not possible, the void order may be challenged by mandamus. Either way, the law is clear that a Texas court cannot modify a final divorce decree under the guise of clarification.