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| | Clarifying Order |
When Clarifying Order Is Available
On the request of either party or on the court's own motion, a court ordinarily may render an order clarifying the division of property made in a decree. A clarifying order may be useful, for example, when a change of circumstances not contemplated in the decree requires one of the parties to take specific actions not mentioned in the decree in order to carry out the property division. Also, a clarifying order may be necessary to make the decree specific enough for enforcement by contempt. In this connection, the Family Code authorizes a clarifying order to be made either (1) before a motion for contempt is made or heard; (2) in conjunction with a motion for contempt; or (3) on denial of a motion for contempt.
When clarifying order takes effect.
A clarifying order may not be given retroactive effect for the purposes of contempt as an enforcement tool. Obviously, a party may not be punished for conduct not sufficiently specified in a decree. Moreover, a reasonable time must be provided for compliance with the clarification order before charging a party with contempt of that order or otherwise enforcing the order.
Power of trial court to issue order clarifying appealed decree.
If a divorce decree is appealed, the trial court loses jurisdiction to issue a clarifying order as to any portion of the decree concerning which the higher court renders judgment. As to issues that the higher court simply affirms without addressing, the trial court retains jurisdiction to clarify the decree.
Appeal of clarifying order.
A clarifying order itself is appealable as long as it qualifies as an appealable final judgment .
NOTE: It is not necessary to attempt to enforce an unclear decree before complaining on appeal that the decree is unenforceably vague.
Finding Required for Issuance of Clarifying Order
If the court finds that the original form of the division of property is not sufficiently specific to be enforced by contempt, the court may issue a clarifying order setting forth specific terms to enforce compliance with the original division of property.
Clarifying order not available if decree is unambiguous.
A request for clarification of a vague or ambiguous provision in a final decree is not considered a collateral attack on the decree, because the court has continuing jurisdiction to clarify its decree. Nevertheless, if the provision is unambiguous, the court must give effect to the literal terms of the decree and may not issue a ``clarifying'' order.
Clarifying Order May Not Change Property Division
Although a clarifying order may specify more precisely the manner of effecting a property division made in a decree, the order may not attempt to alter or change the substantive division of property. Thus, for example, a clarifying order may not divide property that was not divided in the divorce decree.
Lien to secure performance permissible.
It has been held that a court may order, as a clarification of its property division decree, one ex-spouse to sign a note to be secured by a lien on specified property
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