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Gulley v. Gulley

Court of Appeals of Texas, First District

July 16, 2019

DUSTIN ANDREW GULLEY, Appellant
v.
AMY SUZANNE GULLEY, Appellee

          On Appeal from the 253rd District Court Chambers County, Texas Trial Court Case No. 18-DCV-0099

          Panel consists of Justices Lloyd, Kelly, and Hightower.

          MEMORANDUM OPINION

          PETER KELLY JUSTICE.

         Dustin Gulley and Amy Gulley are joint managing conservators of A.L.G. Dustin is A.L.G.'s paternal uncle, and A.L.G. resides primarily with him. Amy is A.L.G.'s mother. Dustin appeals the trial court's January 3, 2018 possession order ("possession order"), arguing that the order constituted a substantive change in the access and possession terms of the final SAPCR decree in violation of section 157.423 of the Texas Family Code. He also appeals the trial court's January 2, 2018 attorney's fees order ("attorney's fees order") that characterized an attorney's fee award as child support.[1] We agree and reverse.

         Background

         A.L.G.'s father, Dustin's brother, is deceased. In June 2016, Dustin filed a suit seeking to be named A.L.G.'s primary conservator. In April 2017, Dustin and Amy appeared in the trial court and announced that they had reached an agreement in consultation with the child's amicus attorney. The agreement was approved by the trial court on the same day[2] and a written order incorporating the agreement was signed on June 30, 2017.

         The SAPCR order awarded primary possession to Dustin, limiting Amy to periodic, limited possession. A drug testing provision of the possession order stated:

It is ORDERED that DUSTIN ANDREW GULLEY has the right to request AMY LOCKHART GULLEY to submit to urine and hair drug testing once per month via TalkingParents.com. Notice may not be sent on Friday through Sunday at 9:00 a.m.
IT IS FURTHER ORDERED that AMY SUZANNE LOCKHART[3]shall schedule an appointment and appear at National Screening Center, 407 Fannin, Houston, Texas 77002, . . . within 24 hours of DUSTIN ANDREW GULLEY sending AMY SUZANNE LOCKHART notice via TalkingParents.com with appropriate photographic identification to submit to urine and hair drug testing. IT IS FURTHER ORDERED that AMY SUZANNE LOCKHART shall remain there until such tests are completed and permit the taking of hair, urine, blood, body fluid, or tissue samples from her respective person to enable the drug screeners to make and perform such tests for the Court with a view to informing the Court of their professional opinions concerning the possibility, probability, or certainty of whether AMY SUZANNE LOCKHART is using, or has used, illegal drugs (not prescribed) or alcohol such as:
[LIST OF DRUGS] . . . .
It IS FURTHER ORDERED that if AMY SUZANNE LOCKHART fails or refuses to appear at National Screening Center, 407 Fannin, Houston, Texas 77002 . . . within 24 hours of DUSTIN ANDREW GULLEY sending AMY SUZANNE LOCKHART notice via TalkingParents.com with appropriate identification and permit the taking of [samples] from her respective person, AMY SUZANNE LOCKHART's results shall be deemed positive. In the event, AMY SUZANNE LOCKHART's tests (sic) at a higher level than 3.66 picograms for marijuana, it is ORDERED that test shall be deemed positive. In the event that AMY SUZANNE LOCKHART's tests positive, whether actual positive result or deemed positive result, for any type of drug whether cocaine or any other type of drug without a valid prescription prescribed to AMY SUZANNE LOCKHART, it is ORDERED that all AMY SUZANNE LOCKHART's periods of possession set forth in the Possession Order below are suspended pending further order of the Court. IT IS ORDERED that the drug testing as prescribed herein shall be a zero-tolerance drug test.

         The drug testing language is repeated in the section of the SAPCR decree covering possession. It reiterates that if Amy tested higher than 3.66 picograms[4] for marijuana, the test would be deemed positive, and in the event of a positive test, whether actually positive or deemed positive, for any drug, Amy's periods of possession would be suspended until further order of court.

         On August 1, 2017, just over a month after the order was entered, Amy filed a motion for enforcement of possession and access to A.L.G. She amended her motion on October 24, 2017. The amended motion alleged six occasions when Dustin did not have A.L.G. available for Amy. Amy asked the trial court for a variety of relief, including holding Dustin in criminal and civil contempt for each violation, granting her additional periods of possession, and ordering Dustin to pay attorney's fees. Amy also included a request that, "if the Court finds that any part of the order sought to be enforced is not specific enough to be enforced by contempt, the Court enter a clarifying order more clearly specifying the duties imposed on [Dustin] and giving [Dustin] a reasonable time within which to comply." See Tex. Fam. Code § 157.424 (request for clarification may be brought with motion for enforcement). Amy alleged that attorney's fees were necessary to ensure A.L.G.'s physical or emotional health or welfare and should be enforceable by any means available for enforcement of child support including contempt but not including income withholding. See Tex. Fam. Code § 157.167(b).

         After a hearing, the trial court did not find Dustin in contempt, finding instead that certain terms of the order were not specific enough to be enforced by contempt. The court entered the possession order adding language requiring Dustin to send notice of a drug test to Amy "at a reasonable time" that gives her "an actual 24 hours to comply." The court also added language that if Amy tested higher than 3.66 picograms "for ingestion" of marijuana, the test would be deemed positive. The trial court found that Dustin violated the original order by failing to surrender A.L.G. to Amy on two occasions and ordered Dustin to pay $1, 500 in attorney's fees to Amy's attorney.

         Dustin filed a motion for de novo review regarding the attorney's fees award. On January 3, 2018, the presiding judge issued the attorney's fees order that confirms the $1, 500 fee award but specified that it would ...


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