author: MACK KIDD, Justice.

text:
    Stephen G. FINLEY, Appellant, v. Beverly MAY, Appellee.
    No. 03-03-00395-CV.
    Court of Appeals of Texas, Austin.
    Dec. 9, 2004.

      Ray Fargason, Harding, Bass, Farga-son, Booth, St. Clair & Richards, LLP, Lubbock, for appellant.
    Karl E. Hays, John Barrett, Law Office of John Barrett, Austin, for appellee.
    Before Justices KIDD, B.A. SMITH and PEMBERTON.
   OPINION

MACK KIDD, Justice.

In a suit affecting the parent-child relationship, the trial court ordered Stephen Finley to pay Beverly May’s costs and attorney’s fees as “accrued child support.” The trial court ordered the payments enforceable by contempt and ordered the payments to be withheld from Finley’s monthly earnings. Finley objects to the contempt and withholding orders. He further objects to the transfer of venue from Lubbock County to Travis County on the basis that May’s motion to transfer was untimely filed. We will modify the trial court’s order to delete all characterizations of attorney’s fees as “child support” or as “in the nature of unpaid and accrued child support” and, as modified, affirm the order. We will also affirm the transfer of venue.

FACTUAL AND PROCEDURAL BACKGROUND

Finley and May were divorced in 1998 by a final decree rendered by the 137th District Court, Lubbock County, Texas. In the final divorce decree, May was appointed sole managing conservator, and Finley was appointed possessory conservator of the couple’s two daughters. Finley was also ordered to pay $485 per month in child support with a provision for withholding the child support from Finley’s earnings.

Finley later filed a petition in Lubbock County seeking to be appointed sole managing conservator of the two girls. May filed her original answer and, a few months later, filed a motion to transfer venue. At the hearing on the transfer motion, the Lubbock County district court ordered the suit transferred to the 201st District Court in Travis County.

After transfer, the case proceeded to trial in Travis County. The trial court denied all relief sought by Finley. Additionally, the court granted May’s counter-petition to modify by increasing the guideline monthly child support from $485 to $585. The trial court further ordered Finley to pay May’s costs and attorney’s fees in the amount of $47,250 and ordered that this payment “be in the nature of unpaid and accrued child support.” The trial court then ordered that $500 be withheld from Finley’s earnings each month and applied toward the payment of costs and attorney’s fees. Finley now appeals the trial court’s order.

STANDARD OF REVIEW

Finley does not challenge the order directing him to pay attorney’s fees and costs nor the amount .at which they were assessed. Rather, Finley contends that Texas law prohibits assessing as child support the attorney’s fees and costs awarded in a suit to modify the parent-child relationship. Finley thus challenges the trial court’s conclusion that attorney’s fees may be awarded as child support.

Texas appellate courts disagree about the awarding of attorney’s fees as child support in non-enforcement cases and about the appropriate standard of review. The Fourteenth Court of Appeals has stated that it “review[s] an award of attorney’s fees in the nature of child support for an abuse of discretion.” Hardin v. Hardin, No. 14-03-00342-CV, — S.W.3d -, -, 2004 WL 1404484, at *7 (Tex.App.Houston [14th Dist.] June 24, 2004, no pet. h.); see also London v. London, 94 S.W.3d 139, 146 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (attorney’s fees in suit affecting parent-child relationship awarded as “necessaries” to children). In contrast, the First Court of Appeals treats the awarding of attorney’s fees as child support as a legal conclusion and thus reviews the trial court’s decision de novo. See In re Moers, 104 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd).

We agree with the First Court of Appeals that the Texas Family Code requires us to review the awarding of attorney’s fees in the nature of child support as a legal conclusion, and we thus review the trial court’s order de novo.

DISCUSSION

In his first two issues, Finley contends that the trial court inappropriately applied the family code by awarding attorney’s fees to May “in the nature of unpaid and accrued child support.” In a suit affecting the parent-child relationship, Texas law grants the trial court the discretion to “render judgment for reasonable attorney’s fees as costs” and stipulates that such fees may be enforced “by any means available for the enforcement of a judgment for debt.” Tex. Fam.Code Ann. § 106.002 (West 2004).

However, courts awarding attorney’s fees in child-support enforcement actions have an additional collection option. If a party has failed to make child support payments, the trial court “shall order the [party] to pay the movant’s reasonable attorney’s fees and all court costs.” Such fees and costs “may be enforced by any means available for the enforcement of child support, including contempt.” Id. § 157.167 (West 2004). Thus, attorney’s fees may be assessed as child support during child support enforcement proceedings. Moers, 104 S.W.3d at 611; Tamez v. Tamez, 822 S.W.2d 688, 691 (Tex.App.-Corpus Christi 1991, writ denied).

Although the Texas legislature allows attorney’s fees to be levied as child support in suits to enforce a child-support order, we believe the legislature specifically distinguishes between the assessment of fees and costs in enforcement actions as opposed to modification suits because of the potentially serious consequences that stem from an award of fees as child support. See Tex. Fam.Code Ann. §§ 106.002,157.167. With the exception of child support enforcement actions, Texas law indicates that attorney’s fees may only be awarded as costs enforceable by debt. Id. § 106.002. Texas law prohibits imprisoning a person for debt. Tex. Const, art. I, § 18. However, attorney’s fees awarded as child support are not viewed as debt and may be enforced by contempt. Tex. Fam.Code Ann. § 157.167. Moreover, characterizing fees as child support permits the trial court to issue an order withholding earnings for such fees. Tex. Fam.Code Ann. § 158.0051 (West 2004).

In the case before us, Finley sought sole managing conservatorship, and May responded by seeking to increase the child-support payments. Although we do not have the reporter’s record before us, Texas appellate procedure authorizes us to “consider and decide those issues or points that do not require a reporter’s record for a decision” as long as a clerk’s record has been filed. Tex.R.App. P. 37.3. As indicated above, we review de novo the awarding of attorney’s fees as child support. Because we are reviewing the trial court’s legal conclusion, the clerk’s record, which includes the trial court’s order in this case, is adequate for our consideration of Finley’s issues. Neither May’s brief nor the trial court’s order indicate that Finley was delinquent in his child-support payments at the time of the modification proceeding. As such, this case involves attorney’s fees and costs incurred in modifying the parent-child relationship and does not involve enforcement of delinquent child-support obligations. We thus agree with Finley that the trial court erred in assessing May’s attorney’s fees and costs as child support, and we sustain Finley’s first two points of error.

In his final issue, Finley argues that it was error for the Lubbock County trial court to grant May’s motion to transfer venue to Travis County because the motion was not timely filed. The record, however, does not show that Finley preserved error on the issue of the timeliness of May’s motion to transfer. A point on appeal based on a trial court’s ruling on a motion must be supported by a showing in the record that the motion was presented to and acted upon by the trial court. Guyot v. Guyot, 3 S.W.3d 243, 246 (Tex.App.-Fort Worth 1999, no pet.); see Tex.R.App. P. 33.1(a). It is the appellant’s responsibility to preserve error by insuring that all issues he may wish to appeal are timely presented to and ruled upon by the trial court as well as timely and properly entered into the court record. Guyot, 3 S.W.3d at 248. The record of the hearing on the motion to transfer indicates that Finley objected to transfer on the grounds of inconvenience, expense, and May’s failure to meet the burden of proof required for transfer. There is no evidence in the record that Finley objected to the motion to transfer on the basis of its untimeliness. Nor is there any evidence that the trial court ruled on the issue of the motion’s timeliness in its decision to grant the transfer. Finley did not preserve error for appeal, and we overrule his final point of error.

CONCLUSION

The tidal court erred by characterizing the award of attorney’s fees and costs as “child support” and “in the nature of unpaid and accrued child support,” and we strike these characterizations from the trial court’s order. Accordingly, we modify the order regarding attorney’s fees and costs in the amount of $47,250 to assess them only as a judgment debt and not as child support. Consequently, we strike any enforcement by contempt or collection of attorney’s fees by monthly withholding. We reject Finley’s assertion that the Lubbock County trial court erred by granting May’s motion to transfer. Thus, we affirm the trial court’s order as modified.

      . As a prerequisite to presenting a complaint for appellate review, the record must show that:
      (1) the complaint was made to the trial court by a timely request, objection, or motion that:
      (A) stated that grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
      (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and (2) the trial court:
      (A) ruled on the request, objection, or motion, either expressly or implicitly;
      or
      (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
      Tex.R.App. P. 33.1(a).


source: Caselaw Access Project

author: ANNE GARDNER Justice.

license: Public Domain

text:
    In The Interest of B.T., M.J.R.B., T.B., and M.T., Children.
    No. 2-03-261-CV.
    Court of Appeals of Texas, Fort Worth.
    Dec. 16, 2004.

      Dean Swanda, Arlington, David A. Pearson, IV, Fort Worth, for Appellants.
    Tim Curry, District Attorney, Charles M. Mallín, Chief Appellate Division, Anne E. Swenson, David M. Curl, and Cindy M. Williams, Asst. District Attorneys of Tar-rant County, and Patricia L. Summers (Ad Litem), Fort Worth, for Appellees.
    Panel B: HOLMAN, GARDNER, and WALKER, JJ.
   OPINION

ANNE GARDNER Justice.

Both Father and Mother challenge the trial court’s termination of their parental rights. Both parents assert ineffective assistance of counsel claims and challenge the sufficiency of the evidence to support termination. Father also claims that the trial court’s termination order is void. We will affirm.

I. PROCEDURAL ISSUES

A. Background

The Texas Department of Protective and Regulatory Services (“TDPRS”) filed its original petition for termination of appellants’ parental rights on June 28, 2002, and that same date the trial court appointed TDPRS temporary managing conservator of appellants’ children. The trial court scheduled a full adversarial hearing for July 11, 2002. On July 10, the trial court reset the adversary hearing for July 30, 2002, and signed an order extending the temporary orders for the pendency of the suit or until further order of the court. There is no other order in the clerk’s record concerning an adversarial hearing.

On April 17, 2003, Father filed a motion for continuance from the trial court’s scheduled May 20, 2003 trial date. On May 1, 2003, Father filed a motion for extension from the trial court’s scheduled June 16, 2003 trial date. There is no order granting either motion, but the case went to trial on July 21, 2003. Following a five-day trial to the jury, the trial court rendered judgment terminating Father’s and Mother’s parental rights on August 18, 2003.

B. Ineffective Assistance of Counsel

1. General Principles

The trial court appointed counsel for both Mother and Father, who were indigent. On appeal, Mother and Father claim for the first time that their court-appointed counsel provided ineffective assistance because counsel did not object to the trial starting after the one-year deadline expired or the court’s failure to conduct a fourteen-day adversarial hearing.

The Texas Supreme Court has held that “the statutory right to counsel in parental-rights termination cases embodies the right to effective counsel.” In re M.S., 115 S.W.3d 534, 544 (Tex.2003); see Tex. Fam. Cobe Ann. § 107.013(a)(1) (Vernon Supp. 2004-05). Thus, when the trial court decided to appoint counsel to represent appellants, counsel’s obligation to provide effective assistance arose. See M.S., 115 S.W.3d at 544; Tex. Fam.Code Ann. § 107.013(a)(1).

In analyzing the effectiveness of counsel in the context of a termination of parental rights, we follow a two-pronged test that was set forth by the United States Supreme Court in Strickland v. Washington to determine whether an attorney’s representation was so inadequate as to be in violation of the Sixth Amendment right to effective assistance of counsel. Id. at 545 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674 (1984)). In order to show ineffectiveness of counsel in a termination-of-parental-rights case, the appellant must show that counsel’s assistance fell below an objective standard of reasonableness and that counsel’s deficient assistance, if any, prejudiced the defendant. Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). We acknowledge that there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

2. Preservation of Error

TDPRS contends that Appellants did not preserve their ineffective assistance of counsel claims because they did not include this issue in either their statements of points or motions for new trial.

a. Statements of Points

Family code section 263.405(b) provides that “[n]ot later than the 15th day after the date a final order is signed by the trial judge, a party intending to appeal the order must file with the trial court a statement of the point or points on which the party intends to appeal.” Tex. Fam.Code Ann. § 263.405(b) (Vernon 2002). Father and Mother each filed statements of points, but neither included the ineffective assistance of counsel claim. TDPRS contends that Appellants waived the ineffective assistance of counsel claims because they did not include them in the statements of points.

We addressed this very issue in In re W.J.H., in which we held that a party’s failure to include a particular point or points in the statement of points filed under section 263.405(b) does not waive his or her right to raise the excluded points on appeal and does not bar our consideration of the point on appeal when an appellee does not demonstrate prejudice. 111 S.W.3d 707, 712-13 (Tex.App.-Fort Worth 2003, pet. denied). For the reasons stated in In re J.J.O., we decline to reconsider that holding. See In re J.J.O., 131 S.W.3d 618, 626-27 (Tex.App.-Fort Worth 2004, no pet.). Accordingly, Appellants did not waive their ineffective assistance of counsel claims by failing to include them in their statements of points.

b. Motions for New Trial

TDPRS also contends that Father and Mother waived their ineffective assistance of counsel claims because they did not raise them in their motions for new trial. TDPRS argues that rale of civil procedure 324(b)(1) requires the claims to be raised in the motions for new trial because they are complaints on which evidence must be heard. Tex.R. Civ. P. 324(b)(1). We disagree. An ineffective assistance of counsel claim can be raised for the first time on appeal without being preserved in the trial court. In re J.M.S., 43 S.W.3d 60, 64 (Tex.App.-Houston [1st Dist.] 2001, no pet.); see In re M.S., 115 S.W.3d at 546-50 (considering ineffectiveness of counsel even though no motion for new trial filed). By not presenting the issue in a motion for new trial and developing a record of ineffective behavior, the proponent of the claim has a difficult burden to overcome because the challenged action might be considered sound trial strategy. In re J.M.S., 43 S.W.3d at 64. But this does not preclude presentation of the issue on appeal.

3. One-Year Deadline

Both Father and Mother contend that their appointed counsel were ineffective because they did not object to the trial starting more than one year after the trial court appointed TDPRS as temporary managing conservator of the children. They assert that had their counsel objected, the trial court would have had no discretion but to dismiss the case and return their children to them.

Section 263.401 of the family code provides that, unless the trial court has rendered a final order on the first Monday after the first anniversary of the date the court appointed TDPRS as temporary managing conservator in a suit affecting the parent-child relationship, the court “shall dismiss” a suit filed by TDPRS that seeks the termination of the parent-child relationship. Tex. Fam.Code Ann. § 263.401(a). The trial court may extend this deadline for up to 180 days if, by the Monday after the first anniversary date, the court finds that continuing TDPRS’s conservatorship of the child is in the child’s best interest and renders an order that complies with section 263.401(b). Id. § 263.401(b). If the trial court grants an extension, but does not render a final order within the 180-day period, it must dismiss the suit. Id. § 263.402(c).

A party may, however, waive the right to object to the trial court’s failure to comply with these statutory deadlines. Under section 263.402(b), a party “who fails to make a timely motion to dismiss the suit or to make a motion requesting the court to render a final order before the deadline for dismissal ... waives the right to object to the court’s failure to dismiss the suit.” Id. § 263.401(b). To be timely, a motion to dismiss must be made before TDPRS has introduced all of its evidence, other than rebuttal evidence, at the trial on the merits. Id.

It is undisputed that the trial started more than one year after TDPRS was awarded conservatorship of the children and that neither Father’s nor Mother’s attorney objected to the trial starting after section 263.401(a)’s one-year deadline. Father and Mother both contend that their attorneys’ waiver by failing to timely object to trial starting after the one-year deadline was ineffective assistance of counsel. But they fail to meet their burden to show that their appointed attorneys’ assistance fell below an objective standard of reasonableness.

Mother points out that no extension order is included in the clerk’s record. TDPRS responds by referring us to the order extending the temporary orders during pendency of the suit. Furthermore, the reporter’s record contains two references to an extension, both made without objection by the other party. At one point TDPRS’s attorney asked a witness: “Are you aware that TDPRS has extended the dismissal date and we’re actually in the extension period?” At another, Father’s attorney asked a different witness: ‘You know this case had an extension to July?” and “Did you know that an extension was granted in May?”

Section 263.401(b) simply requires the court to “render” an extension order. Tex. Fam.Code Ann. § 263.401(b). It does not require that the order be written. In re D.D.M., 116 S.W.3d 224, 230 (Tex.App.-Tyler 2003, no pet.); see also Phillips v. Tex. Dep’t of Protective & Regulatory Servs., 149 S.W.3d 814, 817 (Tex.App.-Eastland, 2004, no pet. h.). Thus, an extension of time for the dismissal deadline announced in open court may properly be rendered according to the statute. In re D.D.M., 116 S.W.3d at 230. Father and Mother have failed to provide an adequate record on appeal to show that the dismissal deadline was not orally rendered.

Furthermore, Father filed both a motion for continuance and a motion for extension. The motions, which were filed in April and May 2003, sought extension of trial settings for May 20, 2003 and June 16, 2003, respectively. In both motions, Father asserted that he needed more time to complete his service plan. There is no order on either motion in the clerk’s record. Nevertheless, a party who requests the trial court to reset the trial date beyond the original one-year deadline set out in 263.401(a) has agreed to an extension under section 263.401(b). In re B.W., 99 S.W.3d 757, 758 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Because Father sought an extension only weeks before the one-year deadline expired, Father’s attorney could have reasonably concluded that Father agreed to an extension beyond the one-year deadline.

Father and Mother failed to show that them appointed counsel acted unreasonably by fading to object to trial starting after the one-year deadline. Accordingly, we need not address their arguments that counsel’s allegedly deficient performance prejudiced their defense.

4. Fourteen-Day Adversary Heariny

Father also argues that his counsel was ineffective for another reason. Father asserts that the trial court failed to have an adversary hearing within fourteen days after TDPRS was appointed as temporary managing conservator of the children. Tex. Fam.Code Ann. § 262.201(a) (Vernon 2002). As a result, Father contends that the trial court had no discretion but to return the children; therefore, he claims his counsel was ineffective because had his counsel but asked, the trial court would have been compelled to return the children. We disagree.

The trial court does not lose jurisdiction if it fails to timely conduct the hearing. Instead, the remedy for the parents and TDPRS is to compel the trial court by mandamus to conduct the adversary hearing promptly. In re J.M.C., 109 S.W.3d 591, 595 (Tex.App.-Fort Worth 2003, no pet.); In re E.D.L., 105 S.W.3d 679, 687 (Tex.App.-Fort Worth 2003, pet. denied). Without addressing whether counsel acted competently, we hold that Father failed to show he was prejudiced by counsel’s failure to seek return of the children on the basis that there was no adversary healing within the fourteen-day window.

C. Jurisdiction

In his second issue on appeal, Father raises a confusing issue seeming to argue that the final judgment is void because the trial court failed to hold the full adversary hearing and enter a temporary order extending the TDPRS’s status as temporary managing conservator within fourteen days after the children were taken into possession as required by section 261.201(a). Father concedes that this court has held that both sections 262.201 and 262.401 are procedural rather than jurisdictional. See In re S.J.G., 124 S.W.3d at 243-44; In re J.M.C., 109 S.W.3d at 594; In re E.D.L., 105 S.W.3d at 688. But Father argues that the failure of the trial court to comply with those statutes nevertheless has “jurisdictional implications.”

Specifically, as we understand his argument, Father analogizes the June 28, 2002 order appointing the TDPRS as temporary managing conservator to a temporary restraining order, and the July 11, 2002 order extending the date for the adversary hearing to July 30, 2002 to an order extending the time for a hearing on a temporary injunction. Tex.R. Civ. P. 680. The problem, he says, is that there was no full adversarial hearing conducted on the extended date of July 30, 2002. Because the TDPRS did not proceed with an adversary hearing, he argues, both the June 28, 2002 order and the July 11, 2002 order expired and the trial court had no alternative but to order the children returned to the parents. Tex. Fam.Code Ann. § 262.201(a) (full adversary hearing required unless TDPRS returns children), § 262.201(b) (“court shall order the return of the child to the parent”), § 262.201(c) (unless court issues appropriate temporary order).

We rejected the jurisdictional argument invoking Rule 680 in In re J.M.C., in which the parent likewise asserted that, when the original ex parte temporary possession order expired without a full adversary hearing, the trial court was required to dissolve the order and render a final judgment returning the child to the parent. We pointed out that expiration of a temporary restraining order under Rule 680 does not deprive the trial court of jurisdiction over the subject matter of a civil suit, and nothing in that rule or in section 262.201 deprives the trial court of jurisdiction over a termination proceeding simply because a temporary possession order expired without a full adversary hearing. 109 S.W.3d at 595.

Conceding that expiration of a temporary restraining order or temporary injunction normally has no jurisdictional implications, Father argues it is what the trial court must then do after the-orders expire that deprives the trial court of jurisdiction. He points to the mandatory nature of the requirement that the trial court “shall order the return of the child to the parent,” citing sections 262.201(b) and (c), arguing that such an order is a final judgment and, therefore, that jurisdiction is lost upon the expiration of the trial court’s plenary power under Texas Rule of Civil Procedure 324b(d). Father urges that the signing of a mandatory order under the statute is merely a ministerial duty, the right to which exists before the trial court signs the order. Notwithstanding the fact that the trial court did not sign an order returning the children to Father, he argues that such an order must be deemed to have been rendered by operation of law. Thus, he says, the trial court’s plenary power expired before the case proceeded to trial, and everything done after that time was void.

In In re E.D.L., we rejected a virtually identical argument that, because the court did not conduct an adversary hearing within fourteen days after the TDPRS took possession, and because the language of the statute is mandatory, the trial court lost jurisdiction and the case was therefore dismissed by operation of law. 105 S.W.3d at 686. As we pointed out in that case, the issue is not whether the statutory language is mandatory but what consequences follow a failure to comply. Id. We noted that, despite the language in section 262.201 mandating a hearing, the statute contained no corresponding provision dictating dismissal for noncompliance. Id. at 687.

If the legislature had intended to require a dismissal as the result of a failure to hold an adversary hearing, it could have so provided. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex.2001) (“If the Legislature had intended dismissal to be the consequence of a failure to hear a forfeiture case within the prescribed period, it could easily have said so.”). “Just because a statutory requirement is mandatory does not mean that compliance with it is jurisdictional.” In re E.D.L., 105 S.W.3d at 687 (quoting Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999)). Mindful of all of the same policy arguments made in both cases, we decline to reconsider our decision that the failure to hold a fourteen-day adversary hearing does not deprive the trial court of jurisdiction over the termination proceeding. Id. at 688. We overrule Father’s second issue.

II. SUFFICIENCY OF THE EVIDENCE

A. Background

Mother has five children: two daughters, B.T. and M.T., and three sons, M.J.R.B. (R.B.), T.B., and A.S. Her son A.S. was the subject of another proceeding, and parental rights as to A.S. were not addressed in this case. Father is the father of R.B., T.B., and A.S. B.T.’s father’s parental rights had been terminated prior to this case. M.T.’s alleged biological father was served, but he did not participate in this case. His parental rights to M.T. were terminated, and he does not appeal the termination.

Mother was fourteen years old when B.T. was born on April 19, 1994. After B.T. was born, Mother dropped out of the ninth grade. In 1995 or 1996, she moved to an apartment complex where she routinely allowed B.T. to wander alone while she slept until midafternoon. CPS was notified. When the apartment manager, who would later become Mother’s mother-in-law, expressed concern for B.T., Mother told her to mind her own business. Mother began dating Father in 1995. Mother was sixteen and Father was twenty years old when R.B. was born on April 18, 1996. Mother and Father married on June 17, 1996.

Father went to jail in July 1996, and Mother and her two children moved in with Father’s father, his stepmother Mer-rie Lee Vieman, and Vieman’s two children. In August 1996, they all moved into a one-room motel where they lived for about one year. Vieman took ten-month-old R.B. to get his two-month shots. Mother later moved with the children to their own apartment. A TDPRS caseworker noticed a dark brown substance that he believed to be excrement on the stroller where R.B. also ate. He demanded that Mother clean the apartment, but she refused.

The record is unclear as to when Father was released from jail or reunited with Mother, but Mother and Father lived in Brownwood from August to December 1997, and T.B. was born on October 22, 1997. Shortly before T.B.’s birth, they contacted Father’s father and Vieman because they were homeless. They were also being investigated by TDPRS over the children’s severe diaper rashes that were being left untreated.

Mother and Father moved to Arlington in December 1997. The three children, including six week old T.B., moved in with Vieman. Vieman returned the children to Mother and Father in January 1998. Mother and Father moved with the children to Lubbock in January or February of 1998.

Mother and Father split up in April 1998. On April 6,1998, Father was sent to the penitentiary after he violated his probation. Mother sent the two boys, R.B. and T.B., to live with Father’s father and Vieman. At the time, TDPRS was investigating diaper rash so bad that R.B.’s bottom was bleeding. From April to August 1998, Mother failed to maintain contact with the boys or their caretakers. She had her next contact with R.B. and T.B. in November 1998, but she left her daughter B.T. alone in the car for thirty minutes while she visited with the boys. Mother did not see the boys again until June 2001, and she provided no support for them.

Mother, her mother Susan Taylor, her half-brother Jeff Walton, and B.T. moved in with Donna Kessler in September or October 1998. A.S. was born on December 29, 1998. Kessler observed bad parenting on Mother’s part. B.T. had bruising where Mother had grabbed B.T.’s arm and twisted it. Mother also screamed at the baby A.S.

Mother left Kessler’s home and moved back to Lubbock with B.T. and A.S. in February or March 1999. In April 1999, TDPRS investigated a bruise in the shape of a slap mark on three-and-a-half-month old A.S.’s face. Taylor was babysitting A.S. when the slap mark appeared on A.S.’s face, and Mother told hospital workers that she thought Taylor caused the bruise. Taylor had a history with TDPRS, and Mother had been repeatedly warned not to allow Taylor to supervise the children. Nevertheless, Mother continued to leave A.S. alone with Taylor until Taylor left the area to avoid the physical abuse investigation.

The police were summoned to Mother’s home in April or May 1999 where they found B.T. and A.S. unsupervised. B.T. was found wandering alone around the trailer park. The house had broken windows and locks, a stopped-up sink, and raw sewage. Mother sent B.T. and A.S. to live with Kessler in May 1999 because she did not want TDPRS to put them into foster care. In June 1999, Mother began the psychological counseling and parenting classes provided to her by TDPRS, but dropped the sessions due to lack of interest.

B.T. and A.S. came to live with Mother in July or August 1999. In August 1999, Mother moved into rent-free housing provided by TDPRS, but she violated her lease by having friends and relatives stay with her.

On October 13, 1999, Father was released from prison and moved in with his father and Vieman, who were still taking care of R.B. and T.B. The boys frequently smeared feces on the walls, but Father did not consider it his responsibility to clean up the messes made by his children. Vie-man eventually asked Father to move out and to take R.B. with him because R.B. had major psychological problems that required attention. R.B. exhibited jealousy toward his nine-month-old brother T.B., stabbed T.B.’s port-o-crib with a knife, and put pillows over T.B. Father later left R.B. with Vieman for what was supposed to be a twenty-four-hour visit, but Father failed to check in with Vieman for three days.

In January 2000, Lubbock TDPRS was concerned about a “very bad” rash on the back of A.S.’s legs and took A.S. to the hospital. TDPRS prepared to remove the children from Mother’s care in January 2000, so Mother sent B.T. and A.S. to live with Kessler. Both of the children had lice. B.T. had open sores and lice an inch deep and had missed two weeks of school because of lice.

Mother lived with Taylor in Rockwall from summer 2000 until July 10, 2001. In July 2000, B.T. made a sexual molestation outcry against Mother’s half-brother. Mother pressed charges against her half-brother, and he was convicted for sexually assaulting B.T. and was in prison at the time of trial.

M.T. was born on May 5, 2001. In June 2001, Father and Mother reunited after a three year separation and moved to Hurst. B.T. returned to live with Mother and Father in June 2001, and A.S. returned six months later. In August 2001, Mother surrendered managing conservatorship of A.S. to Kessler. Neither Mother nor Father complied with a court order to pay Kessler child support. In October 2001, Vieman returned T.B. to Mother and Father. T.B. had just turned four and had lived with Vieman since he was six weeks old. Kessler returned A.S. to live with Mother and Father in November 2001.

TDPRS investigated the family in January 2002 because of braises and scratches on the children. Mother explained that she wouldn’t have scratched the children if she had sculptured nails, and Father acknowledged the braises, but was not concerned about them. B.T. told a TDPRS investigator that Mother instructed her not to disclose that Mother “smacks” her. B.T. also told the investigator that Mother “hates me” and that Mother was not a good mommy. B.T. had ringworm, bruises, and a fabric burn on her arm. During this time period, A.S. told Kessler that Mother hit him on the top of his head. He had a faint bruise and a headache. Mother and Father’s home continued to get dirtier.

Catholic Family Services attempted to work with Mother and Father from February 8, 2002 to July 14, 2002 because Mother and Father chose to work with Catholic Family Services instead of TDPRS. Mother and Father failed to take advantage of the classes and counseling offered by Catholic Family Services and offered poor excuses for their failures to do so. The conditions of the home during this time were poor, and the children had lice.

In June 2002, TDPRS became concerned about a braise on A.S.’s face. Mother admitted that she caused the bruise. She told Kessler that she “freaked out” and hit A.S. Mother later claimed that she hit three-and-a-half-year old A.S. in the face to force him to spit out what she thought was a poisonous mushroom. B.T. said that she told Mother that A.S. had a cracker in his mouth, not a mushroom, but Mother would not stop hitting A.S. Father and Kessler both testified that the braise was a bad bruise. Father admitted that the braise was caused by substantial force. He gave contradictory statements about whether he was present when Mother hit A.S., causing the bruise.

TDPRS removed the children on June 27, 2002. Mother was subsequently arrested on outstanding warrants. The house was filthy and unsafe. The children were unclean and wearing dirty clothes, had lice, and were hungry. A.S. was placed with Kessler, with whom he had lived most of his life, and the other four children were placed with a foster mother. The foster mother testified that when the children came into her care, they were unaccustomed to eating utensils, bathing, brushing their teeth, or toilet paper.

R.B. was hospitalized for psychiatric care three times while he was in foster care. Mother and Father did not respond to any of the notifications that he had been hospitalized. Instead, they screamed at TDPRS workers about it at a child visitation, aware that the children could hear them. B.T. was moved to tears by the tantrum. Father and Mother sporadically attended the classes and counseling sessions provided by TDPRS, and they quit attending the few they started. They claimed that they had transportation problems, but there was evidence that they were able to get to visitations and fast food restaurants at the time they claimed they could not get to classes. They were evicted from the Hurst trailer park in November 2002. They refused TDPRS’s offer to help them obtain subsidized housing and subleased an Irving apartment.

On December 4, 2002, Mother and Father were told that TDPRS planned to recommend termination. They did not attend the Permanency Planning Team meeting where the proposed termination was discussed, despite having been given a map and directions to the meeting place. At the Christmas 2002 visitation, the children gave Mother and Father presents. Mother and Father had no gifts for the children and told them that their Christmas presents would come in July after the parents won" the court case. In July 2003, Mother and Father told B.T. that she would be given to an aunt after they won the court case because Mother and Father could give her to whomever they wanted.

After a five-day trial, the jury found that both Mother and Father engaged in conduct or knowingly placed B.T., R.B., T.B., and M.T. with persons who engaged in conduct that endangered the physical or emotional well-being of the children, and that termination of Mother’s and Father’s parental rights to B.T., R.B., T.B., and M.T. would be in the children’s best interest. Mothers parental rights in B.T., R.B., T.B., and M.T. and Father’s parental rights in R.B., T.B., and M.T. were terminated on August 18, 2003. On appeal, Father asserts that the evidence is factually insufficient to support the endangerment findings as to him, and both parents assert that the evidence is factually insufficient to support the finding that termination of their parental rights is in the best interest of the children.

B. Standards of Review

A parent’s rights to “the companionship, care, custody, and management” of his or her children are constitutional interests “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982). “While parental rights are of constitutional magnitude, they are not absolute. Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26 (Tex.2002). In a termination case, the State seeks not just to limit parental rights but to end them permanently — to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child’s right to inherit. Tex. Fam.Code Ann. § 161.206(b) (Vernon Supp.2004-05); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). We strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at 20-21; In re D.T., 34 S.W.3d 625, 630 (Tex.App.-Fort Worth 2000, pet. denied) (op. on reh’g).

In proceedings to terminate the parent-child relationship brought under section 161.001 of the family code, the petitioner must establish one or more of the acts or omissions enumerated under subdivision (1) of the statute and must also prove that termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon 2002); Richardson v. Green, 677 S.W.2d 497, 499 (Tex.1984); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.-Waco 2002, pet. denied). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by “clear’ and convincing evidence.” Tex. Fam.Code ANN. §§ 161.001, 161.206(a); In re G.M., 596 S.W.2d 846, 847 (Tex.1980). This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. G.M., 596 S.W.2d at 847; D.T., 34 S.W.3d at 630. It is defined as the “measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. FaM.Code Ann. § 101.007 (Vernon 2002).

The higher burden of proof in termination cases alters the appellate standard of factual sufficiency review. In re C.H., 89 S.W.3d at 25. “[A] finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.” Id. In considering whether the evidence of termination rises to the level of being clear and convincing, we must determine “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction” that the grounds for termination were proven. Id. Our inquiry here is whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated one of the conduct provisions of section 161.001(1) and that the termination of the parent’s parental rights would be in the best interest of the child. Id. at 28.

C. Discussion

1. Endangerment

Father challenges the trial court’s findings that he knowingly placed or knowingly allowed his children to remain in conditions or surroundings that endangered their physical or emotional well-being, and that he engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being. Tex. Fam.Code Ann. §§ 161.001(1)(D),(E). In an involuntary termination proceeding, endangerment means to expose a child to loss or injury or to jeopardize a child’s emotional or physical health. Boyd, 727 S.W.2d at 533. Father raises only two arguments as to why he believes the evidence is insufficient to support the endangerment findings.

First, Father argues that the evidence is factually insufficient because there is no evidence that he ever struck any child hard enough to leave a mark. That is not the test, however. Furthermore, a child need not suffer actual physical injury for a finding of endangerment to be made. Id. Nevertheless, there was evidence that Father struck the children with a metal studded belt. All of the children talked about being “smacked” by Father and Mother, they were frequently observed with bruises, and they expressed concern that they would be “smacked” if they were returned to their parents. Furthermore, Father left the children with Mother, who frequently struck them. Placement of a child with an abusive parent or relative is endangerment. In re J.M.M., 80 S.W.3d 232, 242 (Tex.App.-Fort Worth 2002, pet. denied), disapproved on other grounds, In re J.F.C., 96 S.W.3d 256 (Tex.2002). And Mother does not challenge the court’s findings that she endangered the children.

Second, Father claims that TDPRS based its decision to remove the children upon the isolated incident of Mother striking A.S. when she thought A.S. had a poisonous mushroom in his mouth, and asserts that this incident does not provide sufficient evidence to support termination of his parental rights. The TDPRS case worker testified that this striking incident was “the straw that broke the camel’s back.” However, there was overwhelming other evidence to support removal, such as the continually filthy home conditions, physical abuse, neglect, lack of supervision, and failure to address the children’s health concerns. Endangerment can occur through both the acts and omissions of a parent, and parental neglect can be as dangerous to a child’s well-being as direct abuse. In re M.C., 917 S.W.2d 268, 270 (Tex.1996). The record is replete with evidence of endangerment beyond the mushroom-slapping incident.

We have reviewed the record extensively, and under the applicable standard of review, we hold that the evidence is factually sufficient to constitute clear and convincing evidence to support the trial court’s finding that Father engaged in conduct that endangered the children’s physical or emotional well-being.

2. Best Interest

Both Mother and Father challenge the factual sufficiency of the evidence to support the jury’s findings that termination of their parental rights was in the best interest of the children. Tex. Fam.Code ANN. § 161.001(2). Nonexclusive factors that the trier of fact in a termination case may use in determining the best interest of the child include the following:

(1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to promote the best interest of the child;
(6) the plans for the child by these individuals or by the agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). These factors are not exhaustive; some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the children. Id. On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding. Id.

B.T., R.B., and initially T.B., were bonded to their parents. M.T. was only two years old at the time of trial. All of the children did well in foster care, and they expressed fear and anger when the parents told them that they were returning home because they thought Mother and Father would continue to “smack” them.

B.T. had been required to assume a parental role in the home. Mother expected B.T. to wake her in the mornings, to prepare breakfast and lunch for her younger siblings, and to wash the dishes. She would be “smacked” if she did not do it exactly right. She had difficulty giving up her parental role while in foster care. She was sexually assaulted by Mother’s half-brother, and while Mother’s half-brother was convicted, Mother failed to follow through with getting B.T. the counseling she needed, especially when she had flashbacks of the attack.

R.B. was violent toward his siblings, especially his younger brother T.B., and could not be controlled by his foster parent. He attempted to injure T.B. several times and threatened to cut off his siblings’ heads. He was admitted to a mental hospital three times while in foster care and eventually removed from the foster home where B.T., T.B., and M.T. were placed and placed in a therapeutic foster home. R.B. also inflicted injury on himself, primarily by head banging, but Mother and Father trivialized his problems and thought he simply sought attention. B.T., R.B., and T.B. were prescribed medication for ADHD after being removed from the home.

Mother and Father had failed to provide the children with the medical attention they needed in the past. Mother unsuccessfully attempted to treat repeated bouts of diaper rash and lice infestations. Mother failed to get baby T.B. his immunizations. Mother and Father physically abused the children. They also locked the children in their bedroom. R.B. and T.B. were so afraid to come out that they urinated in the vents. Father made the children drink hot sauce before they could have popsicles. Throughout Mother’s and Father’s long history with TDPRS, they maintained filthy, unsanitary house conditions and refused to clean up the various homes they lived in. They failed to supervise the children, letting toddlers roam alone or failing to inform caretakers of Mother’s or Father’s whereabouts.

Mother was bonded to and affectionate with B.T. She enlisted help when she felt she was not able to care or provide for her children, as when she sent the children to live with Father’s father and stepmother or with Kessler. Mother also claimed that she slapped A.S. because she was in a panic trying to protect him from a poisonous mushroom, not because she was trying to harm him. She occasionally made attempts to clean the home and completed parenting and anger management classes.

Father was not employed after the children were removed from the home because he had injured his right wrist in an on-the-job injury and was on workers’ compensation. He participated in a bowling league from June 2002 to February 2003 and testified that his doctor told him he could bowl left-handed, but could not work. Mother sporadically worked as a bartender or a nurse’s aid at various nursing homes.

Mother and Father were offered many programs to assist them, but they failed to take advantage of those programs in the past, and there was no indication they would do so in the future. Mother and Father had no plans for the children if they were returned. They had recently purchased a trailer home in Lubbock, but there was no indication that they would be any more stable in that location than they had been in the past. Mother told B.T. that when the children were returned to her, she would send B.T. to live with Mother’s sister. In contrast, TDPRS planned for the children to be adopted and believed that all four children could be adopted by the same family, even though the foster mother with whom they were placed was not in a position to adopt the children.

Mother offered no excuses for her acts or omissions as a parent. The only excuse offered by Father for not cooperating with TDPRS’s service plan was that he did not think he needed any improvement.

We have reviewed the record extensively, and under the applicable standard of review, we hold that the evidence is factually sufficient to constitute clear’ and convincing evidence to support the trial court’s finding that termination of Mother’s and Father’s parental rights was in the best interest of B.T., R.B., T.B., and M.T. We overrule Mother’s and Father’s suffieiency-of-the-evidence points.

III. CONCLUSION

Having overruled all of Father’s and Mother’s points on appeal, we affirm the trial court’s judgment terminating their parental rights.

      . TDPRS also urges us, for the second time, to reconsider our opinion in In re S.J.G., 124 S.W.3d 237, 240 (Tex.App.-Fort Worth 2003, pet. denied) (holding that failure to file statement of points is not jurisdictional defect that prevents appellate court from addressing issues on appeal). We again decline to do so. See In re J.J.O., 131 S.W.3d at 626-27.

      . An allegation of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999).


author: TERRIE LIVINGSTON, Justice.

text:
    Ex parte Robert Michael STREATER.
    No. 2-04-181-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 16, 2004.
    Discretionary Review Refused March 16, 2005.
    L. Patrick Davis, Fort Worth, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallín, C. James Gibson, and Kim D’Avignon, Asst. Criminal District At-tys, Fort Worth, for State.
    Panel B: LIVINGSTON, GARDNER, and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant Robert Michael Streater appeals from the trial court’s denial of his pretrial writ of habeas corpus. In a single point on appeal, he contends that the trial court does not have jurisdiction to consider the State’s motion to revoke his deferred adjudication community supervision. We affirm.

On August 28, 2000, appellant Robert Michael Streater pled guilty to theft, and the trial court placed him on deferred adjudication community supervision. The trial court extended appellant’s community supervision twice, once beginning August 27, 2002 and again on April 17, 2003.

On March 26, 2004, the State filed a motion to adjudicate appellant’s guilt. Appellant filed a pretrial writ of habeas corpus. In it, he alleged that the trial court did not have jurisdiction to adjudicate his guilt because the community supervision period ended August 27, 2003; thus, the State did not file its motion to adjudicate, and the trial court did not issue a capias for appellant, until after expiration of the community supervision period. See Tex.Code Crim. Prog. Ann. art. 42.12, § 21(e) (Vernon Supp.2004-05). The trial court denied relief.

Appellant contends that he proved by a preponderance of the evidence that his community supervision period expired August 27, 2003. At the hearing on his application for relief, appellant introduced into evidence a certificate of proceedings signed by the trial court and dated April 17, 2003, which states that appellant’s community supervision is extended but omits a starting date for the extension. The trial court also took judicial notice of the contents of its file. The State did not introduce any evidence.

Appellant argued that the certificate of proceedings was not a valid order extending his community supervision. Then the following exchange occurred:

THE COURT: Well, the document that you are relying on is not the Court’s order. The Court’s order is entitled Supplement/Amended [sic] to Conditions of Community Supervision. It was filed in the papers of this cause on April 17th of 2003. And that document reads that your client agreed and I agreed—
[DEFENSE COUNSEL]: I am going to object, Rule 605.
THE COURT: — to extend his—
[DEFENSE COUNSEL]: Can I get a ruling on my objection.
THE COURT: It’s overruled.
THE COURT:....
His extension of community supervision period was extended one year with fees beginning 8-26-03. There is a definite beginning date. It was extended within the original period of probation. The extension is valid. This Court has jurisdiction.

The record contains an order dated April 17, 2003, which extends appellant’s community supervision for “1 year ... beginning 8-26-03.” Appellant contends that this order was superseded by a subsequent order signed on April 25, 2003, which adds conditions to appellant’s community supervision but does not mention the extension. But both orders are called “Supplement /Amendment to Terms of Community Supervision.” [Emphasis added]. And another order dated September 2003 — after the date appellant contends his community supervision ended — does not mention the extension but purports to add additional conditions to appellant’s community supervision. Thus, the record shows that the subsequent documents were intended to supplement, not supersede, the April 17, 2003 order. See Poston v. State, 822 S.W.2d 821, 822 (Tex.App.-Fort Worth 1992, pet. ref'd); Duhrkopf v. State, 671 S.W.2d 147, 151 (Tex.App.-Fort Worth 1984, pet. ref'd) (op. on reh’g).

Appellant further contends that the trial court’s quoted statements constituted testimony and, thus, violated rule of evidence 605 and “far exceeded the scope of the Judge’s impartial role in simply making a ruling.” The trial court was entitled to take judicial notice of its own orders in the case. See Baumert v. State, 709 S.W.2d 212, 213 (Tex.Crim.App.1986); Hokr v. State, 545 S.W.2d 463, 465-66 (Tex.Crim.App.1977) (op. on reh’g); Bob Smith Bail Bonds v. State, 963 S.W.2d 555, 556 (Tex.App.-Fort Worth 1998, no pet.). Thus, the trial court’s statements were not improper.

We hold that the trial court did not err in denying appellant habeas corpus relief. We overrule appellant’s sole point on appeal and affirm the trial court’s order.

      . This was the State’s second motion to adjudicate.

      . Appellant did not object.

      . Appellant cites the general rule in civil cases that an amended pleading supersedes prior pleadings; however, there is no analogous rule in criminal law. See Thomas v. State, 825 S.W.2d 758, 761 (Tex.App.-Houston [14th Dist.] 1992, no pet.); see also Poston, 822 S.W.2d at 822 (rejecting argument that court should analogize to Tex.R. Civ. P. 65 in determining that trial court’s order amending conditions of probation supplemented rather than superseded original conditions).

      . "[I]f a fact is judicially noticed, it need not be pleaded or proved.” 35 Tex. Jur.3d Evidence § 45 (2002).


author: PER CURIAM.

text:
    FIRST NATIONAL ACCEPTANCE COMPANY, Appellant, v. Floyd DIXON, Appellee.
    No. 09-03-504 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Oct. 21, 2004.
    Decided Dec. 30, 2004.

      William Britton Hall, Beaumont, for appellant.
    Phil Dunlap, Wells, Peyton, Greenberg & Hunt, LLP, Beaumont, for appellee.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

PER CURIAM.

In a suit filed by Floyd Dixon against First National Acceptance Company, Michael Bramble and Roxanne Bramble, the trial court found lack of consideration for a real estate lien note and deed of trust, found a subsequent transfer to be a partial assignment and the transferee to be subject to defenses against enforcement of the note and deed of trust, set aside a foreclosure sale, and voided the note and lien. First National Acceptance Company raises three issues in its appeal. Because we find the indorsement of the promissory note was not a partial assignment, we reverse the trial court’s judgment.

First National buys “B Paper” loans made by persons with inferior credit. Rather than buy the entire note, First National purchases a stream of payments in what it calls a “partial transaction.” The controversy involves a promissory note, in the amount of $60,000 payable in monthly installments of $653.97 at 10.25% interest, secured by a deed of trust lien on business property of Dixon’s located on Washington Boulevard. Before making its offer, the appellant’s analyst conducted a telephone interview with a person claiming to be Dixon, and verified the information provided by Bramble. Bramble and First National executed an agreement, titled “Purchase and Sale Agreement TX Deed of Trust Partial Purchase Program,” in which First National bought the next 60 installments of the note for $26,790.11. After closing costs, Bramble received a check for $25,635.07. On November 29, 1999, the Brambles executed an indorsement that stated “Pay without recourse to the order of First National Acceptance Company.” The indorsement was physically attached to the note. Thus, the in-dorsement purported to convey the entire note to the appellant, although First National had purchased only 60 payments. According to First National’s corporate representative, had the 60 notes been paid according to the terms of the note, there would have been $30,000 left owing and the note would have “reverted” to Bramble. First National would have received a 16.1 percent return. First National received payments of $1,200.00 and $3,807.62 in May and July 2000, but eventually foreclosed on the property. First National purchased the property for $60,000 at the February 2001 trustee’s sale. Under the terms of the contract, Bramble may be entitled to some of the proceeds on resale of the property by First National. Any rights of the Brambles to any proceeds from any subsequent sale of the land are subject to the claims and defenses of Dixon in this lawsuit.

Floyd Dixon and Michael Bramble were friends. Bramble always talked about business, but Dixon claimed they had no business transactions other than Bramble occasionally assisting at Dixon’s restaurant, and a $2,000 loan Bramble made to Dixon in 1996 in connection with the operation of the restaurant. That loan was secured by a lien on the property involved in this litigation. Dixon testified that he repaid that loan. Dixon did not recall having signed the note and deed of trust in question, but did recall having given Bramble a power of attorney because Bramble was in the process of trying to sell the property for Dixon. Dixon testified, “And I signed some notes, you know, for — to try to get him to sell my property.” He added, “And I was in the cafi one day and I signed some papers, a lot of papers, for Mike.” Bramble dealt in real estate, and Bramble told Dixon that there were a lot of people overseas who wanted to buy American property, and that he thought he could sell the property for $250,000. The property was worth approximately $80,000. Dixon did not recall having spoken to the appellant’s loan analyst. Dixon admitted he received $4,000 of the proceeds from the Bramble/First National transaction. When Dixon started receiving late payment notices from First National, he knew what they were talking about because he had discussed it with Bramble and he had received “a phone call about the loan that Mike and I had together.” He took the bills to Bramble, who told Dixon he would “tae care of it.” When Bramble did not take care of it, Dixon called First National. After Dixon and his wife Carol confronted Bramble, the Dixons made a $1,200 payment to First National.

Carol Dixon testified that she found out about the note in June, and Dixon told him “that was something concerning Michael.” She agreed to pay two payments if Bramble would “take care of the rest.” Later that same month, she was unable to refinance her car because the note appeared on her credit.

Michael Bramble testified that he is a Canadian citizen with some university education. For six months he “had a mortgage company” with a person who possessed a broker’s license, and understood the mortgage industry. He had a conviction for fraud in connection with an immigration consulting service he ran. Bramble admitted that no consideration passed for the note and deed of trust in the Dixon/Bramble transaction. Bramble claimed Dixon executed the papers in 1998 in order to “protect his business from his wife Carol.” Bramble claimed he and Dixon were renovating another property, that he told Dixon they could “apply for mortgage on the note” and use the money to fix the other building. Bramble also claimed that the “McFaddin Street” property was in Bramble’s name because Dixon did not want Carol Dixon to be a part of it. According to Bramble, Dixon was aware of what he was doing from the start, and the loan analyst did talk to Dixon. Roxanne Bramble wrote Dixon a check for $4,000 a few days after Bramble received the proceeds from First National, and Bramble forgave the $2,000 loan. In order to pay the money back to First National, they had to turn the other property, in which he had invested $12,000 of the money he obtained selling the note to the appellant. Roxanne made the $3,307.62 payment to First National. Unfortunately, while Bramble was in Buffalo, the City tore down the McFaddin Street building. Carol then found out, and Dixon stopped cooperating. Bramble complained that First National failed to notify him that they were foreclosing, although he is a part owner of the note.

Attached to the note is an indorsement, “without recourse” but otherwise unqualified. The contract between First National and Bramble reveals that First National paid $26,790.11 for the next 60 payments due on a $60,000 note with a $56,421.38 balance. The parties agree the Dixon/Bramble transaction was a sham and no real consideration existed for the $60,000 note. There is no evidence that First National was aware of the true situation. The trial court found: (1) Bramble transferred only 60 payments of the $60,000 note, not the entire note, and as a result First National became a partial assignee of the note with Michael Bramble; (2) as a partial assignee First National was not a holder in due course; (3) Bramble was not entitled to payment from Dixon; (4) therefore, First National was not entitled to enforce the note or the lien against Dixon. In its first issue, First National argues the trial court erred in holding it was a partial assignee rather than a holder in due course. First National contends that it proved as a matter of law it obtained the note and deed of trust from the original payee, Michael Bramble, joined pro forma by his wife, Roxanne Bramble, paid value for the instrument, and had no notice of any defenses claimed by the maker, Floyd Dixon.

First National had actual possession of a note that had been indorsed to it. Therefore, the appellant was a “holder.” See Act of May 28, 1995, 74th Leg., R.S., ch. 921, § 2, 1995 Tex. Gen. Laws 4626 (amended 1999, 2008)(current version at Tex. Bus. & Com.Code Ann. § 1.201 (Vernon Supp.2004)). The holder of an instrument is a “holder in due course” if:

(1) the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and (2) the holder took the instrument:
(A) for value;
(B) in good faith;
(C) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series;
(D) without notice that the instrument contains an unauthorized signature or has been altered;
(E) without notice of any claim to the instrument described in Section 3.306; and
(F) without notice that any party has a defense or claim in recoupment described in Section 3.305(a).

Tex. Bus. & Com.Code Ann. § 3.302(a) (Vernon 2002).

If Dixon has a defense, the note cannot be enforced by one not a holder in due course. The trial court found that First National was not a holder in due course because tbe transfer was a partial assignment. Negotiation is transfer of possession of an instrument by a person other than the issuer to a person who thereby becomes its holder. Tex. Bus. & Com. Code Ann. § 3.201(a) (Vernon 2002). Negotiation of an instrument not payable to bearer requires transfer of possession of the instrument and indorsement by the holder. Tex. Bus. & Com.Code Ann. § 3.201(b) (Vernon 2002). An indorsement is “a signature, other than that of a signer as maker ... that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument, (ii) restricting payment of the instrument, or (iii) incurring indorser’s liability on the instrument....” Tex. Bus. & Com.Code Ann. § 3.204 (Vernon 2002). “[A] signature and its accompanying words is an indorsement unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than in-dorsement. For the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.” Id. “An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.” Tex. Bus. & Com.Code Ann. § 3.203(a) (Vernon 2002). “If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this chapter and has only the rights of a partial assignee.” Tex. Bus. & Com.Code Ann. § 3.203(d) (Vernon 2002).

The crucial issue for the appellant’s status as a holder in due course is whether it is merely a partial assignee under Section 3.203(d). First National argues the in-dorsement itself is what controls, and the legal effect of its transaction was to make First National the owner of the note with Michael Bramble having only a contingent future interest in the remaining payments due. Dixon contends that Bramble purported to transfer only 60 of the installments payable under the note. In support of his contention Dixon relies upon the comment to UCC Section 3-203 and its reference to former UCC Section 3-202(3).

The Uniform Commercial Code Comment to Section 3-203 states the following:

5. Subsection (d) restates former Section 3-202(3). The cause of action on an' instrument cannot be split. Any in-dorsement which purports to convey to any party less than the entire amount of the instrument is not effective for negotiation. This is true of either “Pay A one-half,” or “Pay A two-thirds and B one-third.” Neither A nor B becomes a holder. On the other hand an indorsement reading merely “Pay A and B” is effective, since it transfers the entire ' cause of action to A and B as tenants in common. An indorsement purporting to convey less than the entire instrument does, however, operate as a partial assignment of the cause of action. Subsection (d) makes no attempt to state the legal effect of such an assignment, which is left to other law. A partial assignee of an instrument has rights only to the extent the applicable law gives rights, either at law or in equity, to a partial assignee.

Tex. Bus. & Com.Code Ann. § 3.203 cmt. 5 (Vernon 2002). Former Section 3.202(c) provided: “An indorsement is effective for negotiation only when it conveys the entire instrument or any unpaid residue. If it purports to be of less it operates only as a partial assignment.” Act of May 25, 1967, 60th Leg., R.S., ch. 785, § 1, 1967 Tex. Gen. Laws 2343, 2417, amended by Act of May 28, 1995, 74th Leg., R.S., ch. 921, § 1, 1995 Tex. Gen. Laws 4582, 4588.

Dixon argues the entire Bramble/First National transaction must be considered in determining whether the indorsement is a partial assignment. In support of his argument, the appellee relies upon Business and Commerce Code Section 3.117, which provides as follows:

“[T]he obligation of a party to an instrument to pay the instrument may be modified, supplemented, or nullified by a separate agreement of the obligor and a person entitled to enforce the instrument, if the instrument is issued or the obligation is incurred in reliance on the agreement or as part of the same transaction giving rise to the agreement. To the extent an obligation is modified, supplemented, or nullified by an agreement under this section, the agreement is a defense to the obligation.”

Tex. Bus. & Com.Code Ann. § 3.117 (Vernon 2002).

To support his argument that the in-dorsement operated as a partial assignment because Bramble’s contemporaneously executed agreement to sell the next 60 payments due on the promissory note purported to transfer less than the entire note, Dixon relies upon two cases: First Valley Bank v. First Sav. and Loan Ass’n of Cent. Ind., 412 N.E.2d 1237 (Ind.Ct. App.1980), and Lipkowitz & Plaut v. Affrunti, 95 Misc.2d 849, 407 N.Y.S.2d 1010 (Sup.Ct.1978). In First Valley Bank the issue was whether a bank intended an unqualified indorsement on a mortgage note to be without recourse. Id. at 1241-42. The court noted “that as between an endorser and his immediate endorsee, the transaction is to be viewed as a whole, as an ordinary contract.” Id. at 1242. The words “without recourse” appeared on neither document, and the court held that words of assignment in the assignment contract did not affect the character of the unqualified endorsement. Id. at 1243. Here, the contract between Bramble and First National does not mention the in-dorsement of the note, other than to provide for cancellation should Bramble fail to deliver and assign the Dixon note and deed of trust.

In Lipkowitz, a man named Gray executed a collateral assignment and indorsed four notes to the first secured party. Lipkowitz, 407 N.Y.S.2d at 1011. While the notes were in the possession of the first secured party, Gray executed a collateral assignment to the second secured party. Id. at 1012. Upon payment of the amount owed to it, the first secured party transferred possession of the note to the second secured party without indorsement. Id. The parties executed written acknowledgments of the assignment of the notes and pledge agreements. Id. In deciding when the second secured party acquired a perfected security interest vis vis a tax lien, the court found that Gray “did not irrevocably divest himself of the ultimate right to all of the proceeds of said notes” but “retained ownership of all proceeds not required to satisfy the ... obligation [to the first secured party].” Id. at 1013. The court ruled that the transaction from Gray to the first secured party created only a partial assignment of the proceeds, that the limited interest acquired by the first secured party was a security interest, and that Gray retained “a right to future performance” on the notes. Id. As the interest retained was a property interest, Gray retained a claim or demand capable of being collaterally assigned to the plaintiff in the case, the second secured party, who then sought acceleration. Id. The court ruled that the second secured party was an assignee of a collateral interest in the proceeds of the notes and was a holder of a security interest in the notes, but was not a holder of the negotiable instruments because the notes had never been indorsed to it. Id. Thus, the plaintiff became an assignee of the notes by virtue of the instrument of assignment, and upon receipt of the notes without indorsement became a transferee, but was not a holder and therefore did not possess the right to accelerate the notes. Id. The court decided that the second secured party was entitled to the payments and interest due to date, but was not entitled to accelerate the note “until such time as [the first secured party’s] indorsement is procured.” Id. at 1015. Thus, the case turned on the lack of an indorsement. Here, the note has been endorsed to the appellant. The “Purchase and Sale Agreement” clearly contemplated that First National would have the sole power to enforce the note, to foreclose, and to dispose of the property after foreclosure.

According to Dixon, the “Purchase and Sale Agreement” modified the indorsement and prevented negotiation of Dixon’s note. A similar issue was presented to the court in a pre-code case, Slay v. Wheeler, 84 S.W.2d 841 (Tex.App.-Eastland 1935, writ ref'd). Wheeler executed a $942.56 note payable to the order of a party who indorsed the note to Slay. Slay, 84 S.W.2d at 841. A written agreement executed with the indorsement stated that “the first maturing $500 of said note is owned by the said Frank C. Slay, and that the last maturing installments of said note of $442.56 is owned by [the indorser] ....” Id. at 841-42. Upon payment of the first-maturing $500, Slay was to reconvey to the indorser the unpaid balance of the note. Id. at 842. Slay sued Wheeler on the entire note, and Wheeler asserted a defense of duress to the $942.56 note. Id. The court held that to be effective an indorsement of a negotiable instrument must be an indorsement of the entire instrument. Id. at 843. The court found the payee had indorsed the note as it was in form “strictly in accordance with the character of indorsement required for negotiable instruments.” Id. Holding “it cannot be regarded as a split indorsement” because neither the note nor the indorsement indicated an attempt to transfer any partial interest in the note, “[a]s thus indorsed and transferred, the makers thereof could have paid the entire amount of the note to Slay with perfect safety against the rights of [the indorser] to make any claim whatever against [the maker].” Id. at 843-44. The court reasoned that certain rights and beneficial interests were retained by the transferors in the event of certain contingencies, a situation analogous to a collateral assignment of a security interest for an obligation smaller than the amount of the note where the transferee retains the surplus for the benefit of the transferor. Id. at 844. The court held:

[t]he authorities cited by the appellees deal strictly with “split indorsements,” carried by the note itself. Such indorse-ments undoubtedly affects the negotiability of the instrument. But a collateral agreement evidencing (1) merely a divided interest in the proceeds of the note, (2) that the beneficial interest, if any, of the transferor is wholly contingent in nature, and (3) subordinate to that of the transferee, does not, in our opinion, affect the negotiability of the note. It affects neither the form of the negotiable instrument nor the indorsements thereof.

Id. The court held Slay could recover $500 plus interest and rendered judgment for foreclosure of the vendor’s lien on the real property. Id. at 845.

The agreement between Bramble and First National does not alter Bramble’s indorsement. Bramble indorsed the note with the following language: “Pay without recourse to the order of First National Acceptance Company.” That act is an in-dorsement under Business and Commerce Code Section 3.204, and together with possession of the document is sufficient to transfer the instrument under Section 3.203 and for negotiation under Section 3.201 and made First National a holder. The only basis asserted by Dixon for denying First National holder in due course status is Section 3.203(d), which we hold does not apply in this case. Therefore, First National is a holder in due course as a matter of law, and the trial court erred in holding First National was a mere as-signee.

We sustain the first issue raised by the appellant. The remaining issues were raised in the alternative; therefore, we decline to address those issues as their resolution is not necessary to the disposition of the appeal. We neither address nor disturb the findings regarding Bramble, who did not appeal, nor the merits of any claims or defenses at issue in this litigation other than issue one. The rights of the parties are so interwoven as to require reversal of the entire judgment. Tex.R.App. P. 25.1. We therefore reverse the judgment of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Various enforcement rights and defenses are affected by the presence or absence of status as a holder in due course. For instance, "[a] person taking an instrument, other than a person having rights of a holder in due course, is subject to a claim of a property or possessory right in the instrument or its proceeds, including a claim to rescind a negotiation and to recover the instrument or its proceeds.” Tex. Bus. & Com.Code Ann. § 3.306 (Vernon 2002). "A person having rights of a holder in due course takes free of the claim to the instrument.”
      Id. The right to enforce the obligation of a party to pay an instrument is subject to a defense of the obligor based on "duress ... or illegality of the transaction that, under other law, nullifies the obligation of the obligor” or "fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms_” Tex. Bus. & Com. Code Ann. § 3.305(a)(1) (Vernon 2002). "The right of a holder in due course to enforce the obligation of a party to pay the instrument is subject to defenses of the obligor stated in Subsection (a)(1)_” Tex. Bus. & Com.Code Ann. § 3.305(b) (Vernon 2002). Negotiation, however, is effective even if obtained by fraud, duress, or mistake. Tex. Bus. & Com. Code Ann. § 3.202(a)(2) (Vernon 2002). "To the extent permitted by other law, negotiation may be rescinded or may be subject to other remedies, but those remedies may not be asserted against a subsequent holder in due course or a person paying the instrument in good faith and without knowledge of facts that are a basis for rescission or other remedy.” Tex. Bus. & Com.Code Ann. § 3.202(b) (Vernon 2002).

      . Article 5934, section 32 of the Negotiable Instruments Act provided: "The indorsement must be an indorsement of the entire instrument. An instrument which purports to transfer to the indorse a part only of the amount payable, or which purports to transfer the instrument to two or more endorsees severally, does not operate as a negotiation of the instrument. But where the instrument has been paid in part, it may be indorsed as to the residue." Slay, 84 S.W.2d at 843.


author: Chief Justice MORRISS.

text:
    In the Matter of the MARRIAGE OF Ella Mae Ferguson JONES and Scott Ferguson and in the Interest of Tracy Ferguson, Minor Child.
    No. 06-04-00006-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 8, 2004.
    Decided Jan. 4, 2005.

      Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellant.
    Harvey G. Joseph, Law Office of Harvey G. Joseph, Dallas, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

Some twenty-four years after the divorce of Ella Mae Ferguson Jones and Scott Ferguson, their divorce decree has been supplemented by a quartet of QDROs in a quarrel over Ferguson’s retirement funds. We are presented with the resulting quandary.

The 1980 divorce decree between Jones and Ferguson, predating QDROs, described generally how Ferguson’s retirement funds were to be divided once he retired. As Ferguson neared retirement, Jones’ efforts to obtain her desired portion of those funds has resulted in four successive QDROs. From the trial court’s last QDRO (QDRO Four), providing Jones seven forty-sevenths of Ferguson’s retirement funds, Jones appeals. We affirm QDRO Four because we hold (1) we have jurisdiction to decide this appeal, and (2) QDRO Four properly clarified the intent of the original division of the retirement funds. First, we examine the contents of the decree and the four QDROs. Then we address the issues.

The Orders

The April 18, 1980, divorce decree awards Jones that percentage of Ferguson’s retirement funds “equal to seven (7) divided by the number of years worked for the State of Texas, upon his retirement.” This language was as clear as could be expected, considering that Ferguson’s retirement date was then unknown. As originally drafted, the decree bore a numerator of twelve and one half, but that was changed by hand to “seven.”

QDRO One, dated October 2, 2002, provided that Ferguson’s retirement distribution was to be multiplied “by a fraction, the numerator of which is 7 and the denominator of which is the total number of creditable years of service that [Teachers’ Retirement System] determines has been acquired by [Ferguson] at the time of distribution.” This QDRO was entered at Jones’ request and grants her precisely the relief she requested, using her language. No appeal was taken from that order, and no other motion was filed that would extend the plenary power of the trial court. QDRO One thus became final thirty days later, November 2, 2002.

Each of QDRO Two, dated December 23, 2002, and QDRO Three, dated April 17, 2003, spends in excess of a fully typewritten page describing how Ferguson’s retirement is to be divided. Neither QDRO Two nor QDRO Three can be correctly described as clarifying either the original decree or QDRO One, as the two later QDROs provide markedly different and more complex division formulas and address new and previously unstated conditions and situations.

QDRO Four, dated December 22, 2003, provided that Jones be paid seven forty-sevenths of Ferguson’s retirement benefit. QDRO Four is the subject of this appeal.

1. We Have Jurisdiction To Decide this Appeal

Ferguson first suggests that no appeal can be taken from QDRO Four. He reasons that QDRO Two (signed December 23, 2002) constituted the final judgment of the trial court and that the motion for new trial thereafter filed was untimely (which would be true), thus the trial court’s plenary power terminated before any further orders could be entered, and any subsequent order is a nullity.

A trial court has continuing jurisdiction to enter a QDRO permitting payments of retirement benefits when they become payable. See Tex. Fam.Code Ann. § 9.101 (Vernon 1998). The trial court may render such an order if none has been previously entered. See Tex. Fam.Code Ann. § 9.103 (Vernon 1998). If the QDRO in place does not “satisfy the requirements of a [QDRO] ... the court retains continuing, exclusive jurisdiction over the parties and their property to the extent necessary , to render” one. Tex. Fam.Code Ann. § 9.104 (Vernon 1998).

Although these sections allow a trial court to create a QDRO where none exists, or to correct language in a QDRO that renders it defective, they do not permit a court to substantively change a property division. A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce. Tex. Fam.Code Ann. § 9.007(a) (Vernon 1998); Marshall v. Priess, 99 S.W.3d 150, 157 (Tex.App.-Houston [14th Dist.] 2002, no pet.); see also McPherren v. McPherren, 967 S.W.2d 485, 490 (Tex.App.-El Paso 1998, no pet.); Dechon v. Dechon, 909 S.W.2d 950, 956 (Tex.App.-El Paso 1995, no writ). Altering the substantive division of property made in a final divorce decree is beyond the power of the trial court, and such a change is unenforceable. Tex. Fam. Code Ann. § 9.007(b) (Vernon 1998); In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex.App.-Texarkana 2003, pet. denied).

Section 9.007 of the Texas Family Code is typically read in tandem with Section 9.008. See Tex. Fam.Code- Ann. § 9.008 (Vernon 1998). Under Section 9.008, a QDRO that is not defective, but is so abstruse as to be difficult to implement or enforce, is treated as requiring clarification, and is not handled under the subchapter controlling the creation or implementation of a QDRO. Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex.2003); see Marshall, 99 S.W.3d at 155-62.

Thus, Section 9.103 of the Texas Family Code allows creation of a QDRO, Section 9.104 allows correction of a QDRO that is defective, and Section 9.008 allows clarification of a QDRO that is technically adequate but for some reason needs to be made clearer.

We conclude QDRO Four clarifies QDRO One. The purpose of clarification is to enforce compliance with the original division of property. In this case, QDRO Four clarified the benefit division of QDRO One after Ferguson’s retirement date occurred and the exact formula became known. Therefore, under Section 9.008, clarification was available, and the trial court had the authority to render QDRO Four.

QDRO One ordered payment of seven divided by the years of creditable service earned at the time of distribution. Motions to clarify or otherwise change the outcome were filed. QDRO One was not completely clear, because the complete numbers were not supplied. QDROs Two and Three both did much more than just clarify QDRO One, and thus cannot be valid orders of the trial court. QDRO Four provides exact numbers for calculation. Thus, QDRO Four is indeed the final, clarified order, and the appeal is properly before this Court. We now turn to Jones’ issues raised on appeal.

2. QDRO Four Was a Proper Clarification of the Intent of the Original Division of the Retirement Funds

Jones attacks QDRO Four in two principal ways, by attacking its specified numerator, seven, and then attacking the QDRO more generally, but essentially addressing its specified denominator, forty-seven. We address each in turn. Before issuing QDRO Four, the trial court stated in a letter to counsel that, after re-reviewing the pertinent cases, it determined it was required to use the formula — seven forty-sevenths — derived from the original decree. We agree.

a. The Numerator

Jones contends the trial court erred in QDRO Four by using the wrong number as the numerator. The original decree bears a typewritten numerator, “twelve and one half,” which Jones says was mysteriously struck by hand, and “seven” substituted in its place. Jones points to her own 1980 testimony to show twelve and one half was the numerator she “agreed to,” and says she did not remember the number seven being discussed or written into the judgment. She argues that the handwritten numerator in the decree was necessarily invalid and should not have been used by the trial court in “clarifying” the decree with QDROs One or Four.

But, while the change to the decree is obvious, there is no evidence the change was made by anyone other than the trial court while it had the power to do so. Therefore, the presumption of the decree’s validity stands, with “seven” as the numerator. See Hart v. Calkins Mfg. Co., 623 S.W.2d 451, 452 (Tex.App.-Texarkana 1981, no writ) (judgment with penned edit, presumed valid); see also Cook v. Cook, 888 S.W.2d 130, 132 (Tex.App.-Corpus Christi 1994, no pet.) (entered judgment is presumptively as intended by court).

Also, a party to a suit is charged by law with notice of all orders and judgments rendered in the suit. K & S Interests, Inc. v. Tex. Am. Bank/Dallas, 749 S.W.2d 887 (Tex.App.-Dallas 1988, writ denied). The traditional rule has been that, once a trial court properly gains jurisdiction over a party, that party is expected to keep informed of the proceedings and any judgment rendered in the case. Id.; Thomason v. Freberg, 588 S.W.2d 821, 825 (Tex.Civ.App.-Corpus Christi 1979, no writ). Although this typically addresses whether a party has notice of proceedings in a case, it also applies, necessarily, to the contents of the judgment.

If an appeal is not timely perfected from a divorce decree, res judicata bars a subsequent collateral attack on the decree. See Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex.1990). The decree is final and has been for over twenty years. We are neither authorized by law nor inclined by equity to authorize a collateral attack on its explicit wording under these facts. Therefore, QDRO Four’s numerator “seven” stands.

b. The Denominator

Jones next argues that QDRO Four is improper because it does not effectuate the terms of the decree. As we have noted, the decree generally defines the denominator as “the number of years [Ferguson] worked for the State of Texas, upon his retirement.” Even when we overcome the inapt reference to Ferguson’s working for the State, there is still a quandary regarding the denominator. Ferguson actually worked as a Texas teacher, and thus accumulated service under the Texas Teachers’ Retirement System, for thirty-seven years. He had previously worked for ten years as a teacher in Kansas, so he was entitled to, and did subsequently, purchase ten years’ additional service credit. His retirement benefits are thus based on forty-seven years of creditable service.

Jones wants the formula’s denominator reduced to reflect only the actual time Ferguson worked in Texas, thus excluding the ten years’ creditable service he purchased. But, while Jones wants to exclude the ten years from the denominator, she wants to share in Ferguson’s whole monthly benefit — its size enhanced with the additional ten years purchased — rather than share in just the amount payable for his thirty-seven years of Texas school employment.

We will not, and cannot, in this instance, take the decree as Jones suggests, for a number of reasons. The decree refers to the award as being a “percentage of [Ferguson’s] retirement.” It then measures that amount according to the number of years worked. That is simply another way of saying that Jones is entitled to a percentage of Ferguson’s retirement and attempting to define the amount.

QDRO One, in defining the numerator as “seven” and the denominator as the “number of creditable years of service,” was a proper clarification of the decree’s intent. And, even if it was not a proper clarification, it was issued at Jones’ request, employed her requested language, went unchallenged, and became final.

We believe that, in QDRO Four, the trial court correctly expressed the intent of the decree and QDRO One, and thus was correct in defining the denominator as forty-seven, Ferguson’s creditable years of service.

We affirm the judgment of the trial court.

      . At the time of their divorce, Jones and Ferguson had been married twenty-five years, and had lived ten of those years in Kansas and fifteen in Texas.

      . In this opinion QDRO refers to a qualified domestic relations order.

      .Both parties have noted potential difficulties because the record in this case may be incomplete. Jones asked the court reporter to prepare a transcription of an extensive list of possible hearings that may have occurred during the fifteen-month time period that this cause was before the trial court in connection with the four QDROs that were entered. The evidentiary hearing preceding the entry of QDRO Four constitutes the only reporter’s record before this Court. In this particular case, however, even if there were evidentiary hearings that were not transcribed, they are not necessary. Our review in this case is to determine only whether the written QDROs conform to the divorce decree. Although the parties disagree about which number should be used both as numerator and denominator, they do not disagree about what those numbers actually are or the source from which they come. This opinion is decided based on the record before us.

      . We note the decree’s inapt reference to Ferguson’s working "for the State of Texas” and understand it as intending to reference, instead, his working "as a teacher in the State of Texas.”

      . We discuss that change later in this opinion.

      . Clarifying orders may more precisely specify the maimer of carrying out a previously ordered property division so long as the substantive division of the property is not altered. See McPherren, 967 S.W.2d at 490; Dechon, 909 S.W.2d at 956. Clarification also requires a finding, express or implied, that the original form of the division of property lacks sufficient specificity to be enforced by contempt. Tex Fam.Code Ann. § 9.008(b); In re Marriage of Alford, 40 S.W.3d 187, 189 (Tex.App.-Texarkana 2001, no pet.). If a divorce decree is unambiguous, the court has no authority to alter or modify the original disposition of property. Haworth v. Haworth, 795 S.W.2d 296, 300 (Tex.App.-Houston [14th Dist.] 1990, no writ); see McDonald, 118 S.W.3d at 832.

      . Although handwritten changes to contracts are typically initialed to show acceptance by the parties, and while initialing changes to a judgment would be better practice; see Lopez v. State, No. 07-98-0104-CR, 1999 WL 239892 (Tex.App.-Amarillo Apr.23,1999, no pet.) (not designated for publication); we find no requirement that edits to a court's judgment require any initials, even when the judgment is based on an underlying agreement of the parties.

      . We also recognize with some discomfort that, were we to try to enforce the letter of the decree, Jones' share would be "undefined,” as mathematicians say when an attempt is made to divide by zero. Ferguson never worked for the State of Texas, and his retirement is not payable by the State of Texas. He was an educator, and his retirement comes from the Teachers' Retirement Fund. Thus, if we read and enforced that language literally, we would insert a zero in the denominator, and the entire division would thus fail, and the entire division would thus fail.