Bartlett v. Bartlett

• Decision Date: 30 April 2015
• Docket Number: NO. 14–14–00058–CV,14–14–00058–CV
• Citation: 465 S.W.3d 745
• Parties: William Wade Bartlett, Appellant v. Lori Lee Bartlett, Appellee
• Court: Texas Court of Appeals

465 S.W.3d 745

William Wade Bartlett, Appellant

v.Lori Lee Bartlett, Appellee

NO. 14–14–00058–CV

Court of Appeals of Texas, Houston (14th Dist.).

Majority and Concurring Opinions filed April 30, 2015

Jason Larman, Conroe, TX, Claude C. “Sonny” Phillips, Humble, TX, Anna Frase, Houston, TX, for Appellant.

Janice L. Berg, John F. Nichols Sr., Houston, TX, for Appellee.

Panel consists of Chief Justice Frost and Justices Boyce and McCally.

OPINION

Sharon McCally, Justice

Appellee Lori Lee Bartlett sued appellant William Wade Bartlett for breach of contract after the couple divorced pursuant to an agreed decree and William refused to reimburse Lori for their son's college expenses. After a bench trial, the court awarded Lori damages for the amounts she spent on their son's college expenses during the son's first semester, as well as attorney's fees. William challenges the trial court's judgment in five issues, contending that the trial court abused its discretion by awarding Lori the college expenses because (1) the college-expense provision of the decree is void; (2) the college-expense provision is not enforceable as a contract; (3) enforceability of the provision is precluded by statute; (4) William's performance is excused because his son committed the first material breach by failing to maintain a cumulative “C” grade point average; and (5) the trial court's award of health insurance and uninsured healthcare expenses is precluded by statute.

We overrule William's first, second, third, and fifth issues because the trial court correctly concluded that the college-expense provision is not child support under the Family Code. We overrule William's fourth issue because William waived this defense, and regardless, the record supports a deemed finding that any breach was not material.

I. Background

Lori and William signed an agreed final decree of divorce. They had two children of the marriage, an elder son and younger daughter. In Part 7 of the decree, “Conservatorship and Support,” under a sub-part labeled “Child Support,” William was ordered to pay Lori $1,800 per month until one of several conditions was met and then $1,500 per month until another condition was met.¹

Part 8 of the decree, “Division of Marital Estate,” addressed the properties and debts of Lori and William, the use and sale of the familial residence, contractual alimony, life insurance, federal income taxes, and “Education Beyond High School.” Under the “Education Beyond High School” provision, the parties agreed as follows:

It is ordered and decreed that William Wade Bartlett shall pay 100% of all reasonable education expenses incurred to send each child either to college or to technical, vocational, or business school of his approval, provided the child is a full-time student and maintains at least a “C” or equivalent grade point average toward the completion of either a college bachelor's degree or a technical, vocational, or business school diploma. This obligation includes tuition, activities fees, laboratory fees, books, room and board, health insurance and related uninsured healthcare expenses, college dues and expenses, and other charges normally related to such education. This obligation may be enforced by the parties or the child.

The son began college in August 2012. Lori sued William in September 2012 for breach of contract because William refused to pay for the son's college expenses for the Fall 2012 semester. Initially, Lori paid for the college expenses. Then, William paid the tuition for the Spring and Summer 2013 semesters. The trial court admitted Plaintiff's Exhibit 7, titled “Amounts Paid by Parties for 2012–2013 School Semester,” which itemized the expenses as follows:

Amounts Paid by Lori Bartlett, 2012–2013Amounts Paid by Wade Bartlett, 2012–2013
Application Fees for Trinity	$2,688.40	Tuition Paid 12/7/2012	$10,130.99
Tuition Fall, Paid 8/3/2012	$2,904.53
Tuition Fall, Paid 9/3/2012	$2,904.53
Tuition Fall, Paid 10/4/2012	$2,904.53
Tuition Fall, Paid 11/5/2012	$650.00
Textbooks for Fall	$350.00
Parking Pass for Fall	$73.00
Move–In Expenses	$1,470.52
Dorm Furnishings	$821.99
Textbooks for Spring	$350.00
Parking Pass for Spring	$73.00
Total	$15,190.50	Total	$10,130.99

The son testified that after the Spring 2013 semester, his cumulative grade point average (GPA) dropped below a “C” average to 1.929. But after finishing the Summer 2013 semester, his cumulative GPA was at least a “C” average.

The trial court signed a final judgment in Lori's favor, finding that William breached the college-expense provision of the agreed decree and that the son's “grade point average for his freshman year was at least a ‘C’ average.” The court ordered William to reimburse Lori for the amounts she paid “per Exhibit P–7, attached hereto as Appendix 2, and incorporated herein by reference as though fully set forth herein.” Upon William's request, the court signed findings of fact and conclusions of law, awarding Lori $15,190.50. The court concluded that the college-expense provision was “not a provision for child support under Chapter 154 of the Texas Family Code.” The court also concluded that “the parties intended the provision to be enforceable as a contract, as evidenced by their signatures and agreement.”² William appealed.

II. Child Support

William's first, second, third, and fifth issues on appeal are premised on the notion that the college-expense provision is one for “child support.” However, following binding precedent from this court, we hold that the trial court did not abuse its discretion by concluding that the son's college expenses are not child support. First we explain that the college expenses are not child support. Then we address each of William's issues in turn.

A. College Expenses Are Not Child Support

In the context of determining venue, this court has held that a “payment which is not to be made until after the child reaches the age of 18 is not child support.” Busbey v. Busbey, 619 S.W.2d 472, 475 (Tex.Civ.App.–Houston [14th Dist.] 1981, no writ) (holding that the adult son's claim for an $800 money judgment was not a claim for child support when it was based on the father's failure to release the amount of a savings account to the son when he turned 18, pursuant to the marriage settlement agreement). Last year, the Dallas Court of Appeals reaffirmed this understanding of the Family Code: “Child support, by definition, applies only to a child under the age of 18 years who has not yet graduated from high school or a high-school equivalent program.” In re W.R.B., No. 05–12–00776–CV, 2014 WL 1008222, at *4 (Tex.App.–Dallas Feb. 20, 2014, pet. denied). The court distinguished child support from “post-majority support,” which “applies only to a non-disabled child who is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program.” Id. (citing Tex. Fam.Code Ann. §§ 154.001(a), 154.002(a), 154.006(a) ). The court held unequivocally that “post-majority support is not child support.” Id. Consequently, the current version of Section 154.124(c), which prohibits enforcement of child support by a breach of contract action,³ did not apply to the mother's claim for post-majority expenses (such as college expenses). See id. at *1, *4.

William relies heavily on the Texas Supreme Court's decisions in Elfeldt and Bruni. However, the court in those cases applied Section 154.124(c)'s predecessor statute to post-majority payments that were continuations of preexisting child support obligations. See Bruni v. Bruni, 924 S.W.2d 366, 367 (Tex.1996) (applying predecessor statute when the parties entered into an agreement for child support to continue until each child reached the age of twenty-one; agreement itself was enforceable as a contract); Elfeldt v. Elfeldt, 730 S.W.2d 657, 658 (Tex.1987) (applying predecessor statute to an “agreed child support modification order,” which continued the father's periodic child support payments until the children completed four years of college; agreed order was not enforceable as a contract). Those types of orders for continued support are different from the college-expense provision here, which was not included in the “child support” part of the decree. William's periodic child support payments terminate under separate and distinct terms, whereas the college-expense provision was an independent contractual promise included as part of the “Division of Marital Estate.”

William also relies on an Amarillo Court of Appeals decision that involved a materially different decree. See Huffines v. McMahill, No. 07–10–00029–CV, 2010 WL 2836980 (Tex.App.–Amarillo July 20, 2010, no pet.) (mem.op.). Under the agreed decree's “Support” provision, the trial court ordered that “neither party is to pay child support,” but the decree directed the father to provide health insurance and sums for clothing, sports activity fees, school fees, future vehicle needs, and half of the child's unreimbursed medical expenses and college tuition. See id. at *1. The father later refused to pay for half of the child's college tuition, and the mother sued for breach of contract. Id. Of key importance to the Amarillo Court's conclusion that the college-expense provision was child support, the provision was found in the “support” section of the decree and various expenses were listed in lieu of periodic payments of support. See id. at *2. Unlike Huffines, the Bartletts' decree included a separate section for child support that required William to make periodic payments, and the college-expense provision was part of the decree's section regarding division of the marital estate.

Finally, William argues for the first time in his reply brief on appeal that Lori's filing of a post-judgment petition for enforcement was a judicial admission that she sought collection of a child support obligation. William waived this argument by his failure to object to the introduction of contrary evidence at trial. See, e.g., Houston First Am. Sav. v....