Burtch v. Burtch

• Citation: 972 S.W.2d 882
• Decision Date: 02 July 1998
• Docket Number: No. 03-97-00615-CV,03-97-00615-CV
• Parties: Lloyd Dale BURTCH, Appellant, v. Jennifer Jo BURTCH, Appellee.
• Court: Court of Appeals of Texas

Page 882

972 S.W.2d 882

Lloyd Dale BURTCH, Appellant, v. Jennifer Jo BURTCH, Appellee.

No. 03-97-00615-CV.

Court of Appeals of Texas Austin.

July 2, 1998.

Michael David Bowles, San Antonio, for appellant.

Frank B. Suhr, New Braunfels, for appellee.

Before POWERS, KIDD and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

This case involves a breach-of-contract claim brought by appellee, Jennifer Jo Burtch, against appellant, Lloyd Dale Burtch, on behalf of the couple's two children, Jessica and Matthew. The issue presented is whether the provisions of an agreed divorce decree regarding child support for the children's college education are enforceable as a contract. The district court held that they were and rendered judgment against Lloyd for the sum of $13,616.79, plus costs and attorney's fees. We will modify the district court's judgment and affirm the judgment as modified.

BACKGROUND

Lloyd and Jennifer were divorced in 1993 in Comal County by an agreed divorce decree. The decree contained provisions requiring the father to pay for expenses related to the children's education beyond high school, as well as their auto-insurance premiums; his financial support was contingent upon the children satisfying certain conditions. Jennifer sued Lloyd after he failed to pay for various expenses of the children. Lloyd claimed the provisions for support beyond high school were not enforceable as a contract, and in the alternative, that he was released from support obligations when Jessica and Matthew did not attend classes full time or maintain their grades. After a bench trial, the trial court found that Lloyd and Jennifer's agreed divorce decree was an enforceable contract that Lloyd had breached. He was held liable for the expenses incurred by both children during the semesters in which they were full-time students. After Jennifer filed a motion for reconsideration, the court found Lloyd additionally liable for economic support during periods in which Jessica had substantially complied with the attendance requirement, but was prevented from complying in full due to specific violations of the contract by her father. The trial court rendered judgment that Lloyd pay the children a total of $13,616.79 plus costs and attorney's fees. The appellant raises nine issues on appeal. He challenges the trial court's jurisdiction to hear the cause, the enforceability of the enforcement provisions as a contract, the sufficiency of the evidence supporting the children's compliance with conditions for support, the court's calculation of support due, and the amount of attorney's fees awarded on appeal.

DISCUSSION

Jurisdiction

We first address the issue raised by the father's eighth point of error, whether this action should have been dismissed for want of jurisdiction. Lloyd claims the Comal County district court, the court that presided over the original divorce proceeding, lacked jurisdiction over the breach-of-contract action. In support of this contention, Lloyd cites two cases that hold once a child reaches the age of eighteen, the divorce court no longer retains jurisdiction over the subject matter and consequently has no power to enter orders for support. See Birdwell v. Birdwell, 819 S.W.2d 223, 230 (Tex.App.--Fort Worth 1991, writ denied); McCullough v. McCullough, 483 S.W.2d 869, 870 (Tex.Civ.App.--Tyler 1972, no writ). Those cases are inapposite. Birdwell and McCullough concern the enforcement of court-ordered child support provisions. See id. This case, however, is a claim for breach of contract and does not involve any alleged violations of court-ordered child support. Since this is a contract action at law for damages exceeding $500 arising from a final decree of divorce rendered in Comal County, the district court had subject matter jurisdiction. Tex. Const. art. V, § 8; Tex. Gov't Code Ann. § 24.007 (West 1988). Additionally, appellant waived any possible objection to personal jurisdiction by his appearances at the proceedings. We overrule Lloyd's eighth point of error.

Enforceable Contract

We next address the issue of whether the court erred in finding that certain provisions of the decree are contractual, and in the alternative whether the court should have rendered any contractual agreement unenforceable due to its ambiguous terms. The father claims that only parts of the decree are contractual, and specifically not the obligations at issue here.

Absent a contractual agreement, there is no basis for a court to enforce child support for children who have graduated from high school and are over the age of eighteen. See Tex. Fam.Code Ann. § 154.001 (West 1996) (court may order either or both parents to pay child support until child is eighteen years of age or until graduation from high school); Bruni v. Bruni, 924 S.W.2d 366, 367 (Tex.1996). Both Matthew and Jessica were over the age of eighteen during the time periods relevant to this dispute, and the support provision explicitly applies only to expenses incurred after high school. Since there is no statutory obligation, Lloyd cannot be obligated to pay for these expenses unless he is bound by a contract.

Looking at the express language in the decree, it is apparent that both parties intended to make the support provisions in the decree contractually binding. First, the decree states: "The parties have consented to the terms of this decree and stipulated that the provisions for division of assets and liabilities are contractual." We believe that an agreement to pay for college expenses upon the performance of certain conditions is a liability as contemplated by this clause. Second, following the enumeration of the children's expenses beyond high school which the father will pay, the decree states that "[t]he provisions of this article may be enforced by the parties or the child." Lloyd contends the entire provision is an unenforceable acknowledgment of his parental obligations. Were we to interpret it as such, this last sentence would be meaningless. However, we presume that the parties intended every clause to have some effect and that no clause is meaningless. See Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968). We therefore reject the appellant's interpretation. Third and finally, both parties signed the decree under the heading, "APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE." Appellant reminds us that courts should not decide cases based upon the inclusion or omission of "magic words." See Oryx Energy Co. v. Union Nat'l Bank of Tex., 895 S.W.2d 409 (Tex.App.--San Antonio 1995, writ denied). These are not "magic words"; they are significant in determining what the parties intended, and we view them in the light of all the language contained in the decree. Because the decree (1) expressly provides for contractual enforceability of all liabilities ; (2) makes the provisions concerning support beyond high school enforceable by the children and both parties; and (3) was approved and consented to, in form and substance, by both parties, we hold that the provision obligating the father to pay certain educational and car expenses of the children beyond high school is an enforceable contract.

Because the provision is included in the portion of the decree dealing with child custody, visitation, and court-ordered child support, the father claims it is "child support" and does not satisfy section 154.124(c) of the Texas Family Code. ¹ See Tex. Fam.Code Ann. 154.124(c) (West 1996). We disagree. As we have just stated, the language used in the decree shows that both parties intended the provision to be contractually binding. Section 154.124(c) requires only that the agreement provide for contractual enforceability in order to be binding as a contract. Since the parties used language showing an express intent to form a binding contract, section 154.124(c) is satisfied, and this is an enforceable contract. See Elfeldt v. Elfeldt, 730 S.W.2d 657, 658 (Tex.1987) (parties to agreement concerning support of nondisabled child over eighteen binding on both parties if expressly contractual); see also Bruni, 924 S.W.2d at 368 (agreement for postmajority child support is enforceable contract where agreement said it would survive court's judgment and marriage decree); Madnick v. Doelling, 713 S.W.2d 799, 801 (Tex.App.--El Paso 1986, writ ref'd n.r.e.) (court-ordered child support agreement which provided for enforcement of "covenants" by children is enforceable contract).

Lloyd claims that even if we find the support provisions are contractual, they are nevertheless void because they are ambiguous. However, even if a court finds certain terms ambiguous, a contract may still be enforceable if it can be interpreted using standard rules of construction to determine the parties' intent. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). "An ambiguity does not arise simply because the parties advance conflicting interpretations of the contract." Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). Instead, we look to the contract as a whole, in light of the circumstances surrounding its formation, to determine whether there is ambiguity. Id. In claiming the contract is ambiguous, Lloyd directs our attention to the requirement that he pay for "any and all reasonable educational expenses." He fails to consider the sentence which immediately follows: "This obligation will include tuition, books, and room and board ... and other charges normally related to such education." Since the only expenses for which the appellee seeks to be reimbursed are tuition, books, room and board, the language of the contract explicitly and unambiguously addresses the expenses at issue.

The second phrase that Lloyd claims is ambiguous is the condition that each child make "satisfactory progress and maintains at least a 'C' or equivalent grade-point average ... and is otherwise in good standing with the...