Dorshaw v. Dorshaw, 2372

• Decision Date: 13 May 1982
• Docket Number: No. 2372,2372
• Citation: 635 S.W.2d 783
• Parties: Stephen A. DORSHAW, Appellant, v. Susan C. DORSHAW, Appellee. cv.
• Court: Texas Court of Appeals

Page 783

635 S.W.2d 783

Stephen A. DORSHAW, Appellant, v. Susan C. DORSHAW, Appellee.

No. 2372cv.

Court of Appeals of Texas, Corpus Christi.

May 13, 1982.

Rehearing Denied June 3, 1982.

John W. Lee, John W. Lee & Associates, Houston, for appellant.

Louis A. Crapitto, Houston, for appellee.

Before NYE, C. J., and UTTER and KENNEDY, JJ.

OPINION

KENNEDY, Justice.

This appeal is taken from an order of the 311th District Court, Harris County, modifying a decree of divorce. Appellee, appellant's ex-wife and managing conservator of their minor daughter, filed her motion to modify said decree, (incorporated into which is an agreement providing for child support payments by appellant in the amount of $170.00 per month,) seeking an increase in said payments. The order made subject of this appeal granted appellee's motion, increased appellant's payments to $400.00 per month, and awarded appellee's attorney $750.00 in attorney's fees.

In his first point of error, appellant asserts that the trial court erred in modifying the child support provisions of the agreement, contending that the agreement was contractual in nature and not subject to modification absent a showing of fraud, accident or mistake. In support of this proposition, appellant cites this Court to two cases in which it was held that the trial court was without power to modify agreements similar to the one here in issue decreasing the amount of child support provided for therein, when the managing conservatorship of one or more of the children had been changed from mother to father. Boyd v. Boyd, 545 S.W.2d 520 (Tex.Civ.App.-Houston (1st Dist.) 1976, no writ); Lee v. Lee, 509 S.W.2d 922 (Tex.Civ.App.-Beaumont 1974, writ ref'd n.r.e.). The rule relied upon by appellant is set out in Boyd, supra, thusly:

"A consent judgment which is rendered pursuant to a written agreement becomes a contract between the parties as well as an adjudication between them. The provisions of such a contract, in the absence of fraud, accident or mistake, should not be set aside or modified except by the consent of the parties." 545 S.W.2d at 523.

It appears to us that the adoption by the Legislature of the Family Code mandates a holding on our part that, in a situation such as this, the consent of the parties is no longer a prerequisite to the modification of a child support agreement. Specifically, we refer to § 14.06(d) of that legislation wherein it is stated that the terms of a child support agreement are not enforceable as a contract unless the agreement so provides. No such provision exists in the agreement before us. We interpret § 14.06(d) to mean that unless the parties stipulate that the agreement is to survive the judgment and be enforceable as a contract, contract law no longer governs.

Moreover, reference should be had to § 14.08 which provides, in pertinent part:

"After a hearing, the court may modify an order or a portion of a decree that provides for the support of a child...." Tex.Fam.Code Ann. § 14.08(c)(2) (Vernon's Supp.1980).

In agreements such as the one here in issue, that is, one not enforceable by its terms as a contract, we find guidance in the language from Duke v. Duke, 448 S.W.2d 200 (Tex.Civ.App.-Amarillo 1969, no writ), wherein the Court held:

"Our courts are charged with the responsibility of the welfare of minor children in all divorce cases.... No one would or could quarrel with a court that reduces, by order, an excessive support payment that a parent is financially unable to pay. Conversely, the court has a right, and a duty, to modify that order of support upwards when a father becomes financially able to maintain his own children at a higher standard that he might have agreed to at the time of the divorce." 448 S.W.2d at 202 (on motion for rehearing).

It is abundantly clear that it was within the trial court's power to enter the order here in issue. Accordingly, appellant's first point of error is overruled.

Appellant's second and third points allege error in the findings of fact filed by the trial court in which it was found that, pursuant to the original divorce decree, appellant was "ordered" to make child support payments. It is appellant's position that since the child support agreement was contractual, it was not implemented by order of the court. We believe this alleged error, if any, on the part of the court in so finding, to be superfluous to the disposition of this case. Having already determined that the court below was empowered to issue its modification order regardless of whether the child support payments were provided for by order or by decree, we need not pass on this point.

In his final points of error, appellant challenges the sufficiency of the evidence to support the trial court's increase of appellant's payments, and the award of attorney's fees. We will overrule both of these points.

The court is empowered to modify an order or decree providing for child support payments upon a finding that the circumstances of the child or other persons effected thereby "have been materially and substantially changed since the entry of the order or decree...." Tex.Fam.Code Ann. § 14.08(c)(2). There was ample testimony in the trial court, from both parties hereto, to the effect that in the four years since the entry of the divorce decree appellee's income has remained the same, if not decreased, and that appellant's had increased twofold. As in the case of Jackman v. Jackman, 533 S.W.2d 361 (Tex.Civ.App.-San Antonio 1975, no writ), there was testimony that established a significant change in the income of the parties, as well as testimony to the effect that as children grow older their needs increase. And, as noted in that case, the courts may take judicial notice of the effect of spiraling inflation upon divorce decrees. Id. at 364. Additionally, it appears that the minor child, whose interest is the primary concern of the courts, has required hospitalization, surgery, and continuing medical attention since her parents' divorce, the entire burden of which has been shouldered by appellee. The trial court has broad discretion in matters relating to child support. Doss v. Doss, 521 S.W.2d 709, 712 (Tex.Civ.App.-Houston (14th Dist.) 1975, no writ); Dennis v. Dennis, 512 S.W.2d 699, 701 (Tex.Civ.App.-Tyler 1974, no writ). We are not prepared to hold that the court below has abused that discretion.

The trial court is granted discretion in determining attorney's fees in domestic relations matters. Hayes v. Hayes, 378 S.W.2d 375, 381 (Tex.Civ.App.-Corpus Christi 1964, writ dism'd); Casterline v. Burden, 560 S.W.2d 499, 502 (Tex.Civ.App.-Waco 1973, no writ). Attorney for appellee took the witness stand and, under oath, outlined the tasks he had undertaken to perform on appellant's behalf in regard to this matter, his usual hourly fee, the amount of time he had actually expended and suggested a figure of $1,150.00 to the court. The amount actually awarded represents 65% of the amount requested. In so doing, we do not believe that the trial judge abused his discretion.

The judgment of the trial court is AFFIRMED.

NYE, Chief Justice, concurring.

I respectfully concur. The majority, by way of dicta, in its opinion states that the adoption of the Family Code mandates a holding in line with the quoted provisions of Duke v. Duke, 448 S.W.2d 200 (Tex.Civ.App.-Amarillo 1969, no writ). The statements in the majority opinion are not only wrong, they have absolutely nothing to...