Fullerton v. Holliman

• Decision Date: 30 April 1987
• Docket Number: No. 11-87-026-CV,11-87-026-CV
• Parties: Kay LaJuan FULLERTON, Appellant, v. Gary A. HOLLIMAN, Appellee.
• Court: Texas Court of Appeals

Page 168

730 S.W.2d 168

Kay LaJuan FULLERTON, Appellant, v. Gary A. HOLLIMAN, Appellee.

No. 11-87-026-CV.

Court of Appeals of Texas Eastland.

April 30, 1987.

Rehearing Denied May 28, 1987.

Frank D. Scarborough and Allen Dozier, Glandon, Erwin, Scarborough, Baker & Choate, Abilene, for appellant.

Gary A. Holliman, Denton, for appellee.

OPINION

DICKENSON, Justice.

Kay LaJuan Fullerton sued her ex-husband, Gary A. Holliman, for contractual child support payments. ¹ Following a nonjury trial, the trial court ordered that she take nothing by her suit and that he take nothing by his counterclaim. Kay LaJuan Fullerton appeals. We reverse and render.

The trial court made findings of fact and conclusions of law which are quoted in full as shown:

FINDINGS OF FACT

1. On or about January 19, 1963, Plaintiff and Defendant were married.

2. On or about February 8, 1984, Plaintiff and Defendant executed a contract and agreement whereby Defendant agreed to make child support payments to Plaintiff for the support of their child, Paige Elaine Holliman evidenced by Plaintiff's exhibit 3.

3. The contract and agreement, evidenced as Plaintiff's exhibit 3, provided for monthly child support payments to be $600.00 per month following the sale of the house until the child in question reached the age of eighteen and it was the intent of the parties that Paige Elaine Holliman be supported by Gary A. Holliman until she has had an opportunity to finish high school, but that such support shall not, in any event, continue following her nineteenth birthday or graduation from high school, whichever occurs first.

4. Plaintiff and Defendant were divorced by decree of the 326th District Court in cause number 9703-C signed on the 1st day of March, 1984 by Judge Strauss.

5. The decree of divorce did not refer to or incorporate the provisions of the contract and agreement.

6. The contract and agreement contained no provision that it would survive the decree of divorce.

7. The child in question turned 18 on February 2, 1986.

8. The last child support payment by Defendant to Plaintiff was on or about January 15, 1986, and no other child support payments have been made by Defendant to Plaintiff.

9. The child in question graduated from high school before June 1, 1986.

10. The amount of unpaid child support for the child in question from her 18th birthday to her high school graduation is $2,400.00 due by Defendant to Plaintiff.

11. The reasonable and necessary attorney's fees incurred by Plaintiff in prosecuting this action is $976.50.

12. On the 18th day of February, 1986, Plaintiff filed a Motion to Modify in cause number 9703-C in the 326th District Court in and for Taylor County, Texas. Said motion was to modify the decree to extend the payment of child support to the child's graduation from high school.

13. Said Motion to Modify was heard by the 326th District Court of Taylor County, Texas, on the 12th day of March, 1986, and was denied as the Court no longer had jurisdiction of the child.

CONCLUSIONS OF LAW

1. The divorce decree in cause number 9703-C signed on the 1st day of March, 1984, by Judge Henry Strauss supercedes any prior agreement or contract between the parties as a matter of law.

2. Since the contract and agreement contains no provision that the agreement will survive the divorce decree, the agreement does not survive the decree and as a matter of law Plaintiff cannot enforce the provisions of said contract and agreement.

3. But for conclusion of law numbers 1 and 2 above, Plaintiff would otherwise be entitled to a judgment in the amount of $2,400.00 plus attorney's fees of $976.50, interest and costs.

4. The relief sought by the Plaintiff should have been alternatively sought in the Plaintiff's Motion to Modify and therefore, this action is barred by the doctrine of res judicata.

Appellant presents four points of error, arguing that the trial court erred: (1) in holding that the divorce decree superceded the prior agreement or contract as a matter of law; (2) in holding that the agreement did not survive the divorce decree and is unenforceable as a matter of law; (3) in holding that the prior judgment in the companion case barred relief under the doctrine of res judicata because the prior judgment was not final; and (4) in holding that the prior judgment in the companion case barred relief under the doctrine of res judicata because there was no trial on the merits in that case. Appellee presents one cross-point, arguing that the trial court erred in holding appellant would be entitled to judgment for the sum of $2,400.00 plus attorney's fees of $976.50, interest and costs [but for conclusions of law 1 and 2].

We sustain the first two points of error. Neither the agreement nor the decree of divorce states that the judgment supercedes the agreement. The agreement was not conditioned upon approval by the court. The paragraphs in the written agreement executed by the parties on February 8, 1984, prior to their divorce, read in full as shown:

I.

That Gary A. Holliman, shall pay to Kay LaJuan Holliman, child support in the amount of $200.00 per month with the first payment being due and payable on the 15th day of March, 1984, said child support being for the support of Paige Elaine Holliman. Said payments shall continue in said amount until the property at Route 7, Box 114, Abilene, Texas, is sold.

II.

The parties contract and agree that the property at Route 7, Box 114, Abilene, Texas, should be sold and have listed the conditions of sale in their decree of divorce.

III.

That upon the sale of said property, Gary A. Holliman, shall pay to Kay LaJuan Holliman, child support in the amount of $600.00 per month with the first payment being due and payable on the 15th day of the month following closing of the sale of the property at Route 7, Box 114, Abilene, Texas. The sum of $600.00 per month for Paige Elaine Holliman shall continue until Paige Elaine Holliman reaches the age of eighteen (18) years or is otherwise emancipated. It is the intent of the parties that Paige Elaine Holliman be supported by Gary A. Holliman, until she has had an opportunity to finish high school...