Hill v. Hill

• Decision Date: 20 August 1991
• Docket Number: No. 05-90-01547-CV,05-90-01547-CV
• Citation: 819 S.W.2d 570
• Parties: Judy M. HILL, Appellant, v. Walter O. HILL, Appellee.
• Court: Texas Court of Appeals

Page 570

819 S.W.2d 570

Judy M. HILL, Appellant, v. Walter O. HILL, Appellee.

No. 05-90-01547-CV.

Court of Appeals of Texas,

Dallas.

Aug. 20, 1991.

Rehearing Denied Oct. 14, 1991.

J. Kevin Clark, Fort Worth, for appellant.

Devin R. Fuller, Dallas, for appellee.

Before ENOCH, C.J., and WHITHAM and OVARD, JJ.

OPINION

ENOCH, Chief Justice.

Judy Hill appeals from the declaratory judgment rendered in favor of Walter Hill. She brings six points of error contending that the trial court erred in granting the declaratory judgment because: (1) it was rendered in violation of the United States and Texas Constitutions; (2) it violates public policy; (3) no evidence supports it; (4) appellee waived his right to the judgment; (5) the judgment was barred by res judicata and (6) the declaratory judgment constitutes an advisory opinion. We hold that the declaratory judgment is violative of public policy, sustain the second point of error, reverse the trial court's judgment, and render judgment that Walter Hill take nothing.

FACTUAL AND PROCEDURAL BACKGROUND

On April 1, 1983, the parties signed a Marriage Settlement Agreement, which was incorporated into the decree of divorce entered the same day. Both the divorce decree and the Settlement Agreement provide that Husband is to pay $320 per month in child support for each of the parties' two children. The Settlement Agreement provides that the child-support terms are contractual obligations.

On May 5, 1985, Wife moved to modify the decree of divorce to increase the child support. Husband moved to have the decree modified to increase his time of possession of the children. The trial court denied Wife's motion to increase the amount of child support and granted Husband's motion enlarging the periods in which he could possess the children.

In November 1987, Wife again sought to have the decree modified to provide an increased level of child support. Husband filed a counter motion seeking a reduction in the amount of child support. Husband later amended his counter motion to allege that Wife's motion to modify the decree constituted an anticipatory breach of the Marriage Settlement Agreement for which he was entitled to damages.

In April 1989, Wife nonsuited her motion to modify. In July 1989, Husband amended his counterclaim seeking a declaratory judgment that Wife had breached the Marriage Settlement Agreement by requesting the trial court to modify the child-support terms of the divorce decree. In March 1990, Wife filed another motion for increase of child support. The trial court ruled that the Marriage Settlement Agreement was enforceable as a contract and that both parties had breached the contract by requesting the trial court to modify the child-support terms of the divorce decree. The trial court then declared that Wife will be in breach of the Agreement if she obtains an increase in the amount of court-ordered child support and that Husband will be entitled to damages equal to the amount of the increase. Under the declaratory judgment, Wife will also be liable for Husband's costs and reasonable and necessary attorney's fees to defend against the motion to increase child support and the action to enforce the Settlement Agreement.

PUBLIC POLICY AND MODIFICATION OF CHILD-SUPPORT AGREEMENTS

A child-support obligation incident to divorce is enforceable either by an action for contempt based on the divorce decree's order to pay child support or by an action in contract based on a contractual agreement ¹ between the parties to pay child support. When both the divorce decree and a marriage settlement agreement require payment of child support and the paying spouse obtains a decrease in the amount of the court-ordered payments, the paid spouse can still obtain the original amount of child support by suing for breach of contract under the marriage settlement agreement. Ruhe v. Rowland, 706 S.W.2d 709, 710 (Tex.App.--Dallas 1986, no writ). Husband argues that this doctrine works both ways, that is, that the paying spouse can sue the paid spouse for obtaining an increase in the amount of court-ordered child support over the amount specified in the marriage settlement agreement.

As Husband states in his brief, his "argument is simply that if it's 'good for the goose it's good for the gander.' " This argument, however, is without merit because, in child-support cases, the court's primary concern (to continue Husband's analogy) is neither the goose nor the gander but is the goslings. The declaratory judgment in this case permits Husband to nullify, as a practical matter, a court's determination that an increase in the amount of child support is in the children's best interest. When the parties entered into the Agreement, their children were ages two and four. Under Husband's argument, the amounts of child support, once fixed in the Agreement, could not change for the more than fifteen years that its provisions would govern the child-support payments. This argument flies in the face of the long-established policy that the court may modify the amount of child support to be paid by a party. TEX.FAM.CODE ANN. § 14.08(c)(2) (Vernon Supp.1991).

Child-support agreements require different consideration from property-settlement agreements, which are construed under the law of contracts. See Allen v. Allen, 717 S.W.2d 311, 313 (Tex.1986); Boyett v. Boyett, 799 S.W.2d 360, 362 (Tex.App.--Houston [14th Dist.] 1990, no writ). In property-settlement agreements, finality is critical. The parties must be able to prove title to the property in order to mortgage, sell, lease, or otherwise utilize their property. No such considerations inhere in child-support agreements; there, the State's interest in the continuing welfare of the children outweighs the parents'...