Hoffman v. Hoffman

• Citation: 805 S.W.2d 848
• Decision Date: 14 February 1991
• Docket Number: No. 13-90-024-CV,13-90-024-CV
• Parties: Jace C. HOFFMAN, Appellant, v. Carolyn Sue HOFFMAN, Appellee.
• Court: Court of Appeals of Texas

Page 848

805 S.W.2d 848

Jace C. HOFFMAN, Appellant, v. Carolyn Sue HOFFMAN, Appellee.

No. 13-90-024-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 14, 1991.

Rehearing Overruled March 14, 1991.

Janis Graham Jack, Catherine N. Tyree, Corpus Christi, for appellant.

Larry J. Adams, Corpus Christi, for appellee.

Before SEERDEN, KENNEDY, and BENAVIDES, JJ.

OPINION

SEERDEN, Justice.

Jace C. Hoffman appeals a court-ordered increase in his child support obligation pursuant to his original Decree of Divorce. By six points of error, he alleges that the trial court abused its discretion or erred in modifying the provisions of the agreement because 1) they were contractual and enforceable under the rules of contract law, 2) there is no evidence or insufficient evidence of a change of circumstances of the children, 3) there is no evidence or insufficient evidence that the monthly needs of the children are $1500.00, 4) the contractual alimony and present child support should have been considered in the net resources of appellee, appellant's ex-wife, and 5) appellee is estopped from seeking an increase in child support payments.

Appellant was divorced from Carolyn Sue Hoffman on February 28, 1986. Carolyn was appointed managing conservator of the couple's two daughters, who at that time were ages fourteen and eleven. Jace was appointed possessory conservator. Pursuant to the terms of the divorce decree, Jace was ordered to pay child support to Carolyn in the amount of $800.00 per month for both children and $300.00 per month for one child. He also contractually agreed to pay the same amount. On May 24, 1988, Carolyn filed a Motion to Modify the support order, alleging that the circumstances of the children or a person affected by the order or a portion of the decree providing for the support of the children had materially and substantially changed since the entry of the original order. Jace alleged, as he does on appeal, that the child support order and other provisions of the decree were contractual and, as such, could not be modified absent consent of both parties or in the absence of fraud, accident, or mistake. The trial court found that the financial needs of the children had materially and substantially increased since the entry of the original order and modified the child support order to $1500.00 per month for the two children and $1,125.00 for one child. We affirm the trial court's judgment.

By his first two points of error, Jace alleges that the trial court erred in modifying his child support obligation because the provision in the decree regarding child support was contractual in nature. The final decree provided:

4. Agreement of the Parties. The parties have consented to the terms of this decree and stipulated it is a contract in all respects, including but not limited to the child support, alimony and division of property divisions which shall be likewise enforceable by contract. (emphasis added).

Appellant relies on Tex.Fam.Code Ann. § 14.06(a) and (d) (Vernon 1986) to support his position that parties in divorce cases may reach and enter agreements regarding child support. He further argues that these sections of the Family Code legislatively recognize that it is in the best interest of the children to allow the parties to make child support agreements binding under the rules of contract. Section 14.06(d) provides:

Terms of the agreement set forth in the decree may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as contract terms unless the agreement so provides. (emphasis added).

Appellant asserts that because the agreement in the instant case specifically provides that it would be enforced as a contract, the court cannot amend the terms of support absent Carolyn's submitting pleadings and proof of the legal prerequisites for modification of a contract: Fraud, accident or mistake.

In support of this argument, appellant relies on the cases of Ruhe v. Rowland, 706 S.W.2d 709, 711 (Tex.App.--Dallas 1986, no writ), and Dorshaw v. Dorshaw, 635 S.W.2d 783, 785 (Tex.App.--Corpus Christi 1982, no writ). In Ruhe, the appellant complained that the trial court had lacked authority to modify a settlement agreement between the parties which provided for support. In that case, the court held that the trial court did lack such authority in the absence of fraud, accident or mistake (except by consent of the parties). The court rationalized that the duty to make support payments arose from an agreement of the parties and their rights and obligations were governed by the rules relating to contracts. The court noted that at the time of divorce there were two separate sources of the husband's liability for child support: An agreement incident to divorce and the judgment itself. Although the court did not have the authority to modify the terms of the settlement agreement, the court explained, it did have authority to modify the judgment. The agreement incident to divorce continued to exist as a separate source of liability.

In Dorshaw, this Court interpreted Section 14.06 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. We further noted that Tex.Fam.Code.Ann. § 14.08(c)(2) grants the court the power to modify child support provisions. Because our courts are charged with the responsibility and welfare of minor children in divorce cases, the court has a right and duty to modify support orders when justified by the facts and circumstances. Dorshaw, 635 S.W.2d at 785 (citing Duke v. Duke, 448 S.W.2d 200 (Tex.Civ.App.--Amarillo 1969, no writ)).

We find the cases of Brady v. Hyman, 230 S.W.2d 342 (Tex.Civ.App.--San Antonio 1950, no writ) and Hyman v. Brady, 230 S.W.2d 345 (Tex.Civ.App.--San Antonio 1950, no writ) particularly illuminating. In Brady, the ex-wife appealed from a reduction of child support payments, contending that the support provisions of the divorce decree were based upon a contract and that the court erred in changing the terms of the contractual provisions. As a contract, the agreement for support could not be modified by the court in the absence of fraud, accident, or mistake. Because the order in that case purported to affect and modify the settlement agreement upon which the provisions of the decree relating to child support were based, the court of appeals held that the modification was erroneous. The court further noted, however, that the child support provision of the decree, based on statute and enforceable by contempt proceedings, was subject to court modification. Brady, 230 S.W.2d at 344-45. The Hyman case (which involved the same parties) was a suit by the ex-wife to recover the balance due on a note and to recover delinquent payments under the settlement agreement. The court held that because the agreement was contractual in nature, the ex-wife was entitled to recover judgment against the ex-husband based upon the contract. Hyman, 230 S.W.2d at 346. We glean from these cases that child support may be provided for in two separate manners: By court order and by contract. See Alford v. Alford, 487 S.W.2d 429, 432-433 (Tex.Civ.App.--Beaumont 1972, writ dism'd); Mobley v. Mobley, 221 S.W.2d 565, 568 (Tex.Civ.App.--San Antonio 1949, no writ).

With these guidelines in mind, we must next determine whether the court modified the contractual settlement agreement or its own order. The Final Decree of Divorce entered on February 28, 1986 contains the following language:

Agreement Incident to Divorce. The court finds the parties have entered into an Agreement Incident to Divorce. The court approves the agreement and makes it part of the Decree as if it were recited verbatim.

Paragraph 9 of the Decree further provides:

Child Support. IT IS ORDERED AND DECREED that Jace C. Hoffman is obligated to pay, and, shall pay to Carolyn Sue Hoffman child support of $800.00 per month.... (emphasis...