Jenkins v. Jenkins

• Decision Date: 22 April 1999
• Docket Number: No. 2-98-158-CV,2-98-158-CV
• Citation: 991 S.W.2d 440
• Parties: Michael Austin JENKINS, Appellant, v. Bee Lyn JENKINS and Harry Cure, Bankruptcy Trustee of the Estate of Bee Jenkins, Appellees.
• Court: Texas Court of Appeals

Page 440

991 S.W.2d 440

Michael Austin JENKINS, Appellant, v. Bee Lyn JENKINS and Harry Cure, Bankruptcy Trustee of the Estate of Bee Jenkins, Appellees.

No. 2-98-158-CV.

Court of Appeals of Texas Fort Worth.

April 22, 1999.

Rehearing Overruled May 27, 1999.

Newman and Davenport, P.C., J. Kent Davenport, Dallas, for Appellant.

Loe, Warren, Rosenfield, Kaitcher & Hibbs, P.C., Jeffery N. Kaitcer, Fort Worth, for Appellee.

Panel B: DAUPHINOT, BRIGHAM, and HOLMAN, JJ.

OPINION

WILLIAM BRIGHAM, Justice.

Introduction

Michael Austin Jenkins appeals from the trial court's order awarding the trustee of his ex-wife's bankruptcy estate certain alimony payments under an agreement incident to divorce (AID), and also awarding the trustee and Michael's ex-wife attorney's fees. We affirm in part and reverse and remand in part.

Michael and Bee Jenkins were divorced in November 1992. They both signed an AID, under which Michael agreed to pay Bee $2000 per month contractual alimony, beginning on November 16, 1992 and continuing on the first and sixteenth days of each month thereafter until $144,000 was paid. Bee agreed to report the alimony payments as income for federal income tax purposes. The parties further agreed that, if Bee failed to list the alimony payments as income for tax purposes, Michael's obligation to make the payments would be suspended until Bee included the payments as income.

Michael stopped making the alimony payments in June 1993, although he paid $6,000 in 1995. Bee filed bankruptcy on June 2, 1993, and Harry Cure (the Trustee) was appointed trustee for Bee's bankruptcy estate.

In November 1994, Michael filed a motion to clarify and enforce his and Bee's divorce decree. On July 19, 1995, the Trustee intervened in that proceeding and moved to enforce the AID, seeking the alimony payments that Michael had not made. In 1996, Bee filed a counterclaim against Michael regarding certain items of personal property.

After a trial on the merits of all these claims, the trial court rendered judgment:

• awarding the Trustee $107,000 in past due alimony payments, less a $28,000 offset to Michael for damage Bee did to Michael's home;

• awarding the Trustee an additional $17,000 in future alimony payments because of Michael's anticipatory repudiation of the AID;

• awarding the Trustee attorney's fees • denying Michael's motion for clarification and enforcement; and

• denying Bee's counterclaim but awarding her attorney's fees.

Michael raises 21 points on appeal, in which he complains:

• the trial court erred by awarding the Trustee most of the $107,000 in past due alimony payments, because most of those payments were not property of Bee's bankruptcy estate;

• the trial court erred by concluding that the Trustee was not barred by limitations from collecting any alimony payments owed before July 19, 1993;

• the trial court's award of the alimony payments to the Trustee is not supported by sufficient evidence;

• the trial court improperly awarded the Trustee future alimony payments based on Michael's alleged anticipatory repudiation of the AID;

• the trial court erred by denying Michael's request for a trial amendment concerning his offsetting damages; and

• the trial court improperly awarded the Trustee and Bee attorney's fees.

Trustee's Capacity to Recover Past-Due Alimony Payments

In points 3 through 7, Michael contends that the Trustee had no "standing" or right to recover most of the past-due alimony payments because they were not part of Bee's bankruptcy estate. The Trustee asserts that this argument is a complaint that the Trustee lacked capacity to sue Michael for all the alimony owed to Bee. Because Michael never raised a lack of capacity argument in a verified pleading, the Trustee contends Michael's complaint is waived.

We believe Michael is making a lack of capacity argument. Capacity is a person's legal authority to act, regardless of whether the individual has a justiciable interest in the controversy. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996). When a defendant challenges a plaintiff's legal right to bring suit, this is a challenge to capacity. See Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex.1988); Davis v. City of Houston, 869 S.W.2d 493, 494 n. 1 (Tex.App.--Houston [1 st Dist.] 1993, writ denied). In contrast, the issue of standing concerns whether the plaintiff was personally aggrieved and therefore has a justiciable interest in the controversy. See Nootsie, Ltd., 925 S.W.2d at 661; Davis, 869 S.W.2d at 494 n. 1.

In this case, Michael contends that the Trustee had the right to sue for only part of the past-due alimony payments--those that were owed to Bee within 180 days of the time she filed her bankruptcy petition. Michael contends that the Trustee had no authority to sue for alimony payments that became due more than 180 days after Bee filed bankruptcy, because those payments were not part of the bankruptcy estate. Thus, Michael is arguing that the Trustee had no legal right--i.e., no capacity--to sue Michael for property that was not part of the bankruptcy estate. See Graves v. Diehl, 958 S.W.2d 468, 470 n. 2 (Tex.App.--Houston [14 th Dist.] 1997, no writ) (explaining that appellant challenged appellee's capacity to sue by complaining that appellee lacked sufficient legal interest in subject property to bring suit).

Michael complained in the trial court that the Trustee had no "legal right" to sue for alimony payments that were not part of Bee's bankruptcy estate. Even if this was an argument that the Trustee lacked capacity to sue, Michael's pleading was not verified. "When capacity is contested, Rule 93(2) requires that a verified plea be filed anytime the record does not affirmatively demonstrate the plaintiff's ... right to bring suit ... in whatever capacity he is suing." Pledger, 762 S.W.2d at 146; see also TEX.R. CIV. P. 93(2). A party who fails to raise capacity through a verified plea waives that issue at trial and on appeal. See Nine Greenway Ltd. v Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787 (Tex.App.--Houston [1 st Dist.] 1994, writ denied); see also Rodriguez v. Texas Dep't of Human Servs., 737 S.W.2d 25, 28 (Tex.App.--El Paso 1987, no writ) (holding that complaints in unverified motion to dismiss challenging plaintiff's authority to bring suit were waived on appeal because motion was not verified, as required by rule 93). We overrule points 3 through 7.

Statute of Limitations

Although Michael stopped making alimony payments on June 1, 1993, the Trustee did not move to enforce the AID until July 19, 1995. In points 14 and 15, Michael complains that the trial court erred by concluding that the Trustee was not barred by limitations from collecting any alimony payments owed before July 19, 1993.

The family code provides that a motion to enforce the division of future property not in existence at the time of the original decree must be filed within two years after the right to the property matures or accrues or after the decree becomes final, whichever is later, or the suit is barred. See TEX. FAM.CODE ANN. § 9.003(b) (Vernon 1998); ¹ Ex parte Goad, 690 S.W.2d 894, 896 (Tex.1985). However, the family code also allows a party who does not receive payments of money awarded in a divorce decree to sue the defaulting party for a money judgment in the amount of the unpaid payments. ² This remedy of reduction to a money judgment is in addition to the other remedies provided by law. ³ See Bowden v. Knowlton, 734 S.W.2d 206, 207-08 (Tex.App.--Houston [1 st Dist.] 1987, no writ).

The parties' AID was approved by the court and incorporated into their divorce decree; thus, the AID was enforceable as part of the decree. See TEX. FAM.CODE ANN. § 7.006(b) (Vernon 1998) (providing that terms of AID approved by trial court are binding on court and may be incorporated into divorce decree); ⁴ McCray v. McCray, 584 S.W.2d 279, 280-81 (Tex.1979) (holding that contractual alimony agreement approved by trial court in divorce decree was enforceable as part of decree); Chess v. Chess, 627 S.W.2d 513, 515 (Tex.App.--Corpus Christi 1982, no writ) (holding that property settlement agreement incorporated into divorce decree is binding as final judgment). But section 9.003(b)'s two-year statute of limitations does not apply to this case because the Trustee did not seek to compel a division of property via his motion to enforce. ⁵ A division of property was unnecessary, because the divorce decree awarded Bee a specific amount of alimony. The Trustee merely sought a money judgment for alimony awarded but not paid, plus additional money damages for Michael's alleged repudiation of the AID. Because the Trustee sought a reduction of the specific monetary award in the AID to judgment, rather than a division of property, the Trustee's claim is not governed by section 9.003(b).

This case is analogous to Bowden, in which the appellant was awarded a specific amount of money in the divorce decree and later sued to enforce it. The First Court of Appeals held that the two-year statute of limitations did not apply to the appellant's claim because she sought to reduce a monetary award to judgment, not the division of property. 734 S.W.2d at 207-08.

Michael's reliance on Goad is misplaced. The divorce decree in Goad did not award the appellee a specific money amount that she later sought to reduce to judgment. Instead, the decree awarded the appellee 12/27 of the appellant's future retirement benefits. 690 S.W.2d at 895. When the appellant retired but refused to divide his retirement benefits as ordered in the divorce decree, the appellee filed a contempt proceeding. Because the appellee sought to enforce a division of future property, the Texas Supreme Court held that the two-year statute of limitations applied. Id. at 896. ⁶ We overrule points 14 and 15.

Michael's Obligation to Make Alimony Payments

In points 1 and 2, Michael complains...