Lambourn v. Lambourn, B14-88-00902-CV

• Decision Date: 15 February 1990
• Docket Number: No. B14-88-00902-CV,B14-88-00902-CV
• Citation: 787 S.W.2d 431
• Parties: Roger Elliot LAMBOURN, Appellant, v. Nancy Willis LAMBOURN, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 431

787 S.W.2d 431

Roger Elliot LAMBOURN, Appellant, v. Nancy Willis LAMBOURN, Appellee.

No. B14-88-00902-CV.

Court of Appeals of Texas, Houston (14th Dist.).

Feb. 15, 1990.

Rehearing Denied April 19, 1990.

Angelo Parrish, Houston, for appellant.

John A. Graml, Houston, for appellee.

Before MURPHY, ROBERTSON and SEARS, JJ.

OPINION

SEARS, Justice.

This an appeal from a divorce proceeding. Roger Lambourn (Appellant) and Nancy Lambourn (Appellee) were divorced in December, 1984. The district court entered a final decree of divorce, incorporating by reference an agreement incident to divorce. The decree required each party to purchase and maintain a life insurance policy for the benefit of their minor child until he reached twenty-two. Appellant failed to provide proof of insurance to appellee. Appellee filed a motion for enforcement and clarification of the original decree. The district court granted appellee's motion, ordered both parties to offer proof of coverage annually, and ordered appellant to pay $4500.00 to appellee for attorney fees incurred in the enforcement proceeding. In two points of error, appellant contends the district court erred by granting appellee's motion and contends the court abused its discretion by awarding appellee attorney fees. We reverse the order of the district court.

In his first point of error, appellant contends the district court erred by granting appellee's motion for enforcement. We agree. A court of continuing jurisdiction has no authority to order or to enforce support for a non-disabled child over eighteen. TEX.FAM.CODE ANN. § 14.05 (Vernon Supp.1989); Elfeldt v. Elfeldt, 730 S.W.2d 657, 658 (Tex.1987). Accordingly, the district court was without authority to order appellant to maintain life insurance for the benefit of the child until the child reached age twenty-two. The dissent concludes that the district court's order is at most voidable, relying on Garza v. Fleming, 323 S.W.2d 152, 155, (Tex.Civ.App.--San Antonio 1959, writ ref'd n.r.e.). In Garza the trial court ordered appellant to pay $100.00 per month for the support of "the minor children" until the youngest child reached age eighteen. Because the Garza order did not require appellant to pay support for any child over the age of eighteen, the appellate court correctly refused to find the trial court's order void. Thus, Garza is factually distinguishable from the order in this case and does not support the dissent's conclusion.

Appellee contends the parties contracted to provide the coverage and contends the agreement is enforceable under § 14.06 of the family code. We disagree. TEX.FAM.CODE ANN. § 14.06 provides:

(d) 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.

(Vernon 1986) (emphasis added). Section 14.06(d) clearly requires that the parties to an agreement concerning the support of a non-disabled child over eighteen must expressly provide in the order incorporating the agreement that its terms are enforceable as contract terms for that remedy to be available. Assuming an agreement existed, we cannot find a provision in the decree allowing enforcement of the agreement as a contract. Moreover, even assuming the agreement provided for enforcement as a contract, appellee's only remedy would be a common law breach of contract action, not a motion for enforcement. Adwan v. Adwan, 538 S.W.2d 192, 195 (Tex.Civ.App.--Dallas 1976, no writ); Carson v. Korus, 575 S.W.2d 326, 328 (Tex.Civ.App.--San Antonio 1978, no writ). See also Fullerton v. Holliman, 730 S.W.2d 168, 170-71, (Tex.App.--Eastland 1987, writ ref'd n.r.e.) (holding that where the written agreement is not set forth in the decree, the agreement remains enforceable only as a contract). Accordingly, we reverse the order of the district court and we render judgment for appellant.

Appellee brings two counter points charging appellant with filing a frivolous appeal. Appellee seeks attorney fees and sanctions. We overrule both cross points.

ROBERTSON, Justice, dissenting.

With all due respect, I believe the majority opinion fails to address the issue presented and, in fact, goes well beyond what is necessary to decide this case. I, therefore, respectfully dissent.

The original divorce decree in this case was signed December 14, 1984, and incorporated by reference an agreement incident to divorce. The portion of the agreement incident to divorce which is the basis for this proceeding is a requirement that appellant provide a $250,000 life insurance policy naming the only child of the parties, who was 4 years old at the time the parties signed the agreement, as beneficiary and appellee as trustee to receive the benefits. Further, the agreement required appellee to provide a $100,000 life insurance policy, again naming the child as beneficiary, with appellant as trustee to receive the benefits. Concerning this agreement, appellant testified, in response to his attorney's question:

Q. At the time of your negotiating the settlement of this divorce decree, did you discuss the insurance provisions?

A. Yes, we did.

Q. Was it a very detailed discussion?

A. No.

Q. Last minute one?

A. No. It was literally at the midnight or twelfth hour and it was kind of if you'll give in here, we'll give in here, would you provide $250,000 if she provides one hundred. And at that point after arguing over things for three hours I said, fine, I'll do it.

The decretal portion of the divorce judgment concerning the life insurance agreement provided:

It is further ORDERED, ADJUDGED AND DECREED that Roger Elliot Lambourn will maintain life insurance, with net death benefits of Two Hundred Fifty Thousand Dollars ($250,000.00) for Robin Richard Lambourn, until said child attains the age of twenty-two (22) years or dies. Roger Elliot Lambourn shall designate and name Nancy Willis Lambourn as Trustee to receive said death benefits on behalf of Robin Richard Lambourn until said child attains the age of twenty-two (22) years.

It is further ORDERED that Nancy Willis Lambourn will maintain life insurance, with net death benefits of One Hundred Thousand Dollars ($100,000.00) for Robin Richard Lambourn, until said child attains the age of twenty-two (22) years or dies. Nancy Willis Lambourn shall designate and name Roger E. Lambourn as Trustee to receive said death benefits on behalf of Robin Richard Lambourn until said child attains the age of twenty-two (22) years.

It is further ORDERED that both parties herein shall be furnished such proof as they may require to ascertain that the policies are maintained in full force and effect, including but not limited to, proof of premium payments and releases to secure information from the insurance company or carrier.

The obvious problem with the provision of the decree providing for such insurance was that it did not provide for a date of compliance. The evidence shows that one week following the divorce decree, appellee requested appellant to provide proof of the $250,000 insurance policy. These requests by appellee continued for almost two years, during which time appellant never provided such proof, but instead made various proposals in lieu of the $250,000 policy.

Finally, on October 31, 1986, appellee filed a "Motion For Enforcement and Clarification of Prior Order" requesting that the court order appellant to maintain the life insurance and that the court specify "[A]n exact time and place for proving this to be done." Further, appellee sought reasonable attorney's fees. Appellant filed an answer acknowledging that even though there was no specific date set forth in the decree for providing the insurance coverage, "there never was a time when [the child] would not have received at least $250,000 upon the death of [appellant]," and that "this was clearly the intent of...