Lee v. Lee, 7587

• Decision Date: 16 May 1974
• Docket Number: No. 7587,7587
• Citation: 509 S.W.2d 922
• Parties: Barbara Lynn LEE, Appellant, v. Burt John LEE, Jr., Appellee.
• Court: Texas Court of Appeals

Page 922

509 S.W.2d 922

Barbara Lynn LEE, Appellant, v. Burt John LEE, Jr., Appellee.

No. 7587.

Court of Civil Appeals of Texas,

Beaumont.

May 16, 1974.

Rehearing Denied June 6, 1974.

Frank M. Adams, Beaumont, for appellant.

Provost, Umphrey, Doyle & Mehaffy, Port Arthur, for appellee.

KEITH, Justice.

Plaintiff below appeals from a judgment which did not grant unto her all the relief she sought in her suit to recover past and future child support claimed to be payable under a property settlement agreement between the parties which had been incorporated into a divorce decree. Because the posture of the parties in the litigation has changed from time to time, we will refer to the plaintiff below as Barbara or the mother, while speaking of the defendant below as Burt or the father.

During the summer of 1970, Burt filed suit for divorce in the Court of Domestic Relations of Jefferson County and Barbara filed a waiver of service of citation therein. Using Burt's lawyer exclusively, the parties worked out a settlement of their community property rights, custody of the two children, and the amount of Burt's support payments for the children.

Paragraph 6 of the settlement agreement, which was approved and incorporated into the divorce decree by reference, read:

'Petitioner (Burt) agrees to pay the sum of $650.00 per month child support for the support and maintenance of his two minor children until Allison Lynn Lee, attains the age of eighteen years of age, at which time the monthly child support payments shall be reduced to $325.00 such payment to continue until Burt John Lee, III, attains the age of eighteen years at which time the child support payments shall cease.'

Barbara was awarded custody of both children and Burt made all of the payments as and when due until early in 1973 when the older child came to live with her father. It was this event which prompted Burt to file a motion in the Court of Domestic Relations seeking a reduction in the child support from $650 to $325 per month. Following the hearing on such application, the Court of Domestic Relations reduced the child support payments to $390 per month.

The reduction order contained a paragraph reading:

'It is ordered, adjudged and decreed that nothing contained herein shall affect the obligations assumed by Burt John Lee, Jr., in said property settlement agreement bearing date of August 28, 1970, approved by the court and made a part of the judgment of the court in said divorce decree, but the provisions of this decree shall relate only to the liabilities imposed upon the plaintiff, Burt John Lee, Jr. under and by virtue of the original decree dated June 3, 1947 (which should read September 8, 1970) and the provisions of Article 4639A, (4639a) Section 1, Vernon's Annotated Civil Statutes, and which may be enforced by contempt proceedings.'

After entry of this order modifying the payments, Barbara brought this suit in the 58th District Court of Jefferson County wherein she sought to recover the balance of the past due installments together with interest thereon, declared on an anticipatory breach of the contract, and sought to recovery the full amount of the remaining sums payable in the future.

Burt answered by a general denial and a special plea that the support paragraph of the settlement agreement was 'the result of a mutual mistake and/or omission of the parties thereto, and said terms do not accurately reflect the intentions of the parties thereto as to the amount of child support that Defendant in this cause is to pay Plaintiff per month.'

Over Barbara's objections, Burt tendered evidence, from himself and his lawyer who handled the divorce action, that the true intention of the parties at the time of the making of the contract was that payments would be made by Burt to Barbara only so long as both children were residing with her; and, his counsel stated that he advised both parties that the matter of support of minor children would be subject to change by the court at all times.

At the conclusion of the non-jury trial, judgment was entered in favor of Barbara for the sum of $650 and Burt was ordered to pay an additional sum of $65 per month, or a total of $455 per month until such time as the daughter reached the age of eighteen years. ¹

We had occasion recently to review the authorities governing support payments made by contract and those based upon the divorce court's statutory authority under Art. 4639a, § 1, Vernon's Ann.Civ.St., which was effective at all times material to this litigation. See Alford v. Alford, 487 S.W.2d 429 (Tex.Civ.App., Beaumont, 1972, error dism.). After discussing the authorities, we continued in language applicable to the case at bar:

'The modified decree did not affect the obligations assumed by appellant (Burt) in the original settlement agreement. Mobley v. Mobley, supra (221 S.W.2d 565 (Tex.Civ.App., San Antonio, 1949, no writ)). Appellee (Barbara) could enforce her rights under the settlement decree only in a separate suit brought upon the contract. Hyman v Brady, supra (230 S.W.2d 345 (Tex .Civ.App., San Antonio, 1950, no writ)).' ²

These cases just noted are dispositive of Barbara's right to recover in the suit upon the contract which was embodied in the original divorce decree unless Burt's plea of 'mutual mistake and/or omission of the parties', mentioned earlier, tendered a defense thereto.

We recognize that Justice Walker in Hutchings v. Bates, supra fn. 2, held:

'In a case like the present, however, where the duty to make support payments arises from an agreement of the parties, their rights and obligations in that respect are governed largely by the rules relating to contracts. . . . Hyman v. Brady, Tex.Civ.App., 230 S.W.2d 345 (no writ).' (406 S.W.2d at 420)

Turning to Hyman v. Brady, cited by Justice Walker, we find that it was a companion case to Brady v. Hyman, 230 S.W.2d 342 (Tex.Civ.App., San Antonio, 1950, no writ), involving the same parties, the same decree, and entered upon the same date. Thus, Justice Walker's approval of the second case necessarily approved Justice Norvell's holdings in the first of the two cases.

We take this series of rules from Brady v. Hyman as governing the rights of the parties in this case, omitting all citations:

'In our opinion the 1946 judgment (the divorce decree in which the settlement agreement had been incorporated), insofar as it relates to the amount payable for child support, must be construed as a consent judgment. . . .

"That part of the judgment which was based upon the agreement of the parties is governed by the laws relating to contracts, rather than laws relating to judgments. . . . ³

"An agreed judgment is interpreted like a contract between the parties. . . .

"Consent judgment rendered pursuant to written agreement becomes a contract between the parties as well as an adjudication between them. . . . Consent judgments are, in effect, merely contracts acknowledged in open court and ordered to be recorded, but as such they bind the parties as fully as do other judgments. . . .'

'(T)he child support provisions of the judgment, insofar as they are based upon contract, and 'in the absence of fraud, accident or mistake, should not be set aside or modified except by the consent of the parties." (230 S.W.2d at 344)

The 'mutual mistake and/or omission' pleaded by Burt was supported by testimony (a) of his lawyer in the divorce action having told the parties that 'child support payments were subject to change as conditions change until the children got to be 18 years old'; and (b) his reliance thereon that the agreement as to child support was '(s)ubject to being changed, if conditions changed.' Yet, the next question and answer elicited from Burt this testimony:

'Q. Now, Mr. Lee did you ever discuss the possibility with your wife that one of your children might come live with you?

'A. No, sir, that never entered my mind.'

Upon cross-examination, Barbara gave similar testimony:

'Q. Did you and Mr. Lee discuss the possibility of what would happen in regard to the child support payments should you not keep custody of one or two of these children up until age 18?

'A. No, sir.'

Burt made no effort to prove fraud, as indeed he could not in the posture in which the question arose: his own lawyer made the statement upon which he relied. ⁴ Cf. O'Meara v. O'Meara, 181 S.W.2d 891, 894 (Tex.Civ.App., San Antonio, 1944, error ref.); Boley v. Boley, supra fn. 4. If there was a mistake made by Burt's lawyer, it was one of law. ⁵ Insofar as Burt contended that there was a Mutual mistake, it too was one of law and not of fact. But, a mutual mistake of law is not ground for rescission or cancellation of a contract. Harris v. Sanderson, 178 S.W.2d 315, 320 (Tex.Civ.App., Eastland, 1944, error ref. w.o.m.); Ussery v. Hollebeke, 391...