Leonard v. Lane

• Decision Date: 07 November 1991
• Docket Number: No. 01-91-00198-CV,01-91-00198-CV
• Citation: 821 S.W.2d 275
• Parties: Morton Harry LEONARD, Appellant, v. Sheryl Freed LANE, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 275

821 S.W.2d 275

Morton Harry LEONARD, Appellant, v. Sheryl Freed LANE, Appellee.

No. 01-91-00198-CV.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 7, 1991.

Rehearing Denied Nov. 27, 1991.

Patrick Reilly, Galveston, Ann J. Crawford, El Paso, for appellant.

Elmo Schwab, Galveston, for appellee.

Before SAM BASS, DUNN and HUGHES, JJ.

OPINION ON MOTION FOR REHEARING

SAM BASS, Justice.

Appellant has filed a motion for rehearing asserting that this Court erred in concluding that appellee did not breach the agreement incident to divorce by seeking an increase in child support. We overrule the motion for rehearing. However, we withdraw our previous opinion dated October 10, 1991, and issue this opinion in its place.

This appeal is from an order modifying child support in favor of Sheryl Freed Lane (Wife), and against Morton Harry Leonard (Husband). After a bench trial, the trial court ordered the child support to be increased to further the best interests of the children.

The order is affirmed.

The parties were divorced in 1980 in El Paso County, Texas. At the time of the divorce, they entered into an agreement incident to divorce that was incorporated by reference into the final divorce decree. With regard to child support, the agreement provided that Husband would pay child support in the amount of $1,000 per month until the youngest child attained the age of 21. He further agreed, and the decree ordered, that he pay temple or synagogue dues, Jewish Community Center dues, one-half of the tuition and fees for nursery school and kindergarten, and all medical and dental expenses until each child reached the age of 21.

In 1989, Wife filed suit seeking an increase in child support on behalf of the parties' three children. Husband counterclaimed for breach of contract, asserting that the agreement incident to divorce provides a contractual defense to Wife's modification action seeking an increase in child support.

The trial court increased the child support from $1,000 to $3,000 per month and denied all relief requested by Husband. The court further found contractual provisions for child support that may be construed as prohibiting an increase in child support are void as a matter of public policy.

In appellant's first three points of error, Husband distinguishes between enforcement of the agreement and enforcement of the court order. He first asserts that the trial court erred in denying his counterclaim for breach of contract. Secondly, he claims that the trial court erred in concluding that Wife is not barred from seeking an increase in child support. In his third point of error, he argues that the trial court erred in concluding that the contractual provisions prohibiting an increase in child support are void as a matter of public policy. All three points of error are overruled.

Husband correctly asserts that TEX.FAM.CODE ANN. § 14.06(d) (Vernon 1986) provides that the terms of an agreement incident to divorce set forth in the decree are not enforceable as a contract unless the agreement so provides. He urges this Court to hold that, because the agreement between Husband and Wife provided for contract enforcement, subsequent modification of child support payments is prohibited.

This argument has been rejected in Hoffman v. Hoffman, 805 S.W.2d 848 (Tex.App.--Corpus Christi 1991, writ denied ). In that case, the father had contractually agreed to pay $800 per month child support. The divorce decree ordered him to pay the same amount. The mother requested an increase in support payments due to changed circumstances. The father responded that the divorce decree was contractual with respect to child support and could not be modified unless fraud, accident, or mistake were shown.

The court differentiated between the two methods for providing child support: by court order and by contract. It held that the trial court had the power to modify the support order. The court further held that the mother is not estopped to request an increase in child support where she seeks to modify only the decree, not the agreement.

Our case is directly on point with Hoffman. In Wife's motion to modify, she stated that the order she sought to modify was the decree of divorce dated October 16, 1980. Nowhere in her motion does she seek to modify the agreement incident to divorce. The reasoning of Hoffman therefore applies. A motion to modify goes only to the court-ordered support and not to the contractual agreement. The court has the right to act in the best interest of the child, notwithstanding any agreements of the parties. Thus, Wife clearly is not barred from seeking an increase in child support.

Husband relies on Ruhe v. Rowland, 706 S.W.2d 709 (Tex.App.--Dallas 1986, no writ) to support his assertion that the trial court may not modify support. In Ruhe, the Dallas Court of Appeals held that a husband was obligated to pay his ex-wife the contractual amount of child support although the district court had decreased the court-ordered child support payments. Husband argues that "what is good for the goose should be good for the gander." In other words, the payor spouse should be able to sue on the contract just as the Ruhe court allowed the payee spouse to do. We find that either spouse may sue on the contract, provided that the other spouse has breached the agreement by words or actions.

Husband, in his first amended counterclaim for breach of child support contract, states that Wife

"has demonstrated a clear, present, and unconditional intention to pursue her Motion to Modify seeking an increase in child support thereby anticipatorily repu[diating] her agreement that the child support provisions of...