Mastin v. Mastin

• Decision Date: 29 August 2001
• Docket Number: No. 04-00-00428-CV.,04-00-00428-CV.
• Citation: 70 S.W.3d 148
• Parties: John N. MASTIN, Appellant, v. Nita R. MASTIN, Appellee.
• Court: Texas Court of Appeals

70 S.W.3d 148

John N. MASTIN, Appellant, v. Nita R. MASTIN, Appellee.

No. 04-00-00428-CV.

Court of Appeals of Texas, San Antonio.

August 29, 2001.

Rehearing Overruled January 17, 2002.

Appeal from the 288th Judicial District Court, Bexar County, Honorable Frank Montalvo, Judge.¹

Richard D. Woods, Law Office of Richard D. Woods, Robert J. Myers, Robert J Myers & Associates, San Antonio, for Appellant.

Sam C. Bashara, Law Offices of Sam Bashara, P.C., San Antonio, for Appellee.

Before TOM RICKHOFF, Justice, CATHERINE STONE, Justice, and SARAH B. DUNCAN, Justice.

OPINION

TOM RICKHOFF, Justice.

Nita Mastin sued her former husband, John Mastin, for breach of their contractual alimony agreement. All issues relating to the alimony arrearage were determined in Nita's favor through partial summary judgment. The issues of acceleration of future payments and attorney's fees were resolved in Nita's favor after a bench trial. Because we conclude that Nita did not give clear notice of an intent to accelerate future payments, we reverse in part.

BACKGROUND

Nita and John's divorce decree obligated John to pay Nita contractual alimony as follows:

Petitioner, John N. Mastin agrees to pay to Respondent, Nita R. Mastin, monthly contractual alimony in the sum of $1,289.90. Said monthly payment shall increase in an amount equal to any increase in interest only on that certain [mortgage] note due to San Antonio Savings Association, or its successor, for the real property herein awarded to [Nita], according to the Renewable Rate Note dated November 23, 1983, and the Deed of Trust of even date therewith. Likewise, in the event of a decrease in the variable interest rate on said note, the contractual alimony payment shall decrease accordingly. [John] may pre-pay any portion, at his option without penalty, provided that [John] gives [Nita] sixty (60) days advance notice....

The contractual alimony payments continue as long as Nita is alive, remains the owner of the home, and the note remains unpaid. The decree also provides that John's contractual alimony payments decrease if the home is sold.

After making the monthly payment for a number of years, John began to pay Nita $1,000 per month and Nita accepted the payments for eight years. In May and June 1995, Nita sent letters to John complaining that he was under-paying his alimony. On December 14, 1999, Nita sent John a letter demanding payment and warning that if a lawsuit was required, acceleration was a reserved remedy. Nita sued John in January 2000. John filed a general denial.

The trial court rendered a partial summary judgment in Nita's favor, in which the court held that the alimony agreement was unambiguous and John was required to pay Nita $1,289.90 per month adjusted annually to reflect the increase or decrease in the interest rate on the mortgage note. The court found John in arrears in the amount of $19,524.44, with interest in the amount of $2,151.45. After a bench trial, the court signed a final judgment, incorporating the partial summary judgment, ordering that Nita recover from John $105,324.06, with interest, plus $25,354.94 in attorney's fees, $800 in accounting fees, and $23,500 if John pursued an unsuccessful appeal.

PARTIAL SUMMARY JUDGMENT

John asserts the trial court erred in rendering summary judgment in Nita's favor because the contractual alimony agreement is ambiguous, there are fact questions as to how Nita applied his payments to her and as to the amount of any arrearage and the trial court ignored his affirmative defenses.

In her summary judgment affidavit, Nita stated, "The principal and interest monthly payments to San Antonio Savings and Loan on the date of our divorce was $962.64. The total monthly payment to San Antonio Savings and Loan on the date our divorce was heard in October, 1989, which included an escrow for taxes and insurance, was $1289.90." John argues the alimony payment should consist only of the principal and interest on the mortgage note. He asserts the agreement is ambiguous because it was never his intention to pay the taxes, insurance, or homeowner's association fees associated with the house; therefore, there is a fact issue as to whether the $1,289.90 alimony payment includes amounts other than principal and interest.

Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered. Columbia Gas Trans. Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996); Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). A contract is not ambiguous if it can be given a definite or certain meaning as a matter of law. Columbia Gas, 940 S.W.2d at 589; Coker, 650 S.W.2d at 393. An ambiguity does not arise simply because the parties advance conflicting interpretations of the contract. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994). Extrinsic evidence is inadmissible to contradict or vary the meaning of the unambiguous language of the written contract. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521 (Tex.1995).

On the other hand, if the contract is subject to two or more reasonable interpretations after applying the pertinent rules of construction, the contract is ambiguous, and creates a fact issue as to the parties' intent. Id. at 520. An ambiguity in a contract may be said to be "patent" or "latent." A patent ambiguity is evident on the face of the contract. Id. A latent ambiguity arises when a contract that is unambiguous on its face is applied to the subject matter with which it deals and an ambiguity appears by reason of some collateral matter. Id. If a latent ambiguity arises from this application, parol evidence is admissible for the purpose of ascertaining the true intention of the parties as expressed in the agreement. Id.

Here, the parties' understanding as to the manner in which the contractual alimony payment was calculated is relevant only if the agreement is ambiguous. It is not. The clear language of the agreement states that the contractual alimony payment is a specific amount, which may vary based only on a single expense—the interest rate on the mortgage note. The agreement does not tie the contractual alimony amount to any other expense that might—or might not—be associated with the home or the mortgage note. We hold that the contract is not reasonably susceptible to more than one interpretation; therefore, the trial court did not err in determining the decree was unambiguous, and we affirm the summary judgment on that issue.

John next complains there is a fact issue with regard to how Nita applied his payments. It is undisputed that John sent Nita a single monthly check and he did not differentiate between his monthly child support payment and his monthly alimony obligation. Nita credited the payment first toward the child support obligation and the balance toward the alimony obligation. The general rule is that where a debtor makes payment to his creditor without directing the manner of application of the payment, the creditor may apply the payment to any one of the various debts owed him by the debtor. W.E. Grace Mfg. Co. v. Levin, 506 S.W.2d 580, 585 (Tex.1974). The creditor is not bound by the debtor's uncommunicated intentions as to the application of the payment. Peden v. Carpenter, 516 S.W.2d 19, 21 (Tex. Civ.App.—Amarillo 1974, no writ). Because John did not designate how Nita should apply his monthly payment, he cannot now create a fact issue by asserting that she should have applied the payment first to his contractual alimony obligation and second to his child support obligation.

John also contends the trial court erred in not considering his affirmative defenses. In his response to Nita's motion for summary judgment, John asserted only that Nita was estopped to deny he was responsible for only principal and interest on the note and estopped from asserting he was responsible for taxes and insurance.² On appeal, John argues that Nita accepted his lesser payments for several years without complaint, giving rise to the affirmative defenses of estoppel, payment, accord and satisfaction, and waiver. To properly preserve a defense for purposes of appeal, John had to expressly present the defense to the trial court in the summary judgment proceeding. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677-79 (Tex.1979). Because John did not raise these defenses, other than the one estoppel argument raised in his response to the motion for summary judgment, these defenses were waived.

Finally, John asserts the method by which the experts calculated the alleged alimony arrearage creates a fact issue. Nita's motion for summary judgment was supported by the affidavit of her accountant, who explained how she calculated the arrearage of almost $20,000. John's response was supported by a controverting affidavit from his accountant, who explained how he calculated an overpayment by John to Nita of approximately $30,129.

John's expert's opinion has no probative value because it is based on erroneous assumptions—that the alimony obligation was limited to principal and interest only and that Nita improperly applied John's payments to her. Because we already have held that these assumptions are incorrect, John's summary judgment evidence is not sufficient to create a fact issue. See Burroughs Wellcome v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (an expert's opinion has no probative value and cannot support a judgment if that opinion is based on assumed facts which vary materially from actual, undisputed facts).

ACCELERATION OF DAMAGES

After a bench trial, the court accelerated John's contractual alimony payments in the amount of $82,528.22.³ John first complains that Nita did not give him notice of her intention to accelerate. Nita contends John waived his complaint because he did not file special exceptions or raise failure to provide him notice as...