McCollough v. McCollough

• Decision Date: 25 August 2006
• Docket Number: No. 03-05-00558-CV.,03-05-00558-CV.
• Citation: 212 S.W.3d 638
• Parties: Randy F. McCOLLOUGH, Appellant, v. Cherie McCOLLOUGH, Appellee.
• Court: Texas Court of Appeals

212 S.W.3d 638

Randy F. McCOLLOUGH, Appellant, v. Cherie McCOLLOUGH, Appellee.

No. 03-05-00558-CV.

Court of Appeals of Texas, Austin.

August 25, 2006.

Dana D. Banks, Smith, Rose, Finley, Harp & Price, P.C., San Angelo, for appellant.

Andres S. Medrano, Anne A. Dvorak, Medrano & Heisler, Austin, for appellee.

Before Chief Justice LAW, Justices PEMBERTON and WALDROP.

OPINION

BOB PEMBERTON, Justice.

Appellant Randy McCollough sued to modify alimony payments he was required to make to his ex-wife, appellee Cherie McCollough, under an agreement incident to their divorce. He relied in part upon provisions in chapter 8, subchapter B of the family code, which govern spousal maintenance payments. Cherie obtained summary judgment that chapter 8 was inapplicable to Randy's alimony obligation here, and Randy appeals.¹ We will affirm.

BACKGROUND

On August 3, 2001, the district court rendered an Agreed Final Decree of Divorce between Randy and Cherie McCollough. In the decree, the district court found that the parties had entered into a separate Agreement Incident to Divorce, approved the agreement, incorporated it by reference, and ordered "the parties to do all things necessary to effectuate the agreement." The agreement, in turn, provided that it was to be enforceable as a contract, stated the intent of providing "a continuing measure of support" for Cherie after divorce that qualified as contractual alimony under the Internal Revenue Code, and required Randy to pay Cherie "$5,000.00 per month as alimony." Payments were to continue for a term of ten years unless one of several specified conditions occurred. One such condition was "the remarriage of" Cherie.

Randy brought the present action to modify his alimony obligations based on his allegations that Cherie had entered into an "informal marriage" to another man. He relied both on the terms of the agreement incident to divorce and various provisions within chapter 8 of the family code. Specifically, Randy pleaded that his obligation to pay alimony terminated under family code section 8.056 because Cherie had "remarried" and had "cohabit[ed] with another person in a permanent place of abode on a continuing, conjugal basis," Tex. Fam.Code Ann. § 8.056(a), (b) (West 2006), and should be modified due to a "material and substantial change of circumstances." Id. § 8.057. Randy also claimed that he was entitled to his requested relief via section 8.059 of the family code, which authorizes the district court to enforce by contempt "the court's maintenance order or an agreement for the payment of maintenance voluntarily entered into between the parties and approved by the Court." Id. § 8.059.

Cherie answered and sought partial summary judgment that, in relevant part, the remedies of chapter 8 were not applicable to Randy's alimony obligations under the agreement incident to divorce. Specifically, Cherie asserted the following summary judgment grounds: (1) agreements incident to divorce are governed by contract law, not the family code, "and as such are not susceptible to modification based on the Texas Family Code where the contract does not refer to the Family Code for modification"; (2) the agreement to pay alimony here is not subject to the family code because it was created and court-approved without reference to the factors enumerated in chapter 8 for awarding court-ordered maintenance; and (3) "no evidence has been produced that indicated that [Randy] may modify the agreement pursuant to the Family Code" or that "tends to refute the fact that only the terms of the Agreement should dictate the modification of [Randy's] alimony payments."

The district court granted partial summary judgment against Randy's claims "arising under Section 8.056, 8.057 and 8.059, Subchapter B, Chapter 8 of Title 1 of the Texas Family Code."² Randy later nonsuited his other claims, and the district court rendered a final judgment denying his claims under chapter 8. From this final judgment, Randy appeals.

DISCUSSION

On appeal, Randy brings three issues that can be summarized as: (1) as a matter of law, "spousal maintenance payments" under chapter 8, family code, include alimony payments under agreements incident to divorce; (2) as a matter of law, the agreement incident to divorce here contemplates modification or termination under chapter 8; and (3) alternatively, Randy raised a genuine issue of material fact as to whether the parties intended the agreement incident to divorce to allow modification or termination under chapter 8.³

Standard of review

We review the district court's grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003); Mid-South Telecomms. Co. v. Best, 184 S.W.3d 386, 389 (Tex.App.-Austin 2006, no pet.). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex.2004) (citing Knott, 128 S.W.3d at 215-16).

Our disposition of this appeal turns largely upon construction of chapter 8 of the family code. The purpose and goal of statutory construction is to give effect to the intent of the legislature. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994). We consider, among other factors, the language of the statute, legislative history, the nature and object the legislature intended to be obtained, and the consequences that would follow from alternative constructions, even when a statute is not ambiguous on its face. Tex. Gov't Code Ann. § 311.023 (West 2005); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); United Servs. Auto. Ass'n v. Strayhorn, 124 S.W.3d 722, 728 (Tex.App.-Austin 2003, pet. denied). We consider disputed provisions in context, not in isolation. Texas Workers' Comp. Comm'n v. Continental Cas. Co., 83 S.W.3d 901, 905 (Tex.App.-Austin 2002, no pet.); see Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex. 1999). "[W]e presume that every word of a statute has been included or excluded for a reason . . . ." Old Am. County Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex.2004). We also are to presume that the legislature enacted a provision with knowledge of the background law and awareness of existing law. See Tex. Gov't Code Ann. § 311.023; see also Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex.1990) ("A statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it.").

Background and context of chapter 8

Prior to 1995, the award of post-divorce alimony or spousal maintenance was held to be impermissible under the statutes and public policy of Texas. Ex parte Casey, 944 S.W.2d 18, 19 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). However, the Texas Supreme Court construed this limitation in a manner that prohibited court-ordered alimony but allowed parties to agree to such awards contractually. See Francis v. Francis, 412 S.W.2d 29, 31 (Tex.1967). The court explained that, "When its true meaning is distilled from the statutes and the court decisions of this State, alimony which contravenes the public policy of the State is only those payments imposed by a court order or decree on the husband as a personal obligation for support and sustenance of the wife after a final decree of divorce." Id. at 33. By contrast, "obligations assumed by the husband in separation agreements or contracts to make payments for the support of the wife after a divorce decree becomes final, are not obligations to pay alimony and do not violate the public policy of this State." Id.

The mere fact than an agreement to pay alimony might be incorporated into a divorce decree and explicitly approved by the court did not render it an unenforceable court order or award of alimony. Cardwell v. Sicola-Cardwell, 978 S.W.2d 722, 724 (Tex.App.-Austin 1998, pet. denied). Instead, it has long been held that such alimony agreements and other marital property agreements, even when incorporated into divorce decrees, are enforceable as contracts and governed by contract law. See, e.g., Allen v. Allen, 717 S.W.2d 311, 313 (Tex.1986); Bishop v. Bishop, 74 S.W.3d 877, 879-80 (Tex.App.-San Antonio 2002, no pet.); Hurley v. Hurley, 960 S.W.2d 287, 288 (Tex.App.-Houston [1st Dist.] 1997, no pet.); Soto v. Soto, 936 S.W.2d 338, 341 (Tex.App.-El Paso 1996, no writ); Harvey v. Harvey, 905 S.W.2d 760, 764 (Tex.App.-Austin 1995, no writ).

This Court has previously summarized the state of the law prior to the enactment of chapter 8 regarding court-ordered alimony and contractual alimony agreements:

Even before Texas courts could impose spousal support obligations at divorce, parties to a divorce could enter into written agreements providing for the maintenance of either spouse. The court could then incorporate the agreement into the final divorce decree. Before statutory approval of such agreements, the Texas Supreme Court had determined that settlement agreements between a husband and wife obligating one spouse to make periodic payments in support of the other spouse after divorce do not constitute court-ordered alimony and therefore are not void in the State of Texas. The fact that a court expressly approves such an agreement and incorporates it into the final divorce decree does not transform the contractual payments into prohibited court-ordered...