Pettit v. Pettit

• Decision Date: 31 October 1991
• Docket Number: No. 09-90-119,09-90-119
• Citation: 818 S.W.2d 561
• Parties: Katherine Ernestine PETTIT, Appellant, v. Carter W. PETTIT, Appellee. CV.
• Court: Texas Court of Appeals

Page 561

818 S.W.2d 561

Katherine Ernestine PETTIT, Appellant, v. Carter W. PETTIT, Appellee.

No. 09-90-119 CV.

Court of Appeals of Texas Beaumont.

Oct. 31, 1991.

John F. Pettit, Conroe, for appellant.

Jimmie Price, Price & Price, Conroe, for appellee.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BURGESS, Justice.

This is an appeal from the granting of a motion for summary judgment. Appellant and appellee were divorced in 1987. They had entered into an agreement incident to divorce and that agreement had been incorporated into an agreed decree. In 1989 appellant filed a motion to increase the child support payments. Appellee filed a motion for summary judgment on the basis that the agreement was a contract and that the consent decree was not subject to modification absent a showing of fraud, accident, mistake or mutual consent of the parties. The motion was based solely upon the legal issue that the contractual agreement precluded the trial court from considering the modification. The motion was not based upon the premise that there were no genuine issues of material fact concerning any changed conditions. The trial court well understood the legal issue before the court when the order granting the motion for summary judgment stated: "Accordingly, if a consent agreement [sic] concerning Chapter 14 subject matter--i.e., conservatorship, support and possession of children, is incorporated into a divorce decree, found by the court to be in the best interest of the children, and provides that the terms are enforceable as a contract, the trial court may not modify the provisions of such agreement." Appellant now appeals.

The trial court obviously felt he was without authority to consider the factual allegations of the motion. The courts of appeal are divided concerning this legal issue. In Comeaux v. Comeaux, 767 S.W.2d 500 (Tex.App.--Beaumont 1989, no writ) this court, with this writer dissenting, reversed a trial court's holding that a contractual child support agreement could not be modified. As part of its rationale, the court stated at 503:

We take the position that child support agreements are sui generis. They have a purpose and a place all their own. Child support payments should be treated in a separate manner and in a mode that is consistent with their true function and correct purpose. We have done so. We reject the sterile concept that, if the child support payments are approved in the divorce decree, the same cannot be, as asserted by Appellee, attacked collaterally once the judgment is final. We determine that such conceptualistic, unrealistic thinking is simply out of place in the modern-day world of numerous, tragic divorces involving minor children.

As early as 1969, the Amarillo court in Duke v. Duke, 448 S.W.2d 200 (Tex.Civ.App.--Amarillo 1969, no writ) held that contractual child support provisions were subject to court modification. See also Matter of Marriage of Edwards, 804 S.W.2d 653 (Tex.App.--Amarillo 1991, no writ). In Alford v. Alford, 487 S.W.2d 429 (Tex.Civ.App.--Beaumont 1972, writ dism'd w.o.j.) this court noted the rule that a court did not have authority to modify the terms of a settlement agreement except by consent of the parties. This rule was again followed in Lee v. Lee, 509 S.W.2d 922 (Tex.Civ.App.--Beaumont 1974, writ ref'd n.r.e.). Ruhe v. Rowland, 706 S.W.2d 709 (Tex.App.--Dallas 1986, no writ) adopted the rule for the Dallas court. Later that same year, the Eastland court in Huckeby v. Lawdermilk, 709 S.W.2d 331 (Tex.App.--Eastland 1986, no writ) rejected Ruhe, and held a court could modify a child support order despite a contractual agreement. This holding was reaffirmed in Woodley v. Bruton, 796 S.W.2d 304 (Tex.App.--Eastland 1990, writ denied). The majority opinion in Dorshaw v. Dorshaw, 635 S.W.2d 783 (Tex.App.--Corpus Christi 1982, no writ) acknowledged the holding of Duke as guidance, but found a distinction in their case due to the absence of any provision that the child support agreement should be enforceable as a contract. However, the concurrence in Dorshaw rejected the holding in Duke and any inference in the Dorshaw majority opinion which stood for the proposition that the court could modify a contractual provision when it appeared in the best interest of the child. Recently in Hoffman v. Hoffman, 805 S.W.2d 848 (Tex.App.--Corpus Christi 1991, writ denied) the court found a decree could be modified since it was separate and distinct from the contractual agreement. Most recently in Hill v. Hill, 819 S.W.2d 570 (Tex.App.--Dallas 1991, n.w.h.) Chief Justice Enoch declared it against public policy to allow the common law of contracts to "effectively prevent other courts from carrying out their duty to increase the amount of court-ordered child support when required by the best interest of the children...."

While this is by no means an exhaustive study, it appears the Amarillo, Eastland, Corpus Christi and Dallas Courts of Appeal now adhere to the modification rule. Our court was one of the early leaders in the "a contract is a contract" rule with Comeaux being a deviation. Not only does stare decisis dictate following Comeaux and allowing a modification hearing, but it is the better reasoned rule to allow courts to perform their statutory function and consider modifications in the face of contractual agreements. Consequently we reverse the summary judgment.

REVERSED AND REMANDED.

BROOKSHIRE, Justice dissenting.

Appeal of the granting of a motion for summary judgment. The appellant and appellee were divorced by agreed or consent decree on January 16, 1987. On August 23, 1989, the appellant filed a motion to modify seeking an increase in child support payments. This motion was not signed by Katherine Pettit or verified by any one. Appellee filed a motion for summary judgment on the basis that the Agreement Incident to Divorce and the Decree were contractual in nature and that the consent Decree was not subject to modification absent a showing of fraud, accident, mistake or mutual consent of the parties. The trial court, after duly considering the motion for summary judgment and the response, entered its order granting the said motion. The appellant now appeals.

The appellant avers two points of error. They are as follows:

There are genuine issues of material fact that preclude the granting of summary judgment in favor of CARTER W. PETTIT, as appears from the pleadings and affidavits submitted in opposition to the Motion for Summary Judgment.

The Court erred in granting the summary judgment in that although the parties agreed that child support was fixed in the divorce decree, they further agreed that it was subject to further order of the Court, concerning any modification.

For the sake of clarity, the pertinent provisions of the agreed consent order or decree are set forth as follows:

"The Court finds that Petitioner and Respondent have entered into an agreement containing provisions for conservatorship and support of the child. The Court finds that the agreement is in the child's best interest.

"The best interest of the child will be served by appointing Petitioner and Respondent Joint Managing Conservators of the child.

* * * * * *

"IT IS ORDERED, ADJUDGED AND DECREED that CARTER WAYNE PETTIT will pay to KATHERINE ERNESTINE PETTIT child support of $150.00 per month payable on or before January 5, 1987 and a like amount be due and payable on the same day of each and every month thereafter until the child reaches the age of 18 years, and further so long as the child is fully enrolled in an accredited primary or secondary school in a program leading toward a high school diploma, in which the child graduates, marries, dies, or the child's disabilities are otherwise removed for general purposes; the child is otherwise emancipated, or until further order of the Court.

* * * * * *

"SIGNED this 16 day of January, 1987.

/s/ JOHN MARTIN

JUDGE PRESIDING

Sitting as 221st

"APPROVED AS TO FORM:

/s/JOHN F. PETTIT

JOHN F. PETTIT

Attorney for Petitioner

500 Interfirst Bank Bldg.

Conroe, Texas 77301

Telephone: 539-3110

TBC# 15862000

/s/KATHERINE ERNESTINE PETTIT

KATHERINE ERNESTINE PETTIT

Petitioner

/s/CARTER WAYNE PETTIT

CARTER WAYNE PETTIT

Respondent"

Importantly, the Agreed Decree included pertinent language of Chapter 14 of the Texas Family Code.

Additionally, the Divorce Decree provides the following:

"The Court finds the parties have entered into an Agreement Incident to Divorce. The Court approves the agreement and makes it part of the decree as if it were recited verbatim."

The Agreement Incident to Divorce provides as follows:

"The Parties agree as follows:

"4.06 Child Support

"Concerning child support, the parties stipulate as follows:

"1. That they presently earn approximately the same income, that being approximately $28,000.00 per year; that CARTER will pay child support to KATHERINE in a specified amount to equalize the burden for providing for support to the child as being in the best interest of the child and based upon the fact that KATHERINE will have possession of the child for most of the time as the primary custodial parent. Further, that good cause exists that income withholding not be provided in this case.

"Accordingly, CARTER will pay to KATHERINE child support of $150.00 per month payable on or before January 5, 1987 and a like amount be due and payable on the same day of each and every month thereafter until the child reaches the age of 18 years, and further so long as the child is fully enrolled in an accredited primary or secondary school in a program leading toward a high school diploma, in which the child graduates, marries, dies, or the child's disabilities are otherwise removed for general purposes; the child is otherwise emancipated, or until further order of the Court.

* * * * * *

"ARTICLE 7

"General Provisions

"7.01 Approval by Court

This agreement will be submitted for approval...