Ruhe v. Rowland

Decision Date13 February 1986
Docket NumberNo. 05-85-00578-CV,05-85-00578-CV
Citation706 S.W.2d 709
PartiesWilliam J. RUHE, Jr., Appellant, v. Elizabeth Jane ROWLAND, Appellee.
CourtTexas Court of Appeals

Steven G. Condos, Dallas, for appellant.

Robert J. Matlock, Dallas, for appellee.

Before WHITHAM, GUILLOT and HOWELL, JJ.

WHITHAM, Justice.

Appellant-husband, William J. Ruhe, Jr., appeals from a judgment in favor of the appellee-wife, Elizabeth Jane Rowland, for unpaid child support. We overrule both of the husband's two points of error and affirm.

In his first point of error, the husband contends that the trial court was in error in failing to recognize that an agreement of the parties allegedly announced in open court on October 13, 1983, was an enforceable settlement and compromise agreement regarding the issue of child support. In order to understand our disposition of this point, a brief factual background should be considered. After the parties were divorced in 1981, there were two separate sources of the husband's liability for $1,000 per month in child support: first, an agreement incident to divorce and second, a judgment signed on May 29, 1981. Following May 29, 1981, the record reflects that on October 13, 1983, the child support payments of $1,000 per month were ordered reduced to $320 per month. This order only affected one source of the husband's liability, the judgment. The court did not have authority to modify the terms of the settlement agreement relating to child support in the absence of fraud, accident or mistake except by consent of the parties because the duty to make support payments arises from an agreement of the parties, and their rights and obligations in that respect are governed largely by the rules relating to contracts. Alford v. Alford, 487 S.W.2d 429, 432 (Tex.Civ.App.--Beaumont 1972, writ dism'd w.o.j.). Therefore, the agreement incident to divorce continued to exist as a separate and distinct source of liability. Lee v. Lee, 509 S.W.2d 922, 924 (Tex.Civ.App.--Beaumont 1974, writ ref'd n.r.e.). We conclude that, unless the parties compromised the agreement incident to divorce at the October 13, 1983, hearing, the husband was still obligated to pay $1,000 per month in child support.

TEX.R.CIV.P. 11 states that "[n]o agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record." No evidence of a written agreement was before the trial court. Furthermore, there was no evidence of an agreement made in open court and entered of record modifying the agreement incident to divorce. We conclude, therefore, that the obligation to pay $1000 per month under the agreement incident to divorce continued to exist undisturbed. We overrule appellant's first point of error.

In his second point of error, the husband contends that the trial court was in error in failing to hold that his discharge in bankruptcy acted to bar the wife's claim for contractual child support. On September 23, 1981, the Bankruptcy Court in the United States District Court for the Northern We begin our inquiry into whether the $1,000 per month child support payments were in the nature of support of a child by considering the text of the agreement. The relevant portion of the agreement incident to divorce reads as follows:

District of Texas released the husband from all dischargeable debts. The Bankruptcy Act, however, specifically states that any debt to a spouse, former spouse, or child of a debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other order of a court of record or property settlement agreement is not discharged in bankruptcy. 11 U.S.C.A. § 523(a)(5) (West Supp.1984) (emphasis added). To escape this provision, the husband directs our attention to the Bankruptcy Act, 11 U.S.C.A. § 523(a)(5)(B) (West 1979), which provides that such a debt is dischargeable to the extent that such debt includes a liability designated as alimony, maintenance or support, unless such liability is actually in the nature of alimony, maintenance or support.

SUPPORT OF CHILD

7.01 Cash Payments. The parties agree that WILLIAM JAMES RUHE, JR., shall pay to ELIZABETH JANE RUHE child support in the amount of $1,000.00 per month, with the first payment being due and payable on the 15th day of June, 1981, and a like payment being due and payable on the same day of each month thereafter until the child reaches the age of 18 or is otherwise emancipated; provided, however, that if ELIZABETH JANE RUHE should move from the State of Texas, establishing her domicile and that of MICHAEL JAMES RUHE in a State other than Texas, WILLIAM JAMES RUHE, JR., shall then pay to ELIZABETH JANE RUHE reduced child support in the amount of $750.00 per month, with the first reduced payment being due and payable on the 15th day of the calendar month following the aforementioned change of domicile and a like payment being due and payable on the same day of each month thereafter until the child reaches the age of 18 or is otherwise emancipated. It is the intent of the parties that the aforementioned...

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13 cases
  • Allsup, In Interest of
    • United States
    • Texas Court of Appeals
    • June 18, 1996
    ...or agreement made in open court and entered into the record precludes the enforcement of such an agreement on the issue of child support. 706 S.W.2d 709 (Tex.App.--Dallas 1986, no writ). Once the existence of an oral settlement agreement is disputed, it becomes unenforceable. Kennedy v. Hyd......
  • In re D.S.
    • United States
    • Texas Court of Appeals
    • February 28, 2002
    ...of fraud, mistake, or consent. See Hoffman v. Hoffman, 805 S.W.2d 848, 850 (Tex.App.-Corpus Christi 1991, writ denied); Ruhe v. Rowland, 706 S.W.2d 709, 710 (Tex.App.-Dallas 1986, no writ). However, if a party asks, a trial court can modify a child-support agreement that has been incorporat......
  • Woodall v. Woodall
    • United States
    • Texas Court of Appeals
    • September 24, 1992
    ...its contractual child support obligations may still be liable under the contract for the amount originally agreed upon. Ruhe v. Rowland, 706 S.W.2d 709, 710 (Tex.App.--Dallas 1986, no writ); Hill v. Hill, 819 S.W.2d 570, 571 (Tex.App.--Dallas 1991, n.w.h.). The Ruhe decision holds that the ......
  • Sheldon v. Marshall
    • United States
    • Texas Court of Appeals
    • March 23, 1989
    ...preclude a judicial increase. See Dorshaw v. Dorshaw, 635 S.W.2d 783, 785 (Tex.App.--Corpus Christi 1982, no writ); see also Ruhe v. Rowland, 706 S.W.2d 709, 710 (Tex.App.--Dallas 1986, no writ); Huckeby v. Lawdermilk, 709 S.W.2d 331, 333 (Tex.App.--Eastland 1986, no In conclusion, an appel......
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