Spradley v. Hutchison

• Decision Date: 04 April 1990
• Docket Number: No. 2-88-220-CV,2-88-220-CV
• Citation: 787 S.W.2d 214
• Parties: Barbara (Hutchison) SPRADLEY, Appellant, v. Wayne HUTCHISON, Appellee.
• Court: Texas Court of Appeals

Page 214

787 S.W.2d 214

Barbara (Hutchison) SPRADLEY, Appellant, v. Wayne HUTCHISON, Appellee.

No. 2-88-220-CV.

Court of Appeals of Texas Fort Worth.

April 4, 1990.

Rehearing Overruled April 25, 1990.

Atkins & McLarty, Bill Atkins, Arlington, for appellant.

Pierson, Baker & Ray, Grey Pierson, Arlington, Phillip Galyen, Bedford, for appellee.

Before WEAVER, C.J., and JOE SPURLOCK, II and LATTIMORE, JJ.

OPINION

WEAVER, Chief Justice.

Barbara Spradley, appellant, appeals the trial court's order enforcing the terms of an agreed property settlement incorporated into a decree of divorce. This action was brought by appellee, appellant's former husband, Wayne Hutchison, to enforce terms of the agreement in the decree requiring appellant to pay appellee $26,356 representing 40% of the value of the community interest in the former community residence, the residence having been awarded to appellant. Appellant was allowed three years to make this payment. Upon the expiration of this period and appellant's failure to make payment, appellee brought this suit to collect the money due under the decree. See TEX.FAM.CODE ANN. secs. 3.70 and 3.71(a) (Vernon Supp.1990). During these proceedings, the trial court ordered appellant to pay the $26,356 due appellee under the agreed judgment into the registry of the court pending a final disposition of this action.

The record also shows that appellee failed to provide health insurance coverage for the children of the marriage, as the decree required, and that appellee claimed all income and tax benefits from a Florida real estate tax shelter, even though the decree awarded appellant a one-half interest in that property. The trial court's order appealed here awarded appellee $22,840.21 plus interest, from the funds appellant had deposited into the court's registry. This amount represents the $26,356 due appellee under the decree, offset by: 1) medical expenses of the children incurred by appellant for which appellee should have provided insurance ($1,000.29); 2) one-half of the insurance premiums which appellee should have paid ($565.50); 3) the value of appellant's one-half interest in the Florida real estate ($1,250 + $100 interest); and 4) $600 of appellant's attorney's fees.

We affirm the trial court's order.

Appellant alleges four points of error by the trial court: 1) error in reforming the agreed property settlement (which had been incorporated into the divorce decree) and ordering appellant to pay the sum of $26,356 into the registry of the court upon penalty of the appointment of a receiver to sell the home; 2) error in awarding appellee $22,840.21 and interest thereon from the sum deposited into the court's registry; 3) error in failing to grant appellant's motion for judgment and failing to return to appellant the money placed in the court's registry, plus interest; and 4) error in failing to award appellant attorney's fees of $2,200.

We first dispose of points of error one and four, as they were not preserved for appellate review. Point one is multifarious, and we must break it down for analysis: a) the alleged reformation of the decree; and b) the order that appellant pay $26,356 into the trial court's registry.

As to the first portion, alleged reformation of the decree, we observe that appellant made no objection or complaint to the trial court, anywhere in the record, that the trial court was attempting, with its order of enforcement, to effect a modification of the settlement agreement in the divorce decree. Having failed to present this complaint to the trial court at any time, so that it might correct such error, if any, appellant may not make such complaint for the first time on appeal. Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373 (Tex.1988) (per curiam); TEX.R.APP.P. 52(a). However, we acknowledge that the trial court lacks the power to issue an order "that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce." TEX.FAM.CODE ANN. sec. 3.71(b) (Vernon Supp.1990). If the order appealed from here did so modify, it might well be fundamental error as beyond the trial court's jurisdiction. See Cox v. Johnson, 638 S.W.2d 867, 868 (Tex.1982) (per curiam); Texas Indus. Traffic League v. Railroad Comm'n, 633 S.W.2d 821, 823 (Tex.1982) (per curiam).

Since this alleged modification could amount to fundamental error, we must determine whether the order actually so modified. We hold it did not. The order on appeal does not purport to change anything in the prior order. It merely grants the relief appellee requested, that appellant pay the amount she agreed to pay in the agreed judgment, offset by appellee's failure to comply with other portions of the judgment set forth above. No attempt is made by the order to alter the prior agreed judgment. Indeed, it seems to be simply an effort to accurately enforce that judgment. While the settlement agreement in the divorce decree awarded appellant a one-half interest in the Florida property, the order here simply provided an offset in appellee's recovery by the value of that one-half interest ($1,250). We hold that this disposition of that one-half interest does not change the substantive division of property approved in the divorce decree, because appellant realized that interest. Thus, the trial court did not act beyond its power as proscribed by TEX.FAM.CODE ANN. sec. 3.71(b).

One arguable variance between the agreed judgment and the enforcement order relates to health insurance premiums paid by appellant to cover the children, which appellee had agreed to pay. While appellee was obligated to pay all of the children's health insurance costs, the order only offset appellee's recovery by one-half in regards to appellant's expense to cover the children ($565.50). However, the court also offset appellee's recovery for medical expenses incurred by these children ($1,000.29) which appellee had not agreed to pay, but should have provided insurance against. We hold that even this potential variance does not amount to a modification of the original decree, since, again, the order is not purporting to change the agreed judgment. At most, the court appears to be using this approach to best compensate appellant for the damages caused by appellee's failure to insure the children as he was required to do. As we discuss below, the trial court has some discretion to take such issues into account in determining the measure of damages the enforcing party is entitled to when both parties have disobeyed agreed judgment provisions. Because we hold the trial court's order on appeal does not modify the agreed property settlement, we overrule the first portion of point of error one.

As to the second part of point one, alleged error of the trial court in ordering the deposit of $26,356 into the registry of the court upon threat of placing the home into receivership, we again find appellant made no complaint in the record to the trial court. During the proceedings below, the trial court entered this order for the deposit of the money. The parties stipulated that prior to that order "the Court advised the parties that a receiver would be appointed to sell the property [unless appellant agreed to pay appellee the $26,356 due under the divorce decree]." The parties went on to stipulate that appellant "agreed" that she would arrange for a loan to pay the amount into the registry of the court. There is no record that appellant ever objected to the payment into the court's registry, and indeed seems to have offered or accepted this arrangement as a compromise to the threatened receivership or to making immediate payment to appellee. The trial court apparently having made its ultimatum clear, appellant could have objected to the prospect of a receivership or to the payment of the money to appellee, and either objection may have preserved this point even if appellant proposed or agreed to this compromise. However, appellant failed to make these possible objections as well. Having failed to complain of this error, if any, on the record to the trial court, so that court might correct such error, appellant may not so complain for the first time on appeal. Lemons, 747 S.W.2d at 373; TEX.R.APP.P. 52(a). Point of error one is overruled.

In point of error four, alleged error in failing to award attorney's fees of $2,200, we find, again, appellant failed to preserve error. At the only hearing on the record in this case, the parties stipulated that appellant had incurred $2,200 in attorney's fees. Following the hearing, appellant filed her "Motion For Judgment" which included a simple request for "attorney's fees." In the order before us on appeal, the trial court awarded appellant attorney's fees of $600 as an offset to appellee's recovery. At no time after the order did appellant complain to the trial court, in any way, that the $600 award of attorney's fees was in error. Having failed to complain of this alleged error, if any, on the record to the trial court, so that such error might be corrected by that court, appellant may not so complain for the first time on appeal. Lemons, 747 S.W.2d at 373; TEX.R.APP.P. 52(a). Point of error four is overruled.

Points of error two and three allege essentially the same error. Point two alleges error in granting relief to appellee ($22,840.21), and point three alleges error in failing to grant appellant's motion for judgment asking that appellant take nothing (and that the money appellant placed in the registry of the court be returned to her). These points turn on the issue of whether the trial court had authority to enforce the agreed judgment against appellant given that appellee had failed to comply with other portions of the agreed judgment. In other words, does the affirmative defense of breach of contract bar appellee's recovery as to other provisions of the agreed judgment?

Appellant does not dispute that she was obligated under...