Waldrop v. Waldrop

• Decision Date: 07 June 2018
• Docket Number: NO. 02–15–00058–CV,02–15–00058–CV
• Citation: 552 S.W.3d 396
• Parties: Kenneth Ray WALDROP, Appellant v. Teresa WALDROP, Appellee
• Court: Texas Court of Appeals

552 S.W.3d 396

Kenneth Ray WALDROP, Appellant

v.Teresa WALDROP, Appellee

NO. 02–15–00058–CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: June 7, 2018

Jessica Hall Janicek, Koons Fuller, Southlake, TX, Attorney for Appellant.

Theodore Ogilvie, Neal Ashmore Family Law Group, Lewisville, TX, Attorney For Appellee.

Before the court en banc.¹¹

OPINION ON EN BANC RECONSIDERATION

SUE WALKER, JUSTICE

A majority of the court granted Appellant Kenneth Ray Waldrop's motion for en banc reconsideration. Accordingly, we withdraw our September 29, 2016 opinion and judgment, and we substitute the following opinion and judgment.

I. INTRODUCTION

We address two primary issues in this appeal. First, whether the "Contractual Maintenance" provision in Kenneth and Appellee Teresa Waldrop's agreed divorce decree is purely contractual or is spousal maintenance governed by chapter 8 of the family code.¹ For the reasons set forth below, we hold that the Waldrops' Contractual Maintenance provision is purely contractual, and we affirm the trial court's final order in this regard. And second, whether the language of the Waldrops' Contractual Maintenance provision authorizes the trial court to modify or terminate Kenneth's maintenance obligation by court order based on a change in Kenneth's circumstances affecting his maintenance obligation. For the reasons set forth below, we answer this query in the affirmative. We therefore reverse the trial court's final order in this regard and remand this case to the trial court for proceedings consistent with this opinion.

II. FACTUAL AND PROCEDURAL BACKGROUND

On April 26, 2007, the trial court signed Kenneth and Teresa's agreed divorce decree. The agreed decree contained a provision stipulating that it was enforceable as a contract.² The Contractual Maintenance provision in the agreed decree—which is at the heart of this appeal—requires Kenneth to make monthly payments of $3,000 to Teresa. It provides, in pertinent part:

Contractual Maintenance

The Court finds that under the circumstances presented in this case, Teresa Waldrop is eligible for maintenance under the provisions of Texas Family Code Chapter 8.001 et seq[.] and that the parties have agreed that Kenneth Ray Waldrop will pay maintenance to Teresa Waldrop as set out below. The parties have further agreed that Teresa Waldrop shall have all the rights and remedies afforded under the Texas Family Code, Chapter 8.001 et seq. Accordingly, Kenneth Ray Waldrop is ordered to pay as maintenance the sum of $3,000.00 per month to Teresa Waldrop, with the first payment being due on February 1, 2007, and a like amount being due the first day of each consecutive month thereafter until the earliest of one of the following events occurs:

1. death of either Petitioner or Respondent;

2. remarriage of Teresa Waldrop;

3. further orders of the Court affecting the spousal maintenance obligation, including a finding of cohabitation by Teresa Waldrop[;]

4. [t]he first day of the month following the day that Teresa Waldrop becomes eligible to receive and begins to receive her portion of the Kimberly Clark pension awarded to her ... above. In this event, Kenneth Ray Waldrop is ORDERED to pay to Teresa Waldrop as maintenance the difference each month between $3,000.00 and the amount of the benefit received from the Kimberly Clark pension, due and payable on the first day of the first month immediately following the date that Teresa Waldrop becomes eligible to receive and does receive her portion of the Kimberly Clark pension and continuing thereafter until the next occurrence of one of the events 1–3 above. It is the intent of the parties that the $3,000.00 maintenance paid to Teresa Waldrop by Kenneth Ray Waldrop be reduced each month in an amount equal to the amount of the monthly pension benefit received by Teresa Waldrop from Kimberly Clark.

Approximately six years later, Kenneth initiated litigation concerning the Contractual Maintenance provision. Kenneth contended that the agreed decree's Contractual Maintenance provision imposed chapter 8 spousal maintenance and was therefore modifiable by the court upon a showing that Kenneth's circumstances had materially and substantially changed³ and, that in any event, he could petition the trial court to modify or terminate his maintenance obligation for reasons other than the four reasons set forth under paragraph one—either party's death, Teresa's remarriage, a finding of cohabitation by Teresa, or Teresa's receipt of payments from the Kimberly Clark pension. Teresa, on the other hand, argued that the Contractual Maintenance provision was a contractual provision made outside the family code and was not modifiable by the trial court except upon the four circumstances set forth under paragraph one. Ultimately, following a bench trial on Kenneth's declaratory judgment claim and a subsequent hearing on attorney's fees, the trial court signed a final order and made findings of fact and conclusions of law.

The trial court declared that the agreed decree's Contractual Maintenance provision was purely contractual in nature and not subject to the provisions of chapter 8 and that the "further orders of the Court" language limited the trial court's authority to modify or terminate Kenneth's maintenance obligation to the specific circumstances of Kenneth's or Teresa's death, Teresa's remarriage or cohabitation, or Teresa's receipt of payments from the Kimberly Clark pension. The trial court alternatively held that although chapter 8's "material and substantial change in circumstances does not apply here," even if it did, "a material and substantial change in circumstances was not proven by [Kenneth]." The trial court ordered that Kenneth continue making payments under the Contractual Maintenance provision and ordered that he pay Teresa $28,590.53 in attorney's fees.⁴

Kenneth perfected this appeal and raises four issues complaining that the trial court erred by concluding that the Contractual Maintenance provision was contractual in nature and was not subject to the provisions of chapter 8 of the family code, by finding that the Contractual Maintenance provision could not be modified by further court order except in the four specifically identified circumstances, by finding that a material and substantial change in his circumstances had not occurred, and by awarding attorney's fees to Teresa.

III. STANDARD OF REVIEW

We review declaratory judgments under the same standards as other judgments and decrees. Tanglewood Homes Ass'n, Inc. v. Feldman , 436 S.W.3d 48, 65 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) ; McBride v. James , No. 02-09-00320-CV, 2011 WL 1103758, at *5 (Tex. App.—Fort Worth Mar. 24, 2011, pet. denied) (mem. op.). We look to the procedure used to resolve the issue below to determine the standard of review on appeal. Tanglewood Homes Ass'n , 436 S.W.3d at 65–66 ; McBride , 2011 WL 1103758, at *5. When a declaratory judgment is entered after a bench trial, we review the trial court's conclusions of law de novo.

Trinity Drywall Sys., LLC v. Toka Gen. Contractors, Ltd. , 416 S.W.3d 201, 207 (Tex. App.—El Paso 2013, pet. denied) ; Rourk v. Cameron Appraisal Dist. , 305 S.W.3d 231, 234 (Tex. App.—Corpus Christi 2009, pet. denied).

We interpret an agreed divorce decree according to the rules of contract construction. In re W.L.W. , 370 S.W.3d 799, 804 (Tex. App.—Fort Worth 2012, orig. proceeding [mand. denied] ). Our primary concern when interpreting an agreed divorce decree is to ascertain and give effect to the intent of the parties as it is expressed in the agreement. Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983) ; Perry v. Perry , 512 S.W.3d 523, 527 (Tex. App.—Houston [1st Dist.] 2016, no pet.). We examine the decree as a whole to harmonize and give effect to the entire agreement so that none of its provisions will be rendered meaningless. Coker , 650 S.W.2d at 393 ; Perry , 512 S.W.3d at 527.

IV. WHETHER THE TRIAL COURT ERRED BY CONCLUDING THAT THE WALDROPS' CONTRACTUAL MAINTENANCE PROVISION IS PURELY CONTRACTUAL AND IS NOT SUBJECT TO CHAPTER 8

In his first issue, Kenneth argues that the trial court erred by concluding that the Contractual Maintenance provision is purely contractual and is not subject to chapter 8.

A. Contractual Alimony Versus Chapter 8 Maintenance

1. Statutes

Before 1995, a court-ordered award of post-divorce alimony or spousal maintenance was impermissible under the statutes and public policy of Texas. McCollough v. McCollough , 212 S.W.3d 638, 642 (Tex. App.—Austin 2006, no pet.) ; Ex parte Casey , 944 S.W.2d 18, 19 (Tex. App.—Houston [14th Dist.] 1997, orig. proceeding). Nonetheless, the Texas Supreme Court recognized that parties could contractually agree to such awards. McCollough , 212 S.W.3d at 642 (citing Francis v. Francis , 412 S.W.2d 29, 31 (Tex. 1967) ). "The mere fact that 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." Id. By enacting chapter 8 of the family code, effective September 1, 1995, however, the legislature authorized courts to award post-divorce spousal maintenance. Id. at 643. But the legislature strictly limited the circumstances under which spousal maintenance could be awarded. Id.

When the Waldrops' agreed decree was signed, chapter 8 spousal maintenance could be awarded only if

(1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:

(A) within two years before the date on which a suit for dissolution of the marriage is filed; or

(B) while the suit is pending; or

(2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse's minimum reasonable needs,

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