Woolam v. Tussing

• Decision Date: 02 August 2001
• Docket Number: No. 13-00-462-CV,13-00-462-CV
• Citation: 54 S.W.3d 442
• Parties: (Tex.App.-Corpus Christi 2001) KATHLEEN WOOLAM, Appellant, v. PATRICK G. TUSSING, Appellee
• Court: Texas Court of Appeals

Page 442

54 S.W.3d 442 (Tex.App.-Corpus Christi 2001)

KATHLEEN WOOLAM, Appellant, v. PATRICK G. TUSSING, Appellee.

No. 13-00-462-CV

Court of Appeals of Texas, Corpus Christi

August 2, 2001.

On appeal from the 103rd District Court of Cameron County, Texas.

Before Justices Hinojosa, Yanez, and Castillo

OPINION

Justice Hinojosa

Appellant, Kathleen Woolam ("Woolam"), sued appellee, Patrick G. Tussing ("Tussing"), to enforce a spousal support provision contained in an agreement between them incident to their divorce and incorporated into their final divorce decree. Following a bench trial, the trial court rendered judgment in favor of Tussing. This appeal ensued. In four issues, Woolam contends the trial court erred in: (1) not holding Tussing in contempt of court, (2) failing to grant her a judgment against Tussing for breach of contract, (3) failing to grant her a judgment against Tussing for court costs and post-judgment interest, and (4) failing to grant her attorney's fees. We affirm in part, and reverse and remand in part.

A. Background

Tussing and Woolam entered into an agreement incident to their divorce on April 4, 1991. In the agreement, Tussing agreed to pay Woolam contractual alimony. The agreement was incorporated and approved by the trial court in the final decree of divorce signed on April 4, 1991. The agreement provided, in relevant part:

It is the mutual desire of the parties to provide a continuing measure of support for KATHLEEN WOOLAM TUSSING, Receiving Party, after divorce. These support payments undertaken by PATRICK GEORGE TUSSING, Paying Party, are intended to qualify as contractual alimony . . . . This alimony obligation undertaken by Paying Party is contractual in nature and is not an obligation imposed by order or decree of court. . . . PATRICK GEORGE TUSSING will pay to KATHLEEN WOOLAM TUSSING $1,000.00 per month as and for alimony. These payments will be payable for a period of 120 months on or before the 1st day of each month, beginning on the first such day after the date of divorce in this cause. A lump sum payment of $25,000.00 on the 121st month following the date of divorce shall be paid by PATRICK GEORGE TUSSING to KATHLEEN WOOLAM TUSSING.

The decree of divorce further stated:

The parties have consented to the terms of this decree and stipulated it is a contract. 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.

On November 13, 1998, Woolam filed a petition for "Enforcement of Spousal Maintenance and Contempt" against Tussing for failure to pay the contractual alimony. In the petition, Woolam listed the scheduled payments, from April 1992 to November 1998, that Tussing had not paid.¹ She claimed that Tussing owed her $80,000.00 as of November 12, 1998, plus pre-judgment interest until the date of judgment and post-judgment interest until paid. Woolam asked the trial court to award her a "money judgment in the amount of $80,000.00, plus pre-judgment and post-judgment interest, for the unpaid payments to which [she] is entitled. . . . [and] issue an order directing Respondent to pay all such sums due to Petitionerinstanter. . . . [and hold Respondent in contempt] for each violation of the Court's order alleged above." Woolam further requested that she be "granted judgment for each alimony payment due and unpaid by the Respondent from the date of the filing of this Petition until hearing can be had, and that the Respondent be held in contempt, jailed, and fined for each violation of the Court's order that occurs until the hearing can be had." Alternatively, Woolam requested that, "if the Court finds that any part of the order sought to be enforced is not specific enough to be enforced by contempt, the Court enter a clarifying order restating the terms of the order, decree, or judgment in a manner specific enough to allow enforcement by contempt and specifying a reasonable time within which compliance will be required." She also asked that Tussing be ordered to pay reasonable attorney's fees since she had to secure the services of an attorney to enforce and protect her rights. Tussing answered with a sworn general denial, counterclaimed for usury, and raised the defenses of inability to pay, unenforceability except in contract, statute of limitations, payment, no provision in agreement for prejudgment interest, and collateral and promissory estoppel.

The trial court held a hearing on June 18, 1999. At the hearing, Woolam asserted that Tussing had failed to make the payments and requested enforcement of the alimony and "if the Court so deems necessary, to have the Court find him in contempt for his failure to pay the alimony." At the conclusion of the hearing, the trial court denied Tussing's usury and promissory estoppel claims and requested briefs regarding this inability as to contempt issue. This thing being enforceable in contract only, how that language might affect the contempt issue. The statute of limitations as to anything prior to four years before the filing, and then any briefing you want to do regarding the letter and subsequent actions relative to the insurance policy, and any question about attorney fees for the respondent . . . . I am going to ask for the brief additionally to include the question of the issue - as to contempt only, on the post-filing non-payments.

On August 18, 1999, the trial court sent a letter to all counsel stating, in relevant part, as follows:

The court is of the opinion that the alimony in question is contractual alimony which is not enforceable by contempt either by its own terms in the contract or by law. The petitioner has available to her contractual remedies if she chooses to use them but the court is without authority to enforce the provisions of the contractual alimony by contempt.

In the alternative, the petitioner requests that the court clarify the agreement so that it can be enforceable by contempt. The court is of the opinion that the problem is not that the provisions are unclear and require clarification but that they are all too clear and the law does not allow for enforcement of this contractual allegation by contempt.

Woolam filed a motion for reconsideration on September 7, 1999, in which she requested that the court reconsider "Petitioner's request and pleadings for a judgment against Respondent which was not addressed by the court in the court's letter dated 08/18/99. . . ." She further stated:

In Petitioner, KATHLEEN WOOLAM'S Petition for Enforcement of Spousal Maintenance and Contempt, Petitioner pled for a money judgment in the amount of $80,000.00 plus pre-judgment and post-judgment interest for the unpaid alimony payments to which Petitioner is entitled, together with a judgment for attorney's fees and costs.

At the hearing held on Petitioner's motion for enforcement and contempt held June 18, 1999, the Petitioner conclusively proved that the Respondent owed her $86,500.00 in past due delinquent alimony for the time period of April 1, 1992 through June 18, 1999. Respondent did not deny that such alimony payments were not [sic] due, only that the Petitioner could [sic] enforce such payments by contempt. Petitioner further stipulated on the record that she waived her claim for the pre-judgment interest.

The court heard the motion on October 14, 1999. At the hearing, Woolam's counsel argued:

If the Court will recall, we had a hearing regarding some contractual alimony payments that Mr. Tussing was ordered to pay Ms. Woolam, and the testimony was unequivocal that he hadn't paid.

The Court denied my request for contempt, and that's fine, Judge. But in addition thereto, I requested that judgment be entered against Mr. Tussing for the amount that he owed. That what he owed be reduced to judgment, and you did not rule on that, Judge, you did not give her a judgment, but you didn't say she wasn't entitled to the judgment, you just said I hadn't asked for that relief. When in fact, Your Honor, I did. When I looked at my original petition, I requested the Court to enter judgment against him, and also that judgment have post-judgment interest set on it as well.

Now, my claim for pre-judgment interest in the hearing itself, I waived, and said that's no problem, I'll waive that request. But as far as the request for a judgment against Mr. Tussing himself, that was specifically plead in my petition, Judge. And since the evidence is undisputed that he did not pay, I am entitled to my judgment, Your Honor. And I should not be required to replead and start a new lawsuit to get something that I asked for in the first place.

* * * * *

I set out what the obligation was, page 3, how much he owed as of the time of filing, and specifically requested, petitioner requests that Court award the petitioner a money judgment in the amount of $80,000 plus pre-judgment and post-judgment interest for the unpaid payments to which petitioner is entitled.

And then further on, I also referred to the fact that more payments were going to be due between the time of the hearing and the filing of the motion, and asked that "petitioner therefore requests that petitioner be granted judgment for each alimony payment due and unpaid by the respondent from the date of the filing of this petition until hearing can be had, and that the respondent be held in contempt, jailed or fined."

Your Honor, I asked for relief of contempt and judgment. You did not believe that my client was entitled to a contempt, that's fine, but at the least, she is entitled to a judgment. And the evidence was unequivocal and uncontested that he hadn't paid, Judge. The only evidence that he brought that he had paid was one $500.00 payment that was brought before the Court, and I said fine. So the total that was due as of the date of the hearing is $86,500, as of June 18, 1999. And that's what we request judgment for, Your Honor.

Tussin...