Summary
stating that the "mere fact a trial court approves a contractual spousal support agreement and incorporates it into the divorce decree does not transform the support obligation into court-ordered maintenance subject to the . . . provisions of chapter 8"
Summary of this case from Keller v. KellerOpinion
No. 05-14-01590-CV
02-09-2016
IN THE INTEREST OF L.R.P. AND H.A.P.
On Appeal from the 366th Judicial District Court Collin County, Texas
Trial Court Cause No. 366-54464-2010
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Fillmore
In her sole issue on appeal, appellant Pamela Sue Niemczyk contends the trial court abused its discretion by dismissing with prejudice her "Petition for Enforcement of Spousal Maintenance." We affirm the trial court's order dismissing with prejudice Niemczyk's petition for enforcement.
Background
Rodney Dean Patten and Niemczyk married in December 1990 and separated in July 2010. They agreed to divorce and to the terms of a divorce decree. Pro se at the time, Patten filed a petition for divorce in September 2010. Niemczyk, also pro se at the time, filed a notarized waiver of service of citation in the divorce proceeding. In that waiver of service, Niemczyk swore Patten had provided her a copy of the petition for divorce and that she read and understood the petition. On November 3, 2010, the trial court signed the final divorce decree, which both Patten and Niemczyk had signed as reflecting their agreement.
Appellant's maiden name was Pamela Sue Tesone. When appellant married Patten, she changed her name to Pamela Tesone Patten. When appellant and Patten divorced, she changed her surname to her maiden name. Thereafter, appellant remarried and changed her surname to Niemczyk.
The divorce decree includes the following: "*see Addendum for additional agreements*." The Addendum contains sections entitled "General," "Support," "Custody," "Division of Assets," and "Faith." The following is included in the "Support" section of Addendum "agreements":
During this time [Patten] shall provide for the children's financial needs and contribute $750 a month for [Niemczyk] beginning September 1, 2010 and ending with the sale of the house or the payment of the debt, whichever comes first.
* * *
Spousal support shall continue at $750 per month until the sale of our home. At that point it will be increased to $1800 per month for remainder of 3 years from the date of our divorce.
The home Patten and Niemczyk owned during their marriage was sold in July 2011. Patten made the spousal support payments referenced above to Niemczyk through July 2011. Niemczyk remarried in July 2011. Patten believed that, pursuant to section 8.056 of the family code, he was no longer obligated to pay spousal support to Niemczyk after her remarriage, and he ceased the spousal support payments.
On March 26, 2014, Niemczyk, represented by counsel, filed a "Petition for Enforcement of Spousal Maintenance" in which she asserted Patten was "in contempt of court by failing to pay [her] the full amount of spousal maintenance due from August, 2011 thru November 2013 totaling 27 payments," an arrearage of $46,500. Niemczyk requested that the trial court find Patten in contempt of court and impose a fine for each "violation" alleged. Niemczyk also requested that the trial court "issue an order for the withholding of [Patten's] income for the payment of the arrearage." Finally, Niemczyk requested that, if the trial court found that "any part of the order sought to be enforced is not specific enough to be enforced by contempt," the trial court enter an 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." Niemczyk also sought attorney's fees and post-judgment interest.
On March 20, 2014, Niemczyk filed a "Petition to Modify Parent-Child Relationship." That matter is not a subject of this appeal. --------
Patten, represented by counsel, filed an answer to the petition for enforcement and a motion to dismiss the petition with prejudice. In the motion to dismiss, Patten contended the spousal support agreed to in the Addendum to the divorce decree constitutes statutory spousal maintenance and, pursuant to section 8.056 of the family code, he was entitled to terminate the agreed spousal maintenance payments when Niemczyk remarried in July 2011.
Following a hearing on Niemczyk's petition for enforcement and Patten's motion to dismiss that action, the trial court signed an order dismissing with prejudice the petition for enforcement. In that order, the trial court "determined that the 'spousal support' as referred to in the Addendum attached to the Decree of Divorce . . . is not enforceable by contempt . . . ." Niemczyk's motion for new trial was overruled by operation of law, and she filed this appeal of the trial court's order dismissing the enforcement action with prejudice.
Contractual Spousal Support
In a single issue, Niemczyk contends the trial court abused its discretion in dismissing with prejudice her cause of action for enforcement on the basis the spousal support agreement is not enforceable through a contempt proceeding. On appeal, Niemczyk asserts the spousal support agreement, although contractual in nature, required the periodic payment of spousal maintenance as defined in chapter 8 of the family code. On appeal, Patten contends the spousal support agreement is governed by section 7.006 of the family code and is not enforceable by contempt because the divorce decree contains no decretal language ordering him to make spousal support payments that would be subject to a contempt proceeding under chapters 8 or 9 of the family code. In the alternative, Patten argues that if it is concluded the spousal support agreement is governed by provisions of chapter 8 of the family code relating to spousal maintenance, his obligation to make payments of spousal maintenance terminated upon Niemczyk's July 2011 remarriage. See TEX. FAM. CODE ANN. § 8.056(a) (West Supp. 2015) ("The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the obligee.").
Standard of Review
We review a trial court's ruling on a post-divorce motion for enforcement of a divorce decree under an abuse of discretion standard. In re L.T.H., 418 S.W.3d 876, 880 (Tex. App.—Dallas 2013, pet. denied); Hollingsworth v. Hollingsworth, 274 S.W.3d 811, 815 (Tex. App.—Dallas 2008, no pet.). The trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Applicable Law
Section 7.006(a) of the family code provides, "To promote amicable settlement of disputes in a suit for divorce . . ., spouses may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse." TEX. FAM. CODE ANN. § 7.006(a) (West 2006). When such an agreement is incorporated into a divorce decree, it is considered a contract, Traylor v. Traylor, 789 S.W.2d 701, 703 (Tex. App.—Texarkana 1990, no writ), and it is interpreted under general contract law. Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex. App.—Dallas 2008, no pet.); see also Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993) (orig. proceeding) (person may contract to support his spouse, and that obligation, to the extent it exceeds his legal duty, is a debt); Ex parte Duncan, 462 S.W.2d 336, 337-38 (Tex. Civ. App.—Houston [1st Dist.] 1970, orig. proceeding) (in absence of language ordering or otherwise directing relator to make payment pursuant to agreement on community property division, payments rested purely in contract).
An action to enforce a divorce decree generally is governed by chapter 9 of the family code. See TEX. FAM. CODE ANN. §§ 9.001-.302 (West 2006 & Supp. 2015); Woolam v. Tussing, 54 S.W.3d 442, 449 (Tex. App.—Corpus Christi 2001, no pet.). A provision in a divorce decree ordering payment of support to a former spouse may be enforced as a contractual obligation; however, such a provision cannot be enforced by contempt unless it is authorized by statute or constitutional provision. In re Green, 221 S.W.3d 645, 648 (Tex. 2007) (per curiam) (orig. proceeding) (one spouse's voluntary agreement to support the other, to the extent it exceeds a legal duty, is contractual debt that cannot be enforced by contempt; failure to pay a private alimony debt, even one referenced in a court order, is not contempt punishable by imprisonment); Hall, 854 S.W.2d at 659; see also TEX. CONST. art. I, § 18 ("No person shall ever be imprisoned for debt."). With exceptions inapplicable here, an award of money payable in future installments in the nature of a debt is not enforceable by contempt. See TEX. FAM. CODE ANN. § 9.012(b) (West 2006).
Chapter 8 of the family code authorizes a trial court to order spousal maintenance, broadly defined as "an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse." TEX. FAM. CODE ANN. § 8.001(1) (West 2006). Subject to duration limitations of section 8.054, a trial court may order spousal maintenance only if the spouse seeking maintenance will lack sufficient property, including the spouse's separate property, on dissolution of the marriage to provide for the spouse's minimum reasonable needs and (1) the spouse from whom maintenance is requested has committed a recent act of family violence against the spouse seeking maintenance or a child, or (2) the spouse seeking maintenance cannot support himself or herself because of a disability, the marriage lasted at least ten years and the spouse seeking maintenance lacks sufficient income to provide for the spouse's minimum reasonable needs, or the spouse seeking maintenance is custodian of a child of the marriage requiring substantial care and personal supervision because of a disability, thus preventing the spouse from earning sufficient income to provide for the spouse's minimum reasonable needs. TEX. FAM. CODE ANN. § 8.051; Green, 221 S.W.3d at 647; see also TEX. FAM. CODE ANN. § 8.054 (West Supp. 2015). If a trial court determines that a spouse is eligible to receive maintenance pursuant to chapter 8, it shall determine the nature, amount, duration, and manner of periodic payments by considering relevant factors, including the financial resources, education, and employment skills of the spouse seeking maintenance. TEX. FAM. CODE ANN. § 8.052 (West Supp. 2015). While section 8.059 of the family code authorizes a trial court to enforce by contempt a spousal maintenance order or an agreement for periodic payments of spousal maintenance entered into between the parties and approved by the court pursuant to chapter 8, TEX. FAM. CODE ANN. § 8.059(a) (West Supp. 2015), the maintenance obligation, whether contractual or court-imposed, is punishable by contempt only if it meets chapter 8's requirements. Green, 221 S.W.3d at 648. Accordingly, the mere fact a trial court approves a contractual spousal support agreement and incorporates it into the divorce decree does not transform the support obligation into court-ordered maintenance subject to the termination, modification, and enforcement provisions of chapter 8 of the family code. Id.; see Cardwell v. Sicola-Cardwell, 978 S.W.2d 722, 724 (Tex. App.—Austin 1998, pet. denied).
Discussion
"Civil contempt in Texas is the process by which a court exerts its judicial authority to compel obedience to some order of the court." In re Coppock, 277 S.W.3d 417, 419 (Tex. 2009) (orig. proceeding) (quoting Ex parte Padron, 565 S.W.2d 921, 924 (Tex. 1978) (orig. proceeding)). The Texas Supreme Court "has made clear that command language is essential to create an order enforceable by contempt." Id. "Merely incorporating an agreement into the recitals of a divorce decree, without a mandate from the court, is not sufficient." Id. For a person to be held in contempt for disobeying a court decree, "the decree must spell out the details of compliance in clear, specific, and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him." Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding). There is no decretal language in the divorce decree ordering or commanding Patten to make the agreed spousal support payments. Patten cannot be held in contempt of court for failing to take an action the court never ordered him to take. See In re Dupree, 118 S.W.3d 911, 916 (Tex. App.—Dallas 2003, orig. proceeding [pet. denied]) (obligor under spousal alimony or support agreement "cannot be held in contempt of court for failing to take an action the court never ordered him to take"); see also Ex parte Padron, 565 S.W.2d at 921) (to sentence a party to confinement for contempt of a prior court order, that order must have "unequivocally commanded" the party to perform the duties or obligations imposed on him) (citing Slavin, 412 S.W. 2d at 44).
Patten's obligation to make support payments to Neimczyk arose out of an agreement between the parties contained in the Addendum that is incorporated by reference in the final divorce decree, as authorized by section 7.006 of the family code. The divorce decree contains no reference to any spousal maintenance authorized pursuant to chapter 8 of the family code. See McCullough v. McCullough, 212 S.W.3d 638, 646 (Tex. App.—Austin 2006, no pet.) (agreement incident to divorce manifested no intent that alimony obligation be governed by chapter 8 of the family code). Further, there are no references in the divorce decree, or in the spousal support agreement, to Niemczyk's eligibility for maintenance or the factors considered in determining the nature, amount, duration, and manner of maintenance payments, pursuant to chapter 8 of the family code. See TEX. FAM. CODE ANN. §§ 8.051 & 8.052. Moreover, the agreement for spousal support contains no provision for termination of payments upon Niemcyzk's remarriage as authorized in section 8.056(a) of the family code. See TEX. FAM. CODE ANN. § 8.056(a). When "an agreement is executed by the parties and incorporated into the judgment of divorce, it is binding on the parties, and is interpreted under general contract law." Schwartz, 247 S.W.3d at 806 (citations omitted). "The fact that a court expressly approves such an agreement and incorporates it into the final divorce decree does not transform contractual alimony payments into court-ordered maintenance payments subject to the termination and modification provisions of chapter 8 of the family code." McCullough, 212 S.W.3d at 648; see also Kee v. Kee, 307 S.W.3d 812, 814 (Tex. App.—Dallas 2010, pet. denied) (chapter 8 does not apply to an alimony provision in a divorce decree that restates parties' contractual agreement for alimony).
Although in Niemczyk's "Motion for Judge to Reconsider Judgment," she contended that "the spousal support referred to by the Addendum attached to the Decree of Divorce is enforceable by contempt," at the hearing of that motion, her counsel agreed that the spousal support is "not enforceable with any sort of jail time or contempt." Here, the only relief sought by Niemczyk in her "Petition for Enforcement of Spousal Maintenance" was an order finding Patten in contempt and fining him for each alleged "violation," an order authorizing the withholding of Patten's income to satisfy the support arrearage, and, if necessary, a "clarifying order" sufficient to allow enforcement by contempt and specifying a time within which compliance with a contempt order would be required. Niemczyk did not attempt to enforce the spousal support agreement as a contract and did not seek contractual relief for alleged breach of contract.
We conclude the spousal support provided for in the divorce decree arises not from decretal language in the decree commanding Patten to provide the support or from an agreement between the parties and approved by the trial court pursuant to chapter 8 of the family code, but rather the support obligation arises from a contract between the parties that was incorporated into the decree pursuant to section 7.006(a) of the family code. The spousal support obligation is therefore governed by contract law. See Schwartz, 247 S.W.3d at 806. Consequently, the trial court would have had no authority to enforce the spousal support agreement pursuant to sections 8.059(a) or 9.012(b) of the family code. See Dupree, 118 S.W.3d at 916 (divorce decree's contractual alimony was considered contract and was not agreement for statutory spousal maintenance; therefore, trial court had no authority to enforce contractual alimony obligation by contempt).
In her petition for enforcement by contempt, Niemczyk also requested an order authorizing the withholding of Patten's income to satisfy the alleged arrearage in spousal support payments. However, "[t]he trial court may not issue an order of income withholding for spousal maintenance to enforce a contractual alimony obligation," Holland v. Holland, 357 S.W.3d 192, 199 (Tex. App.—Dallas 2012, no pet.), where the parties' agreement did not provide for enforcement by income withholding, Kee, 307 S.W.3d at 816. In this case, the spousal support agreement of the parties did not provide for enforcement by means of income withholding. If the trial court found "any part of the order sought to be enforced is not specific enough to be enforced by contempt," Niemczyk also sought 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 time within which compliance will be required." Here, the spousal support agreement did not provide for the parties' modification of its terms. Because the divorce decree simply incorporated the spousal support agreement reached by Patten and Niemczyk, the trial court had no power to supply terms, provisions, or conditions not previously agreed upon by the parties. See L.T.H., 418 S.W.3d at 882, 883 (absent fraud, accident, or mistake, trial court does not have authority to modify or set aside the spousal support provisions absent consent of the parties); see also Schwartz, 247 S.W.3d at 806 ("As with any other contract, absent consent of the parties, the provisions of the agreement will not be modified or set aside except for fraud, accident, or mutual mistake of fact."); Ammann v. Ammann, No. 03-09-00177-CV, 2010 WL 4260955, at *3 (Tex. App.—Austin Oct. 28, 2010, no pet.) (mem. op.) (citing McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex. App.—Dallas 1992, writ denied)).
Conclusion
Because we conclude chapter 8 of the family code does not apply to Patten's contractual spousal support of Niemczyk, and the contractual spousal support in this case is a debt that cannot be enforced by contempt, the trial court did not err by dismissing Niemczyk's petition for enforcement. We resolve Niemczyk's sole issue against her.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE 141590F.P05
JUDGMENT
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-54464-2010.
Opinion delivered by Justice Fillmore, Justices Myers and Whitehill participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Rodney Dean Patten recover his costs of this appeal from appellant Pamela Sue Niemczyk. Judgment entered this 9th day of February, 2016.