Opinion
No. 14-01-00854-CV
Majority and Dissenting Opinions Rehearing filed September 25, 2003.
On Appeal from the 309th District Court, Harris County, Texas, Trial Court Cause No. 93-06003A
Appellee's Motion for Rehearing Overruled; Affirmed in part, Reversed and Remanded in part; Opinion Issued April 17, 2003, Withdrawn;
Panel consists of Justices HUDSON, EDELMAN, and SEYMORE (Justice SEYMORE DISSENTING).
MAJORITY OPINION
MOTION FOR REHEARING
Appellee's motion for rehearing is overruled, our opinion issued in this case on April 17, 2003 is withdrawn, and the following majority and dissenting opinions on motion for rehearing are issued in its place.
In this case to enforce an agreement incident to divorce, Margaret Dye Sudan, now known as Maggie Mackenzie ("Mackenzie"), appeals a summary judgment granted in favor of Philip P. Sudan, Jr. ("Sudan") and the denial of her own motion for summary judgment. We affirm, in part, and reverse and remand, in part.
Background
In 1993, the parties entered into an agreement incident to their divorce (the "agreement") that was incorporated into their divorce decree (the "decree"). In 1998, the parties entered into an amendment to the agreement (the "amendment"). Sudan thereafter made no further payments to Mackenzie under the agreement. In 1999, Mackenzie sued Sudan for rescission of the amendment, breach of the agreement, intentional infliction of emotional distress, and tortious interference. After the parties filed cross motions for summary judgment, the trial court granted Sudan a partial summary judgment, denied Mackenzie's motion, and severed the remaining claims.
At the time of the parties' divorce, they had two minor children (the "children") born in 1981 and 1982, respectively.
This is according to Mackenzie's affidavit, which we take as true for summary judgment purposes.
Although we do not address those remaining claims (for non-payment of child support, life insurance premiums, and attorney's fees), we recognize that any resolution of the issues presented in this case could affect the determination of those claims. Similarly, the dissent makes reference to a notation by the associate judge denying a motion for contempt (which is not part of this appeal) on the ground that the children lived with Sudan since 1994 and voluntary relinquishment is a defense. See Tex. Fam. Code Ann. § 157.008(a), (b) (Vernon 2002). However, because the child support claim was severed, remains to be determined, and is not part of this appeal, and because no such affirmative defense was asserted in the summary judgment being appealed in this case, it is not before us and can have no effect on our determination of the issues that have been properly presented.
Standard of Review
A traditional summary judgment may be granted if the motion and summary judgment evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or response. Tex.R.Civ.P. 166a(c). In reviewing a traditional motion for summary judgment, we take all evidence favorable to the nonmovant as true and resolve every doubt, and indulge every reasonable inference, in the nonmovant's favor. Texas Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex. 2002).
A no-evidence motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. See Tex.R.Civ.P. 166a(i). In reviewing a no-evidence summary judgment, we review the record in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences, to determine whether more than a scintilla of probative evidence was presented on the challenged elements of the nonmovant's claim. See King Ranch, Inc. v. Chapman, 46 Tex. Sup.Ct. J. 1093, 1097 (August 28, 2003).
Where summary judgment has been requested by both sides, granted to one, and denied to the other, we determine all questions presented and, if the judgment is in error, render that which the trial court should have rendered. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605 (Tex. 2002).
Lack of Court Approval for Amendment
Mackenzie's first and fourth issues challenge the granting of Sudan's motion for summary judgment to the extent it was based on the amendment. Among other things, she contends that the amendment concerned child support and was therefore unenforceable for lack of court approval.
It is undisputed that no court approval was sought or obtained with regard to the amendment.
In Texas, the Legislature has explicitly required that parental agreements concerning child support be expressly approved by the court based on whether the agreement is in the child's best interest. Accordingly, agreements by parents to reduce or modify court-ordered child support obligations without such approval violate public policy and are unenforceable.
Williams v. Patton, 821 S.W.2d 141, 143-44 (Tex. 1991) (citing former Family Code Section 14.06, currently Tex. Fam. Code Ann. § 154.124 (Vernon 2002), and explaining at length the policy reasons for requiring courts to expressly determine whether agreements regarding child support are in the child's best interest).
State v. Borchers, 805 S.W.2d 880, 882 (Tex.App.-San Antonio 1991, writ denied); Rogers v. Griffin, 774 S.W.2d 706, 707 (Tex.App.-Texarkana 1989, no writ); Shannon v. Fowler, 693 S.W.2d 54, 57 (Tex.App.-Fort Worth 1985, writ dism'd); Ex parte Payne, 598 S.W.2d 312, 317 (Tex.Civ.App.-Texarkana 1980) (orig. proceeding); Houtchens v. Matthews, 557 S.W.2d 581, 587 (Tex.Civ.App.-Fort Worth 1977, writ dism'd); In re McLemore, 515 S.W.2d 356, 357 (Tex.Civ.App.-Dallas 1974, orig. proceeding).
In this case, the agreement contains the following provisions:
2.02 The purposes of this Agreement are to:
* * * *
(b) Settle the obligations of each party for the support of . . . the children. . . . Specifically, it is the intent and purpose of this Agreement . . . for [Sudan] to fulfill his continuing duty to provide support for the children. . . .
* * * *
3.02 [Sudan] shall make contractual alimony payments to [Mackenzie] under the following conditions:. . . .
(a) Twenty monthly payments of $15,000.00 per month, with the first such payment being due and payable on May 1, 1993, and a like payment being due and payable on the first day of each month thereafter for the next nineteen months [through December of 1994].
(b) Twelve monthly payments of $13,000.00 per month with the first such payment being due and payable on January 1, 1995, and a like payment being due and payable on the first day of each month thereafter for the next eleven months [through December of 1995].
(c) Sixty monthly payments of $12,000.00 per month with the first such payment being due and payable on January 1, 1996, and a like amount being due and payable on the first day of each month thereafter for the next fifty-nine months [through December of 2000].
(k) If, for any reason, alimony payments under paragraphs 3.02(a) and/or 3.02(b) and/or 3.02(c) terminate prior to June 1, 2000, or terminate before either of the children . . . has graduated from high school, then, in addition to any alimony payable under paragraphs 3.02(d) and/or 3.03, [Sudan] shall pay to [MacKenzie] child support in the amount of $6000.00 per month. . . . until both children have reached the age of 18. . . . [or] the end of the school year in which [a] child [enrolled in high school] graduates.
At the time of the amendment in 1998, the children had not reached age 18 or otherwise qualified for the child support obligation to cease.
6.03 It is agreed that child support will be paid by [Sudan] according to the terms of paragraph 3.02(j) of this agreement and as specified in the [decree].
This reference may be a typographical error in that paragraph 3.02(j) of the agreement pertains only to termination of contractual alimony payments if Mackenzie remarried and does not mention child support; whereas paragraph 3.02(k) provides a child support obligation in the event the specified alimony payments terminate.
11.12 This Agreement may be amended or modified only by a written instrument signed by both parties, except those provisions . . . concerning the . . . support . . . of the children, which may be modified only by order of a Court of appropriate jurisdiction.
Thus, with exceptions not applicable here, the agreement provided that: (1) Sudan would pay child support for the children throughout their minority if, for any reason, he ceased to pay contractual alimony; and (2) a court order was required to modify this contingent child support obligation.
The decree expressly incorporated the agreement:
The Court finds that 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. A copy of the agreement is attached to this Decree as Exhibit 1.
Like the agreement, the decree also expressly provided for contingent child support throughout the children's minority, but unlike the agreement, the decree based the contingency on a termination of alimony payments only under subparagraphs 3.02(a) and (b) of the agreement (as contrasted from paragraph 3.02(k) of the agreement, set forth above, which also based the contingency on a termination under subparagraph 3.02(c)):
It is ORDERED AND DECREED that [Sudan] shall pay no direct child support for so long as alimony under paragraphs 3.02(a) or 3.02(b) of the [agreement] . . . previously incorporated into this Decree, is being paid by him. If, for any reason alimony payments under those paragraphs is [sic] terminated before all living children of the parties have reached the age of 18 and have graduated from high school, then it is ORDERED and DECREED that [Sudan] is obligated to pay . . . [to Mackenzie], child support of $6000.00 per month . . . [until the second to occur of a child reaching age 18, marrying, dying, or being emancipated or relieved of legal disability; or] [f]urther order modifying this child support.
The decree also expressly designated as child support Sudan's obligations to pay: health insurance premiums for the children, the children's health care expenses not paid by insurance, and premiums on an insurance policy on Sudan's life for which Mackenzie was the beneficiary. Although the agreement also obligates Sudan to pay these items, it does not designate them as child support.
Based on this discrepancy between the agreement and decree, Sudan argues that: (1) only the contingent child support obligation actually set out in the decree was "court-ordered" (and thus subject to the requirement for court approval for modification); and (2) that child support obligation arose only if contractual alimony under subparagraphs 3.02(a) or (b) was terminated, i.e., before 1996, while those paragraphs were in effect, such as by Mackenzie's remarriage. Therefore, according to Sudan, no court-ordered child support obligation survived to the time of the amendment in 1998 so as to then require any court approval. We disagree with this contention for two reasons.
However, the contingent child support provision in the decree is triggered upon termination for any reason of the alimony payments provided in subparagraphs 3.02(a) and (b) of the agreement. The plain meaning of this provision, consistent with the preceding sentence of the decree, would include a termination of the alimony payments under those subparagraphs upon those payments simply being completed. To whatever extent this could produce an anomaly in which alimony and child support could be payable at the same time, a contrary interpretation would also produce an anomaly in which: (1) differing contingent child support obligations would exist under the agreement and decree; and (2) child support would have been payable under the decree only if alimony payments were terminated before 1996, but not thereafter, even though neither child would have reached the age of majority or satisfied the other conditions for the child support obligation to cease until 1999.
First, the decree expressly made the agreement part of the decree "as if it were recited verbatim." Therefore, the contingent child support provision in the agreement was as much a part of the decree as the provision actually set out therein. It is not apparent how effect can be given to the incorporation of the agreement into the decree if the child support (and other) obligations of the agreement are not construed as thereby being court-ordered.
See Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003) (recognizing that divorce decrees should be construed as a whole to harmonize and give effect to the entire decree and that, if the decree, when read as a whole is unambiguous, the court must effectuate the order in light of the literal language used); Wilde v. Murchie, 949 S.W.2d 331, 333 (Tex. 1997) (same).
Section 3.01 of the agreement acknowledges this by recognizing that the contractual alimony obligation "will become an obligation imposed by order or decree of Court upon approval of this Agreement by the Court."
Second, section 11.12 of the agreement, set forth above, expressly required court approval for any amendment affecting child support ( i.e., even if court approval was not otherwise required by reason of the child support obligation being court-ordered). Therefore, without court approval, the amendment, by its own terms, could not have validly modified the contingent child support obligation in any event.
Having concluded that Sudan's child support obligations required court approval to modify, we next consider the amendment, which contains the following provisions:
WHEREAS the [agreement] specified contractual alimony and other payments by [Sudan], based upon certain assumptions including that both children . . . would reside with [Mackenzie] subsequent to the divorce until each child had obtained the age of majority; and
WHEREAS as a result of circumstances unforeseen at the time the parties entered the [agreement], the children . . . do not reside with [Mackenzie] and the parties desire to modify and amend the [agreement] to take into account these changed circumstances.
A determination of the best interest of the child and court approval is also required for any modification concerning conservatorship and possession of the child. See Tex. Fam. Code Ann. § 153.007(a), (b) (Vernon 2002). In this case, the briefs do not suggest that any such determination or approval was sought or obtained with regard to the change in conservatorship and/or possession reflected in the amendment.
NOW, THEREFORE, [Sudan and Mackenzie] agree as follows:
1. Payment of Lump Sum Amount. [Sudan] agrees to make a final, one-time contractual alimony payment to [Mackenzie] of $30,000 . . . (the "Final Payment"). [Mackenzie] accepts the Final Payment as full and final payment of all amounts payable by [Sudan] under the [agreement] and . . . acknowledges that the Final Payment constitutes full and final satisfaction of all obligations between the parties under the [agreement].
(emphases added). The above portions of the amendment purport to relieve Sudan of all payments and obligations under the agreement. However, to the extent the amendment sought to modify Sudan's contingent child support obligations under the agreement and decree, it could not validly do so without court approval under either the agreement or the law of Texas. Moreover, to the extent the amendment sought to modify Sudan's other obligations under the agreement, as it had been incorporated into the decree, Sudan's motion for summary judgment did not establish how the amendment could have been effective to so modify the decree or agreement without a further order of the court. Because Sudan's motion for summary judgment did not prove that such court approval or order was obtained (or unnecessary) before invoking his rights under the amendment, it failed to establish that the amendment extinguished his obligations under the decree and agreement incorporated into it. Accordingly, we sustain Mackenzie's fourth issue and the applicable portion of her first issue and need not address her remaining challenges to the amendment or its effect on her claims.
See supra note 7.
Sudan contends that Mackenzie is estopped from asserting a lack of court approval by the portion of the amendment, set forth above, in which the parties agreed to execute and file documents and take other action necessary in furtherance of the purposes underlying the amendment. Sudan argues that, because Mackenzie failed to obtain court approval in compliance with this provision, she should not be able to complain of the lack of court approval to defeat the amendment. We disagree with this contention in two respects. First, to the extent the amendment obligated each party to seek court approval, it placed no greater obligation on Mackenzie to do so than Sudan, and especially in that it is Sudan who now wishes to rely on it. Second, and more importantly, the requirement for court approval is a matter of public policy to assure that the best interest of the child is always considered. See Williams, 821 S.W.2d at 143-44. Because a modification of child support without court approval is invalid as against public policy, it cannot be rendered enforceable by estoppel. See In re Kasschau, 11 S.W.3d 305, 314 (Tex.App.-Houston [14th Dist.] 1999, orig. proceeding).
Sudan contends that, even if the amendment required court approval, its enforceability cannot be determined until a court has had an opportunity to rule on whether it was in the best interest of the children and to otherwise approve it. Therefore, Sudan asserts that we should remand the case for such a determination. The dissent similarly argues that the summary judgment in 2000 should be deemed an after-the-fact approval of the 1998 amendment. We disagree. If a requirement to obtain court approval for an amendment (or anything else) is to provide any protection to the parties needing it in a manner to prevent harm, it can do so only if the court has an opportunity to rule before the amendment is put into effect and based on the circumstances existing at that time. Determining that a modification was not in the best interest of the children after its harmful effects have already been suffered would serve no useful purpose and would preclude courts from fulfilling their responsibility to closely supervise child support proceedings to guarantee that the best interest of the child is always considered. See Williams, 821 S.W.2d at 144. Moreover, due to financial pressures frequently encountered by custodial parents following divorce, the refusal of a non-custodial parent to pay amounts due under a decree can put the custodial parent at a considerable disadvantage in deciding between a demand to accept less than is due or receiving nothing while incurring further expense to seek recourse from the courts. Cf. id. (As discussed in the following sections, such circumstances were alleged in this case by Mackenzie.) Relieving non-custodial parents of the requirement to obtain court approval before attempting to reduce their obligations would only increase this inherent potential for abuse. Cf. id.
Sudan's brief concedes that the intent of the amendment was to modify only the agreement, not the decree.
Thus, we do not reach: (1) Mackenzie's challenges to the amendment based on rescission, economic duress, or lack or failure of consideration; or (2) Sudan's modification, release, ratification, compromise and settlement, accord and satisfaction, payment, waiver, estoppel and novation defenses to Mackenzie's contract claims, which are based on the amendment.
Breach of Contract
In addition to seeking summary judgment against Mackenzie's contract claim based on the amendment, Sudan's motion for summary judgment also asserted that there was no evidence that he breached a contract or that Mackenzie incurred damages as a result. Mackenzie's first issue challenges the summary judgment on this ground, among other reasons, based on the evidence in her affidavit attached to her summary judgment response. In stating that Sudan made none of the payments required by the agreement after July of 1998, the affidavit is some evidence of a breach by Sudan and damages being suffered by Mackenzie. Accordingly, we sustain Mackenzie's first issue with regard to her breach of contract claim.
Intentional Infliction of Emotional Distress
Mackenzie's first issue also challenges the summary judgment against her claim for intentional infliction of emotional distress ("intentional infliction"). Among other things, Sudan's motion for summary judgment asserted there was no evidence that his conduct was extreme and outrageous. Mackenzie's brief contends that Sudan's conduct was extreme and outrageous in that he emotionally abused her and attempted to establish control over her through the use of money and threats to interfere with her relationship with their children.
To prevail on her claim for intentional infliction, Mackenzie would have to prove that: (1) Sudan acted intentionally or recklessly; (2) his conduct was extreme and outrageous; (3) his actions caused Mackenzie emotional distress; and (4) her emotional distress was severe. See Tex. Farm Bureau Mut. Ins. Co. v. Sears, 84 S.W.3d 604, 610 (Tex. 2002). To be extreme and outrageous, a defendant's conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Id. Conduct that is merely insensitive or rude is not extreme and outrageous. Id. Likewise, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct. Id.
The court decides whether a defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Id. In deciding whether particular conduct rises to this level, courts consider both the conduct's context and the parties' relationship. Id. at 610-11. Although a defendant's motive or intent is relevant to an intentional infliction of emotional distress claim, it is not enough to support liability. Id. at 612. Rather, the conduct itself must be extreme and outrageous. Id.
In this case, Mackenzie does not cite a case in which the type of conduct she alleges has been found actionable for intentional infliction. Nor does she specify any particular instance in which Sudan's alleged conduct can objectively be characterized as so outrageous in character and extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Under these circumstances, Mackenzie has failed to demonstrate error in granting summary judgment against her intentional infliction claim, and her first issue is overruled with regard to it.
TortiousInterference
Mackenzie's first issue also challenges the summary judgment against her claim for tortious interference with business relations. Among other grounds pertaining to this claim, Sudan's motion for summary judgment asserted that there was no evidence that he directed any conduct to any third party with whom Mackenzie had a business relationship. Neither Mackenzie's summary judgment response nor her appellate brief sought to challenge this contention legally or factually. Where, as here, summary judgment against a claim is sought on multiple alternative grounds, an appellant's failure to challenge each ground asserted allows the summary judgment to be affirmed on the unchallenged ground(s). Because Mackenzie has not challenged Sudan's summary judgment ground asserting no evidence of interference with any party with whom Mackenzie had a business relationship, she has not demonstrated error in granting summary judgment against her tortious interference claim.
Mackenzie claims that, in 1998, Sudan interfered with her business relationships with her bank, mortgage company, insurance company, and employer by: (1) informing her of his intent to stop making payments under the agreement, which were necessary for her to maintain those relationships; (2) verbally abusing her; and (3) thereby coercing her to enter into the amendment. Mackenzie alleges that she acceded to Sudan's demand to enter into the amendment because she was emotionally distraught, believed she could not fight Sudan due to his position and influence, and needed the lump sum payment he offered in order to "buy" time to sell her assets and adjust her lifestyle.
See, e.g., Holloway v. Skinner, 898 S.W.2d 793, 794-95 (Tex. 1995) (recognizing tortious interference as a claim by a party to a contract against a third person for wrongly inducing another contracting party to breach the contract).
See Guzman v. Carnevale, 964 S.W.2d 311, 313 (Tex.App. Corpus Christi 1998, no pet.); Beavers v. Goose Creek Consol. Indep. Sch. Dist., 884 S.W.2d 932, 934 (Tex.App.-Waco 1994, writ denied); Langston v. Eagle Publ'g Co., 719 S.W.2d 612, 615 (Tex.App.-Waco 1986, writ ref'd n.r.e.).
Fraudulent Inducement
Sudan moved for summary judgment against Mackenzie's claim for fraudulent inducement of the agreement, asserting, among other things, that there was no evidence that Sudan made any actionable misrepresentation. Mackenzie challenges the summary judgment against this claim on the ground that the following are evidence that Sudan entered into the agreement with no intention of performing it: (1) at the time the agreement was negotiated (leading up to the divorce), Sudan refused to disclose, or allow Mackenzie to share in, the value of his law practice or his retirement account; (2) in the divorce, Sudan would not let Mackenzie keep her dream house and forced her to find another place for her and their children to live; and (3) a few months after his re-marriage, Sudan decided the agreement was no longer fair and unilaterally breached it.
A promise of future performance constitutes an actionable misrepresentation if, at the time it was made, the promisor had no intention of performing it. See Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). However, the mere failure to perform a contract is not evidence of fraud. Id. Rather, there must be evidence relevant to the promisor's intent at the time the promise was made. See id.
In this case, of the three items of evidence, enumerated above, upon which Mackenzie relies to show fraudulent inducement, the first two may arguably support an inference of bitterness or belligerence but are not probative of Sudan's intent with regard to performing the agreement. Similarly, the third item is evidence of only the subsequent breach and not Sudan's intent at the time of entering into the agreement. In that Mackenzie has not cited evidence of Sudan's intent at that time not to perform the agreement, she has not demonstrated that summary judgment was entered against her fraudulent inducement claim in error, and her first issue is overruled.
Accordingly, we: (1) affirm the judgment as to all claims other than Mackenzie's claim for breach of the agreement; and (2) reverse the summary judgment against that claim and remand the case to the trial court for further proceedings with regard to it.
ON MOTION FOR REHEARING
I respectfully dissent to that portion of the majority opinion modifying the trial court's judgment and concluding that the parties' amendment to the property settlement agreement is unenforceable. The subject "Agreement Effecting A Second Amendment To Property Settlement Agreement Incident To Divorce" was executed by the parties on July 28, 1998. The hearing on Phil Sudan's (Sudan) motion for summary judgment was held on April 19, 2000. On May 19, 2000, the trial court granted Sudan's motion. Following a second hearing on June 6, 2000, the order which is the subject of this appeal was signed on May 30, 2001. At that time, both children were over eighteen years old and neither had lived with Maggie Mackenzie (Mackenzie) for three to four years. The majority wholly ignores the undisputed fact that Sudan had been the de facto custodial parent and sole source of financial support for both children long before the amendment was executed. Obviously, the trial court was fully aware of this when it granted Sudan's motion for summary judgment and reserved the child support arrearage issue for further proceedings. Both parties filed pleadings and addressed the child support issue in summary judgment motions. In proceedings prior to consideration of motions for summary judgment, the trial court was obviously inclined to approve modification of child support. Moreover, the trial court implicitly approved modification of child support when it ruled that the amendment is enforceable. When a motion for summary judgment is based on different grounds and the order granting the motion is silent as to the reason for granting the motion, it must be affirmed if any of the movant's theories are meritorious. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2001).
On August 1, 1999 the presiding judge adopted associate Judge Michael Hay's denial of Mackenzie's motion for contempt in connection Sudan's failure to pay the life insurance premium. Under the agreement, Sudan was obligated to pay the premium in order to insure payment of his child support obligations in the event of his death. Associate Judge Hay wrote: "The children lived with Sudan since 1994. Voluntary relinquishment is a defense. TFC 157.008. The parties settled obligations between the parties July 28, 1998."
Alternatively, disposition of this issue turns on whether the amendment covered court ordered child support. I do not agree with my colleagues' conclusion that the amendment covers Sudan's child support obligation under the decree. My colleagues recite but seem to disregard the following plain language in the amendment:
Maggie accepts the Final Payment as full and final payment of all amounts payable by Phil under the Settlement Agreement and Maggie further agrees and acknowledges that the Final Payment constitutes full and final satisfaction of all obligations between the parties under the Settlement Agreement.
The majority opines that the provision in the agreement for payment of child support contingent on non-payment of alimony is court ordered child support. They base this conclusion on the fact the agreement includes a term requiring court approval for any amendment affecting child support and the decree expressly made the agreement part of the decree "as if it were recited verbatim." Notwithstanding the plain language in the amendment, my colleagues conclude that it pertains to payments and obligations under the decree. There is no language in the agreement or the decree expressing that the obligation to pay contractual alimony mutates into court ordered child support simply because the court incorporated the agreement verbatim into the decree. Moreover, Mackenzie may not recharacterize contractual alimony payments as child support. See Birdwell v. Birdwell, 819 S.W.2d 223, 228-29 (Tex.App.-Fort Worth 1991, writ denied). My colleagues cite Wilde v. Murchie, 949 S.W.2d 331, 333 (Tex. 1997) in support of the proposition that courts should construe divorce decrees in an effort to "harmonize" and give effect to all that is written. The court in Wilde construed the terms of a divorce decree; it was not dealing with an agreement incident to divorce which had been incorporated into a divorce decree. In order to avoid confusion when the parties to a divorce enter into an agreement incident to divorce, I would follow the more practical and well reasoned approach taken by the court in Pampell v. Pampell, 2001 WL 223288, at *1 (Tex.App.-Austin 2001, no pet.) (not designated for publication). When divorcing spouses enter into a child support agreement that is incorporated into a divorce decree, the parties' obligations are then governed by two distinct instruments, the contract and the decree. Moreover, when the duty to make support payments arises from an agreement between the parties, rather than from a divorce decree, the rights and obligations of the parties are governed by the rules of contract. See Hutchings v. Bates, 406 S.W.2d 419, 421 (Tex. 1966); Griffin v. Griffin, 535 S.W.2d 42 (Tex.Civ.App.-Austin 1976, no writ).
Relying on the court's rationale in Williams v. Patton, 821 S.W.2d 141 (Tex. 1991), the majority concludes that lack of court approval renders the amendment unenforceable. The facts in Williams are distinguishable. In Williams, one of the parties sought to enforce an agreement settling an arrearage claim. The trial court (not a court of appeals) declared the agreement void. The Supreme Court agreed with the 1st Court of Appeals' conclusion that "child support arrearages also remain under the supervision of the trial court and may not be modified by the parties without court approval until the court either (1) reduces the unpaid child support to written judgment or (2) loses jurisdiction." Sudan correctly asserts that the Williams case applies only to court-ordered child support, not contractual alimony payments with child support payments contingent on non-payment of the alimony.
For the sake of brevity and judicial economy, I shall not address Mackenzie's challenges to the amendment and Sudan's numerous defensive theories. In conclusion, I join the majority in affirming the judgment as to all claims other than Mackenzie's claim for breach of the agreement. However, for the reasons stated above, I would not reverse the trial court's summary judgment that the amendment is valid and enforceable.