Richard Abrams v. Marguerite Salinas A/K/A Marguerit Y. Salinas F/K/A Marguerite Abrams and Ashely Abrams A/K/A Ashley N. Abrams , 2015 Tex. App. LEXIS 4575 ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-14-00104-CV
Richard ABRAMS,
Appellant
v.
Marguerite Salinas a/k/a Marguerite Y. Salinas f/k/a Marguerite ABRAMS
and Ashely Abrams a/k/a Ashley N. Abrams,
Appellees
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 1987-CI-16750
Honorable Janet P. Littlejohn, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: May 6, 2015
AFFIRMED
This appeal arises from an alleged breach of a provision in an agreed decree of divorce
obligating the parties to share equally in the cost of their daughter’s college expenses. Appellant
Richard Abrams argues the trial court erred in ruling that (1) the four-year statute of limitations
did not apply and (2) he breached his contractual obligation to pay his portion of his daughter’s
college expenses. Because the ten-year statute of limitations for judgments applies and the
conditions precedent to the payment of college expenses were not specifically denied by Richard,
we affirm the trial court’s judgment.
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BACKGROUND
Richard and Marguerite were divorced in 1988. They had one daughter, Ashley, born in
1984. Their divorce decree required Richard and Marguerite to each pay one-half of Ashley’s
reasonable college expenses:
Further, the parties would show the Court that they agree to, and the Court so
ORDERS and DECREES that each of the parties will be responsible for and will
pay 50% of any and all reasonable education expenses incurred to send ASHLEY
ABRAMS to college, provided the child is a full-time student (carrying 12 hours
or more) and maintains at least a “C” or equivalent grade-point average toward the
completion of a college bachelor’s degree. This obligation will include tuition,
activities fees, laboratory fees, books, room and board, and other charges normally
related to such education. The provisions of this agreement may be enforced by
the parties or the child. Further, as conditions for payment under this article: (a)
the grades of the child will be reported to the parties within ten days after receipt of
same, and parties will receive a photocopy of any report card issued by the school;
(b) parties will have the right at any time to contact the school to obtain current
information on the grades and status of the child; (c) the child will authorize the
school to release that information to parties; (d) this agreement is only valid up until
the time the child reaches 30 years of age, thereafter, the child will be responsible
for her school expenses in obtaining her bach[e]lor’s degree.
After the divorce, Richard stopped seeing Ashley when she was five or six. Ashley recalled
seeing her father once more, when she was twelve-years old. On that occasion, Richard told
Ashley that she was dead to him. When Ashley was about sixteen, Richard was held in contempt
by the trial court for not providing his contact information to the Texas Attorney General for
purposes of child-support payments. Richard provided his contact information, including his
mailing address, to the Attorney General. The Attorney General’s office refused to disclose it to
Ashley’s mother on the grounds it was protected under the Servicemembers Civil Relief Act.
In 2004, after being home-schooled and obtaining a General Equivalency Diploma (a
GED), Ashley enrolled in the University of the Incarnate Word College as a full-time student. In
2006, Richard moved from the address he previously provided pursuant to the court order.
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In August of 2008, Ashley graduated from Incarnate Word and began making plans to
move to Washington, D.C. to pursue a master’s degree. When gathering documents necessary to
enroll in the master’s program, Ashley first learned of the existence of the college provision in her
parents’ agreed divorce decree. Within ten days of learning about Richard’s obligation to pay one-
half of her college expenses, she sent him a certified letter to his last known address asking him to
reimburse half of her college expenses. Ashley explained in her letter that had she known the
contents of the divorce decree, she would have sent all the required information sooner. Ashley
included with her letter a copy of the divorce decree, an itemization of all college expenses minus
grants and scholarships she received, and proof she maintained a C average.
Richard acknowledged receiving Ashley’s letter. He testified he responded to Ashley’s
request by stating she was not in compliance with the divorce decree. He testified that once he
found out Ashley had graduated from Incarnate Word, he contacted the college to request
information on her. He asserted the university refused to provide the information without a release
from Ashley. Richard did not follow up with Ashley to request from her the information he sought
from the university, and Ashley had no knowledge of Richard’s request.
Ashley, who denied receiving Richard’s response to her first letter, sent Richard a second
certified letter with the same enclosures. Although she received proof of receipt, Richard did not
respond to the second request. In December of 2008, she sent a third certified letter with the same
enclosures. This time, the letter was not deliverable.
In January of 2013, Ashley and her mother filed a petition to enforce Richard’s contractual
obligations under the agreed judgment. Richard first filed a general denial, and later amended his
answer only adding a statute of limitations defense. After a bench trial, Marguerite and Ashley
were awarded one-half of the college expenses incurred by Ashley. Richard filed a motion for
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new trial alleging, among other things, the award was subject to the statute of limitations. The
motion was denied and this appeal followed.
STATUTE OF LIMITATIONS
Because the parties disagree about which statute of limitations applies, we first address
whether Marguerite’s and Ashley’s claims are subject to a four-year or a ten-year limitations
statute.
A. Standard of Review
Whether a cause of action is barred by limitations is a question of law that appellate courts
review de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003);
accord Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex. 2011).
B. Arguments of the Parties
1. Richard
Richard argues the four-year statute of limitations bars any claim for college expenses
because the claims arise from a divorce decree. The four-year statute applies to a breach of an
agreement contained in an agreed divorce decree. Richard’s obligation was contractual, and it
accrued when he allegedly failed to pay the college expenses. Because Richard’s obligation, if
any, to pay his share of the college expenses accrued when Ashley graduated in August of 2008,
the lawsuit filed against him on January 18, 2013 was not timely. Therefore, Marguerite’s and
Ashley’s claims for college expenses are barred by the four-year statute of limitations.
2. Marguerite and Ashley
Marguerite and Ashley contend Richard failed to conclusively establish the agreement in
the final decree of divorce was contractual and subject to the four-year statute of limitations. The
appellees argue the terms of the divorce decree at issue make it clear that the decree is a consent
judgment and not a contract. Marguerite and Ashley further contend the enforcement of Richard’s
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obligation to pay college expenses is thus subject to the ten-year dormancy statute for judgments
by virtue of being contained in the agreed divorce decree.
We review the applicable law.
C. Applicable Statute of Limitations
1. Divorce Decrees Interpreted by Contract Law
Divorcing couples “may enter into a written agreement concerning . . . the liabilities of the
spouses.” TEX. FAM. CODE ANN. §§ 7.006(a) (West 2006). Divorce agreements “are considered
contracts and their legal force and meaning are governed by contract law.” Soto v. Soto, 936
S.W.2d 338, 341 (Tex. App.—El Paso 1996, no writ) (op. on reh’g) (citing Allen v. Allen, 717
S.W.2d 311, 313 (Tex. 1986)); accord Beshears v. Beshears, 423 S.W.3d 493, 500 (Tex. App.—
Dallas 2014, no pet.). Generally, the four-year statute of limitations applies to any action for
breach of a written divorce agreement. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.004(a)(3)
(West 2002) (debt), 16.051 (West 2014) (residual limitations period); Stine v. Stewart, 80 S.W.3d
586, 592 (Tex. 2002).
2. Divorce Agreement Incorporated into Judgment
When, however, a court approves an agreement made by the divorcing parties, “the court
may set forth the agreement in full or incorporate the agreement by reference in the final decree.”
TEX. FAM. CODE ANN. § 7.006(b). “Once the agreement of the parties has been approved by the
court and made a part of its judgment, the agreement is no longer merely a contract between private
individuals but is the judgment of the court.” Ex parte Gorena, 595 S.W.2d 841, 844 (Tex. 1979)
(orig. proceeding) (emphasis added); accord Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex.
App.—Dallas 2008, no pet.); Pettitt v. Pettitt, 704 S.W.2d 921, 923 (Tex. App.—Houston [14th
Dist.] 1986, writ ref’d n.r.e.). “When so . . . incorporated, the divorce decree becomes a consent
judgment, subject to the same degree of finality and binding force as a judgment rendered in an
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adversary proceeding.” Soto, 936 S.W.2d at 341 (citing McCray v. McCray, 584 S.W.2d 279, 281
(Tex. 1979) (per curiam) (“Although rules relating to contract interpretation apply, an agreed
judgment is accorded the same degree of finality and binding force as a final judgment rendered
at the conclusion of an adversary proceeding.”)).
3. Enforcing Decree as Judgment
A divorce decree is a final judgment “distinguishable from other final judgments only by
the remedies available for their enforcement.” O’Carolan v. Hopper, 414 S.W.3d 288, 301 (Tex.
App.—Austin 2013) (citing Huff v. Huff, 648 S.W.2d 286, 287 (Tex. 1983)). In the context of a
divorce, for example, if one of the parties fails to perform in accordance with the divorce decree,
the other party has the option of filing a motion to reduce any arrearage to an enforceable judgment
or file a motion for contempt designed to assure satisfaction of payment ordered in the divorce
decree. O’Carolan, 414 S.W.3d at 300–01.
4. Statute of Limitations
A party seeking to enforce a divorce decree is subject to certain time limitations. When
the terms of the agreed divorce have been incorporated into the judgment, “an action for
enforcement of [the] judgment may be brought within ten years from the date of judgment.” Pettitt,
704 S.W.2d at 923 (citing the statutory predecessor of the dormant judgment rule, TEX. CIV. PRAC.
& REM. CODE ANN. § 34.001 (West 2015)); accord O’Carolan, 414 S.W.3d at 303; see also Huff,
648 S.W.2d at 289–90 (applying the ten-year statute to child support enforcement, but Huff later
superseded in part by statute, Act of May 21, 2009, 81st Leg., R.S., ch. 767, § 31, 2009 Tex. Gen.
Laws 1938, 1948, excluding “a judgment for child support under the Family Code”).
However, where a judgment has incorporated an agreed divorce decree and the judgment
orders payments predicated on future conditions, we agree with the reasoning of our sister courts
in O’Carolan and Marriage of Ward as guided by Huff. See O’Carolan, 414 S.W.3d at 303–04
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(citing In re Marriage of Ward, 806 S.W.2d 276, 277 (Tex. App.—Amarillo 1991, writ denied))
(analyzing Huff and Marriage of Ward and concluding Huff’s reasoning applied to a motion to
enforce spousal maintenance).
We hold that for an action to enforce a payment ordered by the judgment but predicated on
future conditions, the dormant judgment statute does not begin to run on the date the judgment
becomes final; rather, it begins to run when the payment becomes due. See O’Carolan, 414
S.W.3d at 303–04; Marriage of Ward, 806 S.W.2d at 277 (citing Gonzales v. Gonzales, 728
S.W.2d 446, 448 (Tex. App.—San Antonio 1987, no writ)); see also Shannon v. Fowler, 693
S.W.2d 54, 56 (Tex. App.—Fort Worth 1985, writ dism’d) (applying same reasoning).
D. Analysis
Having determined the applicable statute of limitations and the date on which it begins to
run, we turn to Richard’s argument.
Richard cites Carlson v. Carlson, 983 S.W.2d 304 (Tex. App.—Houston [1st Dist.] 1998,
no writ) and Stine v. Stewart, 80 S.W.3d 586 (Tex. 2002) (per curiam) for the proposition that the
four-year statute applies to agreements contained in divorce decrees. Both cases are
distinguishable.
1. Carlson v. Carlson
In Carlson, 983 S.W.2d at 305, the appellant sought reimbursement from her ex-husband
for one-half of the college expenses incurred by the couple’s two children. At issue on appeal was
the reimbursement of expenses incurred by one child who attended school from July 1988 through
May 1993. Id. at 307. The appellant filed suit in July 1994, and the trial court found that
appellant’s right to seek reimbursement for one-half of that child’s educational expenses incurred
between July 1988 and June 30, 1990, was barred by the limitations for contracts. Id. The trial
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court then awarded the appellant one-half of the educational expenses incurred after July 1, 1990.
Id.
On appeal, the appellant acknowledged she was seeking to enforce contractual rights. Id.;
see also Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996) (holding parties may, by language
incorporated into the judgment, choose to enforce a judgment as a contract). Accordingly, the trial
court applied the four-year period of limitations for contracts. Importantly, Carlson addressed the
enforcement of an agreement to pay for educational expenses and not the enforcement of a
judgment. Carlson, 983 S.W.2d at 307.
2. Stine v. Stewart
Similarly, Stine dealt with a third-party beneficiary affected by an agreement incident to
divorce that disposed of the marital property and not with a former spouse or child seeking to
enforce a provision of a final decree of divorce. Stine, 80 S.W.3d at 588–89. The agreement
provided that if the couple’s home was sold, any monies owing under a note payable to his wife’s
mother, Stine, would be apportioned between the parties. Id. at 588. The home was sold, and
Stine was not paid. Id. Within two years after the house sold, Stine sued. Id. at 588–89. The
issue before the Texas Supreme Court was whether the two-year limitations period under Texas
Family Code section 9.003(b) or the four-year contract limitations period under Texas Civil
Practice and Remedies Code section 16.051 applied. Id. at 589–90.
The court recognized that payment of the note was tied to the sale of the marital property.
Id. at 590. However, the nature of Stine’s claim was for breach of payment and not for the division
of marital property. Id. at 592. The court held that the four-year limitations period applied to an
agreement incident to a divorce decree rather than the two-year statute of limitations relating to
the division of property. Id. (applying four-year statute to suit brought by third-party beneficiary
to agreement incident to divorce that disposed of marital property).
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Because we are dealing with an agreement to pay college expenses that is part of a decree
of divorce, we conclude Stine is inapplicable to the issue at hand.
3. Present Case
The agreement at issue in this case is an agreed divorce decree to pay college expenses of
the divorcing parties’ child. As we have previously determined, the laws for enforcing judgments
apply. O’Carolan, 414 S.W.3d at 302–03. Additionally, we need not decide whether college
expenses fall under the child-support category, thus triggering Family Code section 157.005,
because the filing of the petition to enforce filed by Marguerite and Ashley was timely even under
Huff. See Huff, 648 S.W.2d at 289; see also TEX. FAM. CODE ANN. § 157.005 (West 2014) (“Time
Limitations; Enforcement of Child Support”).
The divorce decree at issue does not specify when Richard was required to make payments
for Ashley’s college expenses. It is silent as to whether payments were to be on a per semester
basis, an annual basis, or as a lump sum payment. The only reference to a time line is the mandate
that Ashley complete the college education paid by her parents before she reaches thirty years of
age. Ashley’s thirtieth birthday was on April 20, 2014. Ashley went to college from the fall of
2004 to August of 2008. We note the motion to enforce the agreement was filed on January 18,
2013,
• less than ten years from the date she first attended college, and
• before Ashley’s thirtieth birthday.
Even if we assume Richard was obligated to make payments at the end of each semester—
the earliest reasonable payment date given Ashley’s requirement to be a full-time student and
maintain a C average—limitations would begin to run for the first payment at the end of the fall
semester of 2004. Because the motion to enforce was filed on January 18, 2013, and the earliest
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date triggering the limitations was in December 2004, the claims are not barred by the ten-year
dormancy statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 34.001.
Furthermore, given the divorce decree did not contain a due date for the payment of
Ashley’s college expenses, and given that the divorce decree required Richard to pay for one-half
of the college expenses until April 20, 2014, Ashley’s thirtieth birthday, the ten-year dormancy
statute would not bar Ashley’s claim. In fact, the trial record indicates the following finding by
the trial court: “The Court further finds that the statute of limitations as it relates to Ms. Abrams is
not applicable because pursuant to page six, sub paragraph D, the agreement is valid until the child
reaches the age of 30. As she has not reached the age of 30, so she is awarded a judgment . . . .”
Without deciding the accrual date under the divorce decree in question, we conclude that
under either scenario the ten-year limitations period did not bar the suit against Richard to enforce
his obligation to pay one-half of Ashley’s college expenses. Accordingly, we agree with the trial
court’s conclusion that the ten-year statute of limitations does not bar the claims made by
Marguerite and Ashley against Richard for the enforcement of his obligation to pay one-half of
Ashley’s college expenses.
We conclude the ten-year dormancy period applies to Richard’s obligation under the
divorce decree to pay one-half of Ashley’s college expenses. We further conclude the appellees’
motion to enforce was timely filed and the ten-year dormancy statute did not bar their claim against
Richard for one-half of Ashley’s college expenses.
Next, we address the issue of conditions precedent to Richard’s obligation to pay one-half
of Ashley’s college expenses.
CONDITIONS PRECEDENT
“Conditions precedent are acts or events that occur subsequent to the formation of a
contract and that must occur before there is a right to immediate performance and before there can
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be a breach of contractual duty.” McMahan v. Greenwood, 108 S.W.3d 467, 484 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied) (citing Marsh v. Marsh, 949 S.W.2d 734, 743–44 (Tex.
App.—Houston [14th Dist.] 1997, no writ)). A party seeking to recover under a contract bears the
burden of proving that all conditions precedent have been satisfied. See Associated Indem. Corp.
v. CAT Contracting, Inc., 964 S.W.2d 276, 283 (Tex. 1998).
Richard contends Marguerite and Ashley failed to satisfy the following three conditions
precedent contained within the divorce decree:
(a) the grades of the child will be reported to the parties within ten days after
receipt of same, and parties will receive a photocopy of any report card issued
by the school;
(b) parties will have the right at any time to contact the school to obtain current
information on the grades and status of the child; [and]
(c) the child will authorize the school to release that information to parties.
A. Standard of Review
When a party challenges the legal sufficiency of the evidence to support an adverse finding
on which the party did not have the burden of proof at trial, the party must demonstrate there is no
evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.
1983); Thornton v. Dobbs, 355 S.W.3d 312, 316 (Tex. App.—Dallas 2011, no pet.). “If more than
a scintilla of evidence exists to support the finding, the legal sufficiency challenge fails.”
Thornton, 355 S.W.3d at 316. A legal sufficiency challenge may be sustained only if
(a) [there is] a complete absence of evidence of a vital fact;
(b) the court is barred by rules of law or evidence from giving weight to the only
evidence offered to prove a vital fact;
(c) the evidence offered to prove a vital fact is no more than a mere scintilla; [or]
(d) the evidence establishes conclusively the opposite of the vital fact.
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City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (quoting Robert W. Calvert, “No
Evidence” & “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362–63 (1960));
Heinert v. Wichita Falls Hous. Auth., 441 S.W.3d 810, 820 (Tex. App.—Amarillo 2014, no pet.).
When reviewing the factual sufficiency of the evidence, “‘we consider and weigh all of the
evidence and will set aside the verdict only if it is so against the great weight and preponderance
of the evidence that it is clearly wrong and unjust.’” City of Keller, 168 S.W.3d at 826; accord
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
B. Arguments of the Parties
Richard contends the undisputed evidence established the above conditions precedent were
not satisfied. Accordingly, Richard argues he is excused from any obligation to pay one-half of
Ashley’s college expenses.
Marguerite and Ashley contend Richard waived the right to enforce the conditions
precedent to his obligation to pay his share of Ashley’s college expenses. Specifically, the
appellees argue Richard’s prolonged absence and unresponsiveness to Ashley are evidence
Richard affirmatively and consciously relinquished his right to complain about Ashley’s failure to
fulfill the conditions precedent in the divorce decree.
C. Waiver
Consent and agreed judgments look for their interpretation to the law of contracts. Gulf
Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex. 2000); see also Hydroscience Techs.,
Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 798 (Tex. App.—Dallas 2013, pet. denied) (“An
agreed judgment must be interpreted as if it were a contract between the parties, and the
interpretation of the judgment is governed by the laws relating to contracts.” (emphasis added));
Chapman v. Abbot, 251 S.W.3d 612, 616 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (agreed
judgments subject to “‘the usual rules of contract interpretation’” (quoting Broesche v. Jacobson,
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218 S.W.3d 267, 271 (Tex. App.—Houston [14th Dist.] 2007, pet. denied))). The interpretation
of an unambiguous consent judgment, like the interpretation of an unambiguous contract, is a
matter of law for the court. See Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.
1996); Chapman, 251 S.W.3d at 616; see also Coker v. Coker, 650 S.W.2d 391, 393–94 (Tex.
1983).
In a contract with a condition precedent, performance of that condition precedent is an
essential element of a plaintiff’s breach of contract case. Lidawi v. Progressive Cnty. Mut. Ins.
Co., 112 S.W.3d 725, 734 (Tex. App.—Houston [14th Dist.] 2003, no pet.). “‘A condition
precedent is an event that must happen or be performed before a right can accrue to enforce an
obligation.’” Solar Applications Eng’g, Inc. v. T.A. Operating Corp., 327 S.W.3d 104, 108 (Tex.
2010) (quoting Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992)) (citing RESTATEMENT
(SECOND) OF CONTRACTS § 224 (1981) (“A condition is an event, not certain to occur, which must
occur, unless its non-occurrence is excused, before performance under a contract becomes due.”)).
“When a promise is subject to a condition precedent, there is no liability or obligation on
the promissor and there can be no breach of the contract by him until and unless such condition or
contingency is performed or occurs.” Roberts v. Clark, 188 S.W.3d 204, 212 (Tex. App.—Tyler
2002, pet. denied) (citing Toland v. Kaliff, 435 S.W.2d 260, 262 (Tex. Civ. App.—San Antonio
1968, no writ)). The burden of both pleading and proof of performance of a condition precedent
to recovery is governed by Rule 54 of the Texas Rules of Civil Procedure:
In pleading the performance or occurrence of conditions precedent, it shall be
sufficient to aver generally that all conditions precedent have been performed or
have occurred. When such performances or occurrences have been so plead, the
party so pleading same shall be required to prove only such of them as are
specifically denied by the opposite party.
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TEX. R. CIV. P. 54; see also Lidawi, 112 S.W.3d at 729 n.1 (citing Trevino v. Allstate Ins. Co., 651
S.W.2d 8, 11 (Tex. App.—Dallas 1983, writ ref’d n.r.e.)) (burden of both pleading and proof of
performance of all conditions precedent to recovery is with the plaintiff).
When a defendant fails to specifically deny any performance or occurrence of conditions
precedent, “[R]ule 54 does not cumber [a plaintiff] with proving[] the performance or occurrence
of any condition precedent to its recovery.’” MacDonald v. Bank of Kerrville, 849 S.W.2d 371,
372 (Tex. App.—San Antonio 1993, writ dism’d) (quoting Hill v. Thompson & Knight, 756
S.W.2d 824, 826 (Tex. App.—Dallas 1988, no writ)); see also Sharifi v. Steen Auto., LLC, 370
S.W.3d 126, 147 (Tex. App.—Dallas 2012, no pet.); Rockwall Commons Assocs., Ltd. v. MRC
Mortg. Grantor Trust I, 331 S.W.3d 500, 508 (Tex. App.—El Paso 2010, no pet.) (“Where a
defendant does not specifically deny a plaintiff’s performance-of-conditions-precedent pleading,
a plaintiff is not encumbered with proof of such performance.”).
D. Analysis
In this case, Marguerite and Ashley plead that all conditions precedent were met.
Specifically, they alleged the following:
Petitioners assert that all such enumerated conditions were met, in fact, all
conditions precedent to this suit were and have been met, and there is no[] valid
reason for RICHARD to have failed and refused to have performed under the
provision quoted from the parties’ Final Decree of Divorce . . . . Petitioners assert
that RICHARD has breached his contractual agreements regarding the payment of
ASHLEY’s tuition.
Richard’s answer did not specifically deny any of the conditions precedent in the divorce decree.
In his Original Answer, Richard pled a general denial; in his First Amended Answer, he asserted
a general denial and a statute of limitations defense. The record does not contain any pleadings
whereby Richard specifically denied that “all conditions precedent to this suit were and have been
met.” Absent a specific denial of each condition precedent, Richard is not entitled to complain
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about the alleged non-performance of the conditions precedent. See Sharifi, 370 S.W.3d at 147;
Rockwall Commons, 331 S.W.3d at 508; MacDonald, 849 S.W.2d at 372. Richard is, therefore,
obligated to pay one-half of Ashley’s college expenses irrespective of those conditions.
Because Marguerite and Ashley asserted in their pleading that all conditions precedent
were satisfied, Richard was required to specifically deny each condition precedent. Richard failed
to do so. Therefore, Richard waived his complaint about Ashley allegedly failing to satisfy the
conditions precedent. 1 See Sharifi, 370 S.W.3d at 147; Rockwall Commons, 331 S.W.3d at 508;
MacDonald, 849 S.W.2d at 372. We overrule Richard’s second issue.
CONCLUSION
Marguerite’s and Ashley’s Petition to Enforce for Breach of the Agreed Divorce Judgment
in this case was subject to the laws for enforcing judgments, and because the statute of limitations
does not begin to run until the payment is due, it was filed within the ten-year period for the
dormant judgment statute. Because Richard failed to specifically deny the appellees’ allegation
that all conditions precedent were satisfied, he waived his right to complain about the proof of
those conditions. We affirm the trial court’s judgment.
Patricia O. Alvarez, Justice
1
Because Richard waived his right to complain about whether Ashley proved she met the conditions precedent, we
need not address whether Richard waived Ashley’s performance of any of those conditions. See TEX. R. APP. P. 47.1
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