Miguel Angel Pappolla v. Marcia Juliet Simovich ( 2013 )

Reversed and Rendered and Memorandum Opinion filed May 21, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00418-CV
MIGUEL ANGEL PAPPOLLA, Appellant
V.
MARCIA JULIETA SIMOVICH, Appellee
On Appeal from the 308th District Court
Harris County, Texas
Trial Court Cause No. 2011-14930
MEMORANDUM OPINION
Appellant Miguel Angel Pappolla agreed to pay contractual alimony to
appellee Marcia Julieta Simovich as part of a divorce settlement. When Pappolla
failed to make payments required under the agreement, Simovich filed a petition
seeking acceleration and payment of the remaining obligation. The trial court
granted Simovich’s petition and signed a wage withholding order. In two issues,
Pappolla contends that the trial court erred by ordering wage withholding for
contractual alimony. We reverse the trial court’s order and render judgment
vacating the wage withholding.
BACKGROUND
Pappolla and Simovich entered into a divorce settlement agreement. The
trial court approved it and included its provisions in the final divorce decree. The
agreement contained a provision titled “Contractual Alimony” that provided:
Amount—[Pappolla] will pay to [Simovich] six thousand dollars
($6,000.00) per month as contractual alimony under the IRS Tax
Code. These Payments will be payable the 1st day of each month,
beginning on July 1, 2010.
Pappolla missed several payments under this provision, and Simovich filed a
petition seeking the acceleration and payment of Pappolla’s remaining alimony
obligation of $180,000. The trial court granted Simovich’s petition and signed a
wage withholding order on January 13, 2012. Pappolla disputed the wage
withholding order, and after a hearing, the trial court confirmed the order on
February 8, 2012. Pappolla timely appealed.
Pappolla contends on appeal that the trial court erred by signing the January
13 wage withholding order because (1) the contractual alimony to which he agreed
is not subject to wage withholding under Texas Family Code, section 8.101; and
(2) section 8.101(b) violates article XVI, section 28, of the Texas Constitution.
Simovich contends that (1) chapter 8 of the Family Code applies because
Pappolla’s contractual alimony payments were delinquent, and (2) Pappolla has
failed to preserve his constitutional argument.
ANALYSIS
Determining whether a trial court may order wage withholding for alimony
payments is a question of law we review de novo. Heller v. Heller, 359 S.W.3d
2
902, 903 (Tex. App.—Beaumont 2012, no pet.); Kee v. Kee, 307 S.W.3d 812, 813
(Tex. App.—Dallas 2010, pet. denied). Resolution of this question turns on
section 8.101 of the Texas Family Code.
The Texas Family Code allows courts to withhold income to enforce certain
obligations:
(a) in a proceeding in which periodic payments of spousal
maintenance are ordered, modified, or enforced, the court may
order that income be withheld from the disposable earnings of
the obligor as provided by this chapter.
(b) This subchapter does not apply to contractual alimony or
spousal maintenance, regardless of whether the alimony or
maintenance is taxable, unless:
(1) the contract specifically permits income withholding; or
(2) the alimony or maintenance payments are not timely
made under the terms of the contract.
Tex. Fam. Code Ann. § 8.101 (Vernon 2006).
As a threshold matter, we note that existing case law uniformly rejects the
use of income withholding to enforce contractual alimony. See Heller, 359 S.W.3d
at 904; Kee, 307 S.W.3d at 816; McCollough v. McCollough, 212 S.W.3d 638, 645
(Tex. App.—Austin 2006, no pet.). In each case, the obligee argued that a
contractual alimony obligation amounted to spousal maintenance for purposes of
Chapter 8. See Heller, 359 S.W.3d at 904; McCollough, 212 S.W.3d at 641; see
also Kee, 307 S.W.3d at 813 (“Wife contends that Husband had a legal duty to
support her in addition to his contractual obligation to do so.”). The courts’
analysis focused on determining the nature of the obligation at issue. Because the
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alimony obligations were purely contractual,1 they were not spousal maintenance
for purposes of Chapter 8 and could not be enforced through income withholding.
See Heller, 359 S.W.3d at 904; Kee, 307 S.W.3d at 816; McCollough, 212 S.W.3d
at 645.
Simovich does not argue that the obligation at issue is spousal maintenance.
She concedes that it is purely contractual alimony; she nonetheless contends that
section 8.101 authorizes wage withholding “regardless of whether the obligation is
contractual alimony or court-imposed maintenance.” Resolving Simovich’s
contention requires us to examine the interplay of subsections (a) and (b).
In construing a statute, our objective is to determine and give effect to
legislative intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527
(Tex. 2000); Sharp Eng’g v. Luis, 321 S.W.3d 748, 750 (Tex. App.—Houston
[14th Dist.] 2010, no pet.). We look at the statute’s plain and common meaning
because we presume the legislature intended the plain meaning of its words. Allen,
15 S.W.3d at 527; Sharp Eng’g, 321 S.W.3d at 750. We may consider, among
other things, the statute’s objectives and the consequences of a particular
construction. Grimes Cnty. Bail Bond Bd. v. Ellen, 267 S.W.3d 310, 316 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied). We read the statute as a whole and
interpret it to effectuate every part. Id. We presume the legislature intended to
comply with the Texas Constitution. Tex. Gov’t Code Ann. § 311.021(1) (Vernon
1
Alimony obligations arising solely under contract are debts and may be enforced only
by “ordinary processes of law,” such as execution, attachment of real property, and orders
requiring payment of support as agreed. In re Green, 221 S.W.3d 645, 648 (Tex. 2007) (per
curiam); Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993). Such obligations cannot be enforced
through income withholding under section 8.101 because they do not give rise to a legal duty
under Chapter 8. See Heller, 359 S.W.3d at 904; Kee, 307 S.W.3d at 816; McCollough, 212
S.W.3d at 645; cf. Green, 221 S.W.3d at 648 (“[A] court order to pay spousal support is
unenforceable by contempt if the order merely restates a private debt rather than a legal duty
imposed by Texas law.”).
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2013); In re Allcat Claims Serv., L.P. 356 S.W.3d 455, 468 (Tex. 2011).
Subsection (a) is framed in permissive terms and affirmatively allows
withholding in a “proceeding in which periodic payments of spousal maintenance
are ordered, modified, or enforced.” Tex. Fam. Code Ann. § 8.101(a).
Subsection (b) is framed as a limitation on the applicability of “[t]his
subchapter,” meaning the entirety of sections 8.101 through 8.108 designated as
“Subchapter C. Income Withholding.” Sections 8.101 through 8.108 “[do] . . . not
apply to contractual alimony or spousal maintenance . . . unless . . . the contract
specifically permits income withholding; or . . . the alimony payments are not
timely made under the terms of the contract. Id. § 8.101(b) (1), (2).
Subsection 8.101(b)(1) is not at issue here because the contract does not
specifically permit income withholding. We focus on subsection 8.101(b)(2) and
Pappolla’s asserted failure to make timely alimony payments under the terms of
the contract.
The fit between sections 8.101(a) and 8.101(b) is not seamless. Subsection
(a), framed permissively to allow withholding, refers to “a proceeding in which
periodic payments of spousal maintenance are ordered, modified, or enforced.” In
contrast, subsection (b) is framed restrictively to exclude withholding but also
provides exceptions to the exclusion; it refers to “contractual alimony or spousal
maintenance.”
Simovich argues that we should read subsections 8.101(a) and 8.101(b)(2) as
independent provisions. Under this approach, withholding is permissible if either
subsection can be read in isolation to allow wage withholding for contractual
alimony. We reject this approach for two reasons.
First, this approach violates the command to read a statute as a whole. See,
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e.g., In re Allcat Claims Serv., 356 S.W.3d at 468.
Second, this approach impermissibly renders superfluous subsection (a)’s
affirmative grant of withholding power only in situations involving “payments of
spousal maintenance.” See, e.g., Grimes Cnty. Bail Bond Bd., 267 S.W.3d at 316.
As written, subsection (a) encompasses withholding for spousal maintenance but
not contractual alimony. Subsection (b) provides that section 8.101 and the rest of
Subchapter C does not apply unless an exception is satisfied. Simovich contends
that an exception applies under subsection (b)(2). But even if this exception
applies, the exception merely makes subsection 8.101(a) operative again — and
subsection 8.101(a) still encompasses only proceedings that involve spousal
maintenance. 2 Cf. Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 729 (Tex. App.
—Austin 2011, pet. denied) (satisfying a statutory provision creating exceptions to
an exclusion from workers’ compensation coverage does not automatically
establish coverage; satisfying exception merely establishes that exclusion does not
apply). The way to reconcile and harmonize these provisions is to determine, as
we do now, that income withholding may be used to enforce contractual alimony
under section 8.101 when contractual alimony satisfies the requirements for
spousal maintenance.3
2
Family Code section 158.001, concerning the use of income withholding to enforce
child-support obligations, mirrors the language in section 8.101(a): “In a proceeding in which
periodic payments of child support are ordered, modified, or enforced, the court or the Title IV-D
agency shall order that income be withheld from the disposable earnings of the obligor as
provided by this chapter.” Tex. Fam. Code § 158.001 (Vernon 2008).
3
See Tex. Fam. Code Ann. § 8.051 (Vernon 2006) (allowing a court to order spousal
maintenance only when “the spouse seeking maintenance will lack sufficient property . . . to
provide for the spouse’s minimum reasonable needs” and (1) the spouse from whom
maintenance is sought has recently been “convicted of or received deferred adjudication for . . .
an act of family violence;” or (2) the spouse seeking maintenance (a) “is unable to earn sufficient
income because of an incapacitating physical or mental disability,” (b) “has been married to the
other spouse for 10 years or longer and lacks the ability to earn sufficient income,” or (c) “is the
custodian of a child of the marriage . . . who requires substantial care and personal supervision
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Moreover, the reading urged by Simovich is constitutionally problematic.
The Texas Constitution allows income withholding in only two circumstances: (1)
the enforcement of court-ordered child support and (2) the enforcement of court-
ordered spousal maintenance. See Tex. Const. art. XVI, § 28. Simovich has
conceded the absence of a spousal maintenance award and has provided no basis
for concluding that the alimony obligation relates to child support. Therefore,
Simovich’s construction of section 8.101 to allow for income withholding under
the particular circumstances in this case would violate the constitution.4 This is an
additional reason for rejecting her proffered construction. See Tex. Gov’t Code
Ann. § 311.021(1); In re Allcat Claims Serv., 356 S.W.3d at 468.
The trial court erred by entering a wage withholding order to enforce
contractual alimony. We sustain Pappolla’s first issue, and we do not address his
second issue.
CONCLUSION
The judgment of the court below is reversed, and it is rendered that the wage
withholding order is vacated.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
because of a physical or mental disability that prevents the spouse from earning sufficient
income”).
4
We take no position on the constitutionality of section 8.101 in proceedings that involve
court-ordered spousal maintenance. That question is not raised by the record before us.
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