in the Interest of M.E.M. and M.M.M. ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-11-00657-CV
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IN THE INTEREST OF M.E.M. and M.M.M.
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On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CV57731
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MEMORANDUM OPINION
Margaret Ann Moody appeals the trial court’s order terminating Terry Don
Moody’s obligation to make monthly payments to Margaret toward his adult
children’s college education expenses.
I. FACTUAL BACKGROUND
Margaret and Terry were divorced in 1996. They had two children together,
M.E.M., who was seven years old at the time of the divorce, and M.M.M., who
was three years old at the time of the divorce. As a result of an agreement between
the parties, the court entered an agreed divorce decree appointing Margaret the sole
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managing conservator of the children, and Terry as possessory conservator. The
decree provided that Terry was to pay child support for the two children of the
marriage. The decree contained a separate provision under the subtitle, “Additional
Child Support Obligation for Education Beyond High School,” whereby after the
children completed high school, if either child pursued a higher education, Terry
would provide additional support to Margaret to defray those expenses. According
to the decree, Margaret would apply these funds towards the costs of providing a
higher education for each child so enrolled. The parties also stipulated that the
decree is a contract, except with regard to the parent-child provisions. Both
Margaret and Terry approved and consented to both the form and substance of the
decree. No appeal was taken from the original agreed divorce decree.
In August 1999, Margaret and Terry agreed to a modification of the original
agreed divorce decree, resulting in Terry agreeing to pay an increased amount of
child support until the children’s 18th birthday or their graduation from high
school. The agreed modification order stipulated “that all other terms and
provisions of the Agreed Final Decree of Divorce signed February 9, 1996,
including, but not limited to all obligations identified as additional child support
shall remain in full force and effect.” Both Margaret and Terry consented to the
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form and content of this modification order. No appeal was taken from the
modification order.
Terry filed a petition to modify the parent-child relationship, seeking, among
other things, to terminate “support payments[,]” “which applies to child support
after 18 and graduation.” Terry later amended his petition to modify to include a
request for declaratory judgment. Terry sought a finding that the provision in the
original decree ordering Terry to make payments to Margaret beyond the
children’s 18th birthdays and subsequent to their graduation from high school was
unenforceable.
The trial court entered an order titled, “Order Terminating Child Support
Beyond Eighteen and Graduation from High School[,]” that forms the basis of this
appeal. The order terminates Terry’s obligation “to pay child support for [M.E.M.
and M.M.M.] beyond the age of 18 years and graduation from high school[.]”
Margaret filed a motion for new trial, which the trial court denied. Margaret
appealed.
On appeal, Margaret argues that the trial court abused its discretion when it
granted Terry’s petition to modify and request for declaratory judgment because
the evidence is legally insufficient to support the trial court’s judgment. For the
reasons discussed below, we reverse the trial court’s order.
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II. DECLARATORY JUDGMENT
In his request for declaratory judgment, Terry contends that the Texas
Family Code does not support the original divorce decree’s provision ordering him
to pay college expenses for his children after they reach age 18 or graduate from
high school. Terry argues, therefore, that the provision in the 1996 decree was
unenforceable. He challenges the validity of the section of the decree titled,
“Additional Child Support Obligation for Education Beyond High School,” which
provides, “that [Terry] has agreed, and IT IS THEREFORE ORDERED AND
DECREED, that [Terry] shall pay to [Margaret], the amount of $845.00 per month,
for so long as any child is enrolled in a college . . . not to exceed a period of five
years per child.” We conclude that Terry’s request for declaratory judgment is an
impermissible collateral attack of the original divorce decree.
A collateral attack on a judgment is an attempt to avoid the binding effects
of provisions of a judgment, in a proceeding not instituted for the purpose of
correcting, modifying, or vacating the judgment. Jones v. Jones, 900 S.W.2d 786,
787-88 (Tex. App.—San Antonio 1995, writ denied) (quoting Hogan v. City of
Tyler, 602 S.W.2d 555, 558 (Tex. Civ. App.—Tyler 1980, writ ref’d n.r.e.). “A
direct attack--such as an appeal, a motion for new trial, or a bill of review--
attempts to correct, amend, modify or vacate a judgment and must be brought
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within a definite time period after the judgment’s rendition.” PNS Stores, Inc. v.
Rivera, 379 S.W.3d 267, 271 (Tex. 2012). Judgments are subject to collateral
attack if they are void, but not if they are merely voidable or erroneous. See Jones,
900 S.W.2d at 788. A judgment is void only when the court rendering the
judgment did not have jurisdiction over the parties, jurisdiction over the subject
matter, jurisdiction to enter the judgment, or the capacity to act as a court. PNS
Stores, 379 S.W.3d at 272 (quoting Travelers Ins. Co. v. Joachim, 315 S.W.3d 860,
863 (Tex. 2010)); Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987). If a final
judgment is based on erroneous holdings as to substantive law, it is not void, but
merely voidable, and cannot be collaterally attacked. See Cook, 733 S.W.2d at 140;
see also Berry v. Berry, 786 S.W.2d 672, 673 (Tex. 1990).
Terry did not attack the 1996 decree by direct appeal, writ of error, or bill of
review. Terry has not shown that the court lacked jurisdiction or the capacity to act
when it entered the original agreed divorce decree. His request for declaratory
judgment is based solely on his argument that the decree’s provision stems from an
erroneous application of the substantive law; therefore, even if he were correct, and
the provision at issue in the 1996 agreed decree was unenforceable, the decree
would not be void, but only voidable. See Cook, 733 S.W.2d at 140; see also
Berry, 786 S.W.2d at 673. We conclude that Terry’s request for declaratory
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judgment was an improper attempt to collaterally attack the 1996 divorce decree.
See In re D.S., 76 S.W.3d 512, 517-19 (Tex. App.—Houston [14th Dist.] 2002, no
pet.); In re Marriage of Williams, 998 S.W.2d 724, 727-28 (Tex. App.—Amarillo
1999, no pet.); In re Marriage of Vogel, 885 S.W.2d 648, 650-51 (Tex. App.—
Amarillo 1994, writ denied).
III. PETITION TO MODIFY
On appeal, Margaret also argues that the trial court abused its discretion in
modifying the original divorce decree to nullify the college tuition provision. Terry
filed a petition to modify the original agreed divorce decree, alleging that his
obligation to pay all support ended when his children reached the age of 18 and
graduated from high school. The trial court granted Terry’s request, modifying the
original decree, ending Terry’s obligation to pay under the divorce decree.
We review an order modifying a divorce decree for an abuse of discretion.
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); see also In re J.E.P., 49
S.W.3d 380, 386 (Tex. App.—Fort Worth 2000, no pet.). A trial court abuses its
discretion when it acts in an unreasonable or arbitrary manner. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court
also abuses its discretion if it misapplies the law to established facts. State v. Sw.
Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975). We will reverse the trial court’s
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modification order only when it appears from the record as a whole that the trial
court abused its discretion. See In re D.S., 76 S.W.3d 512, 520 (Tex. App.—
Houston [14th Dist.] 2002, no pet.); see also Gillespie v. Gillespie, 644 S.W.2d
449, 451 (Tex. 1982).
A. Effect of the 1999 Agreed Modification Order on the Parties’ Contractual
Agreement
The trial court found no basis to enforce the payments beyond age 18 and
graduation from high school. Margaret argues the trial court abused its discretion
in terminating Terry’s obligation to pay for the children’s college tuition because
this obligation was based on a contractual agreement between the parties. In
support of her position, she relies on the provision in the decree which states, “The
parties have consented to the terms of this decree and stipulated that it is a contract,
except with regard to the parent-child provisions.” However, the trial court found
that Margaret’s filing of the August 1999 motion to modify amounted to “an
adversarial effort[,] which terminated any previously existing contractual
provisions governing an initial agreement concerning child support.” We disagree.
When an order modifies a prior child support order, it only supersedes the
prior order “to the extent a modification is ordered.” In re Clark, No. 10-03-00037-
CV, 2004 WL 1632768, at *5 (Tex. App.—Waco July 21, 2004, orig. proceeding)
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(mem. op.); see also In re W.M.R., No. 02-11-00283-CV, 2012 WL 5356275, at *3
(Tex. App.—Fort Worth Nov. 1, 2012, no pet.) (mem. op.); Office of the Attorney
Gen. of Tex. v. Wilson, 24 S.W.3d 902, 906 (Tex. App.—Dallas 2000, no pet.).
Here, the modification order only modified the amount of Terry’s monthly child
support obligation and did not modify any other provision in the original decree of
divorce. There is no indication in the modification order that the parties intended to
modify any portion of the original divorce decree other than Terry’s statutory child
support obligation. There is support in the modification order that the parties
intended to preserve Terry’s obligation regarding his daughters’ college tuition.
The modification order specifically states, “that all other terms and provisions of
the Agreed Final Decree of Divorce signed February 9, 1996, including, but not
limited to all obligations identified as additional child support shall remain in full
force and effect.” The provision Terry challenges is subtitled, “Additional Child
Support Obligation for Education Beyond High School.” A plain reading of the
trial court’s modification order supports that it only modified certain provisions in
the decree. Nothing in the modification order modifies the provisions the parties
put in place to pay for their children’s education after they graduated from high
school or turned 18. We conclude the trial court erred in finding that the 1999
motion to modify terminated that provision.
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B. Trial Court’s Authority to Modify the Agreed Divorce Decree
The issue we must next resolve is whether the trial court had authority to
modify the provision in the agreed divorce decree creating Terry’s obligation to
help pay the college tuitions of M.E.M. and M.M.M. Section 156.001 of the
Family Code limits a trial court’s authority to modify a final decree by providing
that “[a] court with continuing, exclusive jurisdiction may modify an order that
provides for the conservatorship, support, or possession of and access to a child.”
See Tex. Fam. Code Ann. § 156.001 (West 2008). The provision at issue here
states,
The Court finds that [Terry] has agreed, and IT IS
THEREFORE ORDERED AND DECREED, that [Terry] shall pay to
[Margaret], the amount of $845.00 per month, for so long as any child
is enrolled in a college or university, technical, vocational, or business
school not to exceed a period of five years per child. Such funds shall
be applied by [Margaret] toward the costs of providing higher
education for each child enrolled.
This provision clearly does not relate to conservatorship, possession, or access to a
child. In contrast with his statutory child support obligations, which require Terry
to provide financial support for the basic needs of his minor children, the college-
tuition provision, by its express language, is a provision solely to provide for the
college education of Terry’s adult children. We conclude the college tuition
provision of the agreed divorce decree is not something the trial court could have
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ordered without the agreement of the parties. See id. § 154.001. Accordingly, we
hold the trial court had no authority to modify this provision after the agreed
judgment became final. See id. § 156.001.
The writing at issue here is an agreed decree. An agreed decree is a consent
judgment and thus has the same degree of finality and binding force as a judgment
rendered by the court at the conclusion of an adversary proceeding. See McCray v.
McCray, 584 S.W.2d 279, 281 (Tex. 1979) (citing Pollard v. Steffens, 343 S.W.2d
234, 239 (1961)). Without the consent of the parties, the trial court cannot modify
or set aside a provision of the agreement except for fraud, accident, or mutual
mistake of fact. Boufaissal v. Boufaissal, 251 S.W.3d 160, 161-162 (Tex. App.—
Dallas 2008, no pet.); Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex. App.—
Dallas 2008, no pet.). Terry has not alleged the decree resulted from any fraud,
accident, or mutual mistake of fact. Terry did not file a direct appeal from the
agreed divorce decree, nor has he shown the trial court lacked jurisdiction or
capacity to act, therefore; the agreed decree is final. See PNS Stores, 379 S.W.3d at
272. Accordingly, we conclude the trial court abused its discretion in modifying
the agreed divorce decree and we reverse and render judgment setting aside the
trial court’s order of September 1, 2011.
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REVERSED AND RENDERED.
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CHARLES KREGER
Justice
Submitted on October 4, 2012
Opinion Delivered February 28, 2013
Before Gaultney, Kreger, and Horton, JJ.
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