in the Interest of J.A.T., J.A.T., J.L.T. and J.N.T, Children ( 2002 )

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00208-CV

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LISA HARRINGTON, Appellant

V.

JOHNNY NEIL TAYLOR, Appellee

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On Appeal from the 309th District Court

Harris County, Texas

Trial Court Cause No. 96-16528

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O P I N I O N

After a suit to modify the terms of a child support order, the trial court denied appellant's request for attorney's fees. Appellant appeals the trial court's order that denied her attorney's fees.

Background

On May 9, 1997, appellant, Lisa Harrington, and appellee, Johnny Neil Taylor, signed an agreed decree of divorce that provided for child support paid by Taylor, among other things. The decree also contained a "Duty to Mediate" clause that stated that attorney's fees in the amount of $2,500 would be paid by either party who commences an action without submitting the claim to mediation first. On February 7, 2000, Taylor filed a petition to reduce his child support payments. In response, Harrington filed an answer to the suit, in which she stated that she had to retain an attorney, and therefore, Taylor should pay her attorney's fees. She also filed a counter-petition on October 2, 2000, seeking to increase the child support payments. Neither party attempted mediation.

At the end of trial, Harrington asked the trial court to award $2,850 in attorney's fees and take judicial notice of the clause awarding attorney's fees in the decree of divorce. In its order on February 9, 2001, the trial court denied Harrington's request for attorney's fees.

In her sole point of error, Harrington argues that she is entitled to $2,500 in attorney's fees as a matter of law.

In one cross point, Taylor argues that Harrington should be sanctioned for filing a frivolous appeal.

A marital property agreement is treated as a contract. As such, its meaning is governed by the law of contracts, even though the agreement is incorporated into a final divorce decree. McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984). The language of a contract shall be given its plain grammatical meaning if possible, and the court should avoid any construction that is unreasonable, inequitable, and oppressive. Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex. 1987). If a contract is unambiguous, the courts will give effect to the intention of the parties as expressed in the agreement. Dechon v. Dechon, 909 S.W.2d 950, 956 (Tex. App.--El Paso 1995, no writ). The entire agreement must be interpreted in such a way that all its provisions are given effect and that none are rendered meaningless. See Soto v. Soto, 936 S.W.2d 338, 341 (Tex. App.--El Paso 1996, no writ); Praeger v. Wilson, 721 S.W.2d 597, 600-01 (Tex. App.--Fort Worth 1986, writ ref'd n.r.e.). In other words, every attempt must be made to harmonize all of the provisions within the agreement. Soto, 936 S.W.2d at 341. Each provision must be considered with reference to the whole agreement. Id. A contract is ambiguous only if there is uncertainty as to which of two meanings is correct. Dechon, 909 S.W.2d at 956; Kurtz v. Jackson, 859 S.W.2d 609, 611 (Tex. App.--Houston [1st Dist.] 1993, no writ). Ambiguity is a question of law for the court. Soto, 936 S.W.2d at 341.

Taylor argues that the mediation clause is ambiguous because it is subject to two interpretations. Specifically, he contends that his claim for a decrease in child support does not arise under the decree, but rather a change in his earning capacity.   

The Duty to Mediate clause provides:

IT IS ORDERED AND DECREE [sic], and the parties agree, that any claim or controversy arising under this Decree that is not resolved by the parties through direct communication without mediation, shall be submitted to mediation before any party commences any action in the court. IT IS FURTHER ORDERED AND DECREED, and the parties agree, that if either party commence [sic] any legal action prior to submitting the claim or controversy to mediation, then that party shall pay the other parties' attorneys fees incurred in connection with such action, up to and including the amount of $2,500.

The language used in the clause is clear and concise. The clause plainly provides that a party who brings a cause of action without mediating first will owe up to $2,500 in attorney's fees. After reviewing the decree of divorce, we conclude that the duty to mediate clause is not ambiguous.

In this case, Taylor brought a suit to modify his child support payments, without first attempting mediation. At the end of trial, Harrington's attorney testified that her reasonable and necessary attorney's fees equaled at least $2,500. Thus, by the plain meaning of the Duty to Mediate clause, Taylor owes Harrington $2,500 for not attempting to mediate first.   

Taylor argues next that Harrington is not entitled to attorney's fees because she breached the contract when she countersued him for an increase in child support. In Mead v. Johnson Group, Inc., the Texas Supreme Court stated that a party in default on a contract is not relieved by the other party's subsequent breach. 615 S.W.2d 685, 689 (Tex. 1981). Here, after Taylor filed suit to decrease his child support payments, Harrington had to retain an attorney. She subsequently filed a countersuit seeking to increase Taylor's child support payments. Her filing a countersuit without first attempting mediation does not relieve Taylor of his initial breach. See id. Thus, by the plain meaning of the decree of divorce, the trial court should have awarded $2,500 in attorney's fees to Harrington, as a matter of law.

Taylor also argues that Harrington has waived the requirements of the mediation clause because she invoked the judicial process. See Ez Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 (Tex. 1996); Spain v. Houston Oilers, Inc., 593 S.W.2d 746, 747 (Tex. App.--Houston [14th Dist.] 1979, no writ). He contends that, because Harrington went to trial, she has waived her rights under the decree of divorce.

Taylor relies on Ez Pawn and Spain; however, these two cases are distinguishable for a number of reasons. First, both cases concerned arbitration clauses, rather than mediation clauses. Second, both cases were analyzed under federal law. Third, the issue in each case was whether one of the parties had waived the right to request arbitration. Here, the instant case neither concerns an arbitration clause, nor a request for mediation. Moreover, as soon as Taylor brought suit to decrease his child support payments, Harrington had to retain an attorney to preserve her rights. In her answer to Taylor's suit, she specifically requested attorney's fees. Accordingly, we hold that Harrington's claims for attorney's fees have not been waived.

We sustain Harrington's sole point of error.

In one cross-point, Taylor argues that we should sanction Harrington for filing a frivolous appeal and award him $2,500 in damages. Because we sustain Harrington's sole point of error, we conclude that Harrington did not file a frivolous appeal.

We overrule Taylor's sole cross point.

Conclusion

We affirm the judgment in part and modify the judgment to order that Taylor pay Harrington $2,500 in attorney's fees. We affirm the judgment as modified.

Adele Hedges

Justice

Panel consists of Justices Hedges, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.4.