in the Interest of K.M.J., a Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00303-CV
IN THE INTEREST OF K.M.J.,
A CHILD
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Danny James appeals the trial court’s judgment granting
Appellee Karen Lynelle James Adair’s motion to enforce an agreed order for
child support. In his first three issues, including eight subissues, James argues
that the trial court abused its discretion by failing to literally interpret the agreed
order and by ordering repayment of expenses for an adult child that had
graduated from high school. In a fourth issue, James argues that the trial court
1
See Tex. R. App. P. 47.4.
abused its discretion by enforcing an oral promise to pay child support after a
child’s high school graduation. We will modify the trial court’s judgment and
affirm the judgment as modified.
II. FACTUAL BACKGROUND
James and Adair signed an agreed order requiring James to pay Adair
$550 per month in child support for their children, R.J. and K.J. The obligation
began March 1, 2004, and continued until R.J. was eighteen years old and no
longer attended high school;2 then James was to pay Adair $440 per month until
K.J. was eighteen and no longer attended high school.3 The agreed order also
required James to pay half of all medical expenses and half of all costs
associated with school activities. In a motion to enforce, Adair sought
confirmation of all arrearages and rendition of a money judgment. At a hearing
on her motion, the trial court entered into evidence a summary of Adair’s
testimony, itemizing the requested expenses. At the conclusion of the hearing,
the trial court took judicial notice of the agreed order and granted Adair’s motion,
confirming the amount that she had requested.4 The judgment awarded Adair
2
The record shows that R.J. turned eighteen on December 24, 2007, and
he graduated from high school in May 2008.
3
The record shows that K.J. turned eighteen on May 3, 2009, and
graduated from high school on May 30, 2009.
4
After selling R.J.’s $10,000 truck for $8,000, Adair modified her request,
asking James to pay half of the remaining $2,000. Changing this expense, the
trial court confirmed the exact amount of arrearages Adair alleged in her motion,
excluding interest.
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$15,735.76 for ―school related cost arrearages‖ and $390.00 for ―unreimbursed
health care expense arrearages.‖ This appeal followed.
III. CONTRACT CONSTRUCTION AND AGREED ORDER
In his first three issues, James argues that the trial court abused its
discretion by interpreting the agreed order to require James to pay half of all
activities related to high school and college and ordering support of an adult child
that had graduated from high school. James thus argues that the trial court
misconstrued the agreed order and that ordering support for an adult child
violates the Texas Family Code.5
We apply an abuse of discretion standard in reviewing a trial court’s
decision to grant or deny the relief requested in a motion for enforcement. See
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court abuses its
discretion by acting arbitrarily, unreasonably, or without reference to guiding
principles. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Att’y Gen. of
Tex. v. Stevens, 84 S.W.3d 720, 722 (Tex. App.—Houston [1st Dist.] 2002, no
pet.). In rendering a final judgment for child-support arrearages, the trial court
follows a two-step process. In re C.P., 327 S.W.3d 296, 301 (Tex. App.—El
Paso 2010, no pet.). First, the trial court, acting as a mere scrivener,
mechanically tallies the arrearage amount. Id. Second, the trial court applies
any statutory offsets, credits, or counterclaims before rendering the final
5
Adair did not file a brief.
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judgment. Id. An award of child support may be modified only by the filing of a
motion in the trial court. Id.; see Tex. Fam. Code Ann. § 156.002 (West 2008).
In confirming child-support arrearages, the trial court’s calculations must be
based on the evidence presented, not the trial court’s assessment of a fair and
reasonable result. Chenault v. Banks, 296 S.W.3d 186, 190 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). We will uphold the trial court’s findings as
long as there is some evidence of substantive and probative character that
supports its decision. See Worford, 801 S.W.2d at 109.
When interpreting an agreed order for child support, we interpret the order
as a contract between the parties and apply the general rules of contract
construction. Ex parte Jones, 163 Tex. 513, 520, 358 S.W.2d 370, 375 (1962)
(―This agreed judgment must be interpreted as if it were a contract . . . and the
interpretation thereof is governed by the laws relating to contracts, rather than
laws relating to judgments.‖). Our primary concern is ascertaining the meaning of
the contract and giving effect to the true intent of the parties. Seagull Energy E &
P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006); Frost Nat’l Bank
v. L & F Distribs., Ltd., 165 S.W.3d 310, 311–12 (Tex. 2005). To discern this
intent, we ―examine and consider the entire writing in an effort to harmonize and
give effect to all the provisions of the contract so that none will be rendered
meaningless.‖ Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) (emphasis in
original). No single provision taken alone will be given controlling effect; rather,
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all of the provisions must be considered with reference to the whole instrument.
Id.
If we can give the agreement a definite legal meaning or interpretation, it is
not ambiguous, and we must construe it as written. Universal C.I.T. Credit Corp.
v. Daniel, 150 Tex. 513, 517, 243 S.W.2d 154, 157 (1951). A contract is not
ambiguous simply because the parties disagree over its meaning. Dynegy
Midstream Servs., L.P. v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009).
There is no contention that the agreement is ambiguous, and we agree.
We will consider the provisions’ location in the agreement, the surrounding text,
and the language used in construing the following provisions:
Child Support
IT IS ORDERED that [James] is obligated to pay and shall pay
to [Adair] child support of $550.00 per month, with the first payment
being due and payable on March 1st, 2004 and a like payment being
due and payable on the first day of each month thereafter until the
first month following the date of the earliest occurrence of one of the
events specified below:
1. any child reaches the age of eighteen years, provided
that the periodic child support payments shall continue to be
due and paid until the end of the month in which the child
graduates from high school if the child is:
a. enrolled:
1) [in a program leading toward a high school
diploma];
2) [in a joint program receiving college credit and
credit towards a high school diploma];
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3) [in a private high school leading towards a high
school diploma];
....
Thereafter, [James] is ORDERED to pay [Adair] child support
of $440.00 per month . . . for the second child.
....
IT IS ORDERED that [James] is to pay [Adair] one-half of the
cost associated with any and or all school activities for the children,
the subject of this suit, so long as [Adair] gives to [James] 7-days
notice of the amount due and for what activity.
Health Care
IT IS ORDERED that medical support shall be provided for the
children as follows:
1. [James’s] Responsibility – It is the intent and purpose of
this order that [James] shall, at all times, provide medical
support for the children as additional child support. IT IS
THEREFORE ORDERED that, as additional child support,
[James] shall provide medical support for the parties’ children,
for as long as child support is payable under the terms of this
order, as set out herein.
....
[Each parent] is ORDERED to pay 50 percent of all
reasonable and necessary health-care expenses not paid by
insurance and incurred by or on behalf of the children . . . for as long
as child support is payable under the terms of this order. [Emphasis
added.]
The agreement requires the payment of monthly support, support
associated with school activities, and medical expenses. The ―Child Support‖
section includes both monthly support and support associated with school
activities, and it lists the circumstances under which child support terminates.
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The ―Health Care‖ section requires payment of medical expenses, and the
section states numerous times that it requires the payment of medical costs ―as
long as child support is payable.‖ It is apparent that the parties intended that
James’s duty would terminate under all the provisions at the same time that his
duty for monthly support terminated.
Both children turned eighteen prior to high school graduation, and the
parties agreed at trial that support terminated for each child upon that child’s
high-school graduation. The provision providing for termination requires
continued support after the child turns eighteen, but only if the child is working
towards a high school diploma.6 Adair contended at the hearing that she was
entitled to support associated with school activities even if the child had
concluded high school and, thus, was not working toward a high school diploma,
but the rules of contract construction set out above do not permit such a
construction of the agreement. The agreement does not confer a right of support
associated with school activities if the child is not working toward a high school
diploma. Additionally, as prerequisites for reimbursement for costs associated
with school activities, we construe the agreement to require that Adair notify
James of the amount of the expense and that she notify him of what school
6
Because the parties specified three types of schools that would allow for
continued support after eighteen, we construe this to mean that James must pay
half of the children’s medical expenses and half of the costs associated with their
school activities, including college-related expenses, until the child is no longer
attending one of the types of schools listed.
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activity the expense is associated with. See In re T.J.L., 97 S.W.3d 257, 267
(Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding that trial court properly
denied mother’s reimbursement request because she failed to comply with the
notice provision’s time requirement, which was a prerequisite for obtaining
reimbursement from father).
Therefore, the unambiguous terms of the agreed order entitled Adair to a
judgment for the unpaid amount of medical expenses that she incurred for a child
prior to that child’s graduation and expenses associated with school activities if
she incurred the expense before the child graduated from high school and if she
provided seven days’ notice to James ―of the amount due and for what activity.‖
A. Expenses Incurred Before Graduation and Associated with
School Activities
In subissues one, four, and six of the first issue, James argues that the trial
court abused its discretion by ordering him to reimburse Adair for the children’s
cell phones, by ordering him to reimburse Adair for R.J.’s college registration and
orientation, and by interpreting ―school activity‖ to include college. We disagree.
Adair requested reimbursement for half of the children’s cell phone
expenses while they attended high school. Adair testified that she provided
notice to James of the amount due and for what activity, which was calling
parents to pick them up from school when sick and from activities after school.
James testified that he could not afford cell phones and did not agree to pay for
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them. But the agreement does not require James’s consent; thus we overrule
James’s fourth subissue.
Adair also requested reimbursement for R.J.’s college registration and
orientation that he attended in April 2008 before his high school graduation.
Adair provided notice to James of the amount due and for what activity, which
was college registration and orientation. While these were expenses for college,
they were for school activities that Adair incurred before R.J. graduated high
school, and she provided notice as required by the agreement. Therefore, the
record contains evidence of a substantial and probative character supporting the
trial court’s judgment ordering repayment of these expenses because Adair
complied with the prerequisite for obtaining reimbursement from James.
Accordingly, we overrule James’s first and sixth subissues of his first issue.
B. Other Expenses Incurred Before Graduation—Some Associated
with School Activities
In issue four and subissues three, seven, and eight of issue one, James
argues that the trial court abused its discretion by ordering him to pay for costs
indirectly related to school activities. James contends that the provision requires
that the expense ―relate to a specific school activity and not merely relate to
attending school in general.‖ Were we to adopt James’s interpretation, we would
render the clause stating ―cost associated with any and or all school activities‖
meaningless. [Emphasis added.] Adair argued at the hearing on her motion that
the provision provides for the payment of all expenses ―related‖ to school and
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―college-related expenses.‖ Were we to adopt Adair’s interpretation, requiring
James to reimburse Adair for expenses related to school generally, we would
render the notice provision meaningless because it requires ―notice of the
amount due and for what activity.‖ [Emphasis added.] Because we presume
that the parties intended every clause to have some effect and that no clause is
meaningless, we reject both James’s and Adair’s interpretation. See Coker, 650
S.W.2d at 393. Therefore, as explained above, we conclude that the agreed
order entitled Adair to repayment of all expenses associated with school activities
that she incurred for a child prior to that child’s high school graduation if she
provided notice of the amount and notice of what activity.
Adair requested reimbursement for half of the cost of the children’s
vehicles. Adair testified that she notified James of the amount due for both
vehicles and that the children use their vehicles to drive to school and to drive
home after their numerous school activities. Also, Adair testified that she
provided James with notice of the amount due for gas and testified that the gas
was to drive to school and drive home after their school activities. Adair’s notice
for the children’s vehicles and gas satisfied the notice requirement provided by
the agreement. The evidence supports the trial court’s award for these
expenses.
Although Adair provided James with notice of the amount of driver’s
education, vehicle insurance, repairs, maintenance, and tags, the record does
not contain any evidence of a substantive and probative character that she
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provided notice of what school activity these expenses were tied to. Adair’s
testimony merely showed that these expenses ―went along with [the] vehicle.‖
Thus, the trial court abused its discretion by ordering James to reimburse Adair
for these vehicle-related expenses totaling $3,305.47 because Adair did not
comply with the prerequisite for obtaining reimbursement from James.
Therefore, we overrule in part and affirm in part James’s third subissue.
James argues that the trial court’s judgment should not include half of the
cost of school supplies and clothes. Adair’s testimony explained that most
children ―get a few new clothes at the beginning of the school year.‖ The record
reveals that on prior occasions Adair notified James of the cost of uniforms and
what activity the uniforms were associated with and notified James of the cost of
a calculator and that it was for an American Mathematics Competition; James
does not contest these expenses. But here, Adair merely explained that these
clothes and supplies were ―directly associated with their schooling,‖ which fails to
satisfy the prerequisites outlined in the agreement. Adair testified that the
children’s school clothes cost more as they grew older and that James’s monthly
support did not cover these expenses, but her testimony appears to be a plea for
increased support rather than arguing that the expense was associated with a
school activity. Thus, the trial court abused its discretion by awarding Adair half
the cost of school clothes and supplies totaling $900 because Adair did not
comply with the prerequisite for obtaining reimbursement from James by
notifying him of the particular school activity the expenditures were for.
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Therefore, we sustain James’s fourth issue and subissues three, seven, and
eight of his first issue.
C. Expenses Incurred After Graduation
In his second issue, James argues that the trial court abused its discretion
by enforcing an oral agreement to support an adult child after graduation. 7 In his
third issue and second and fifth subissues of his first issue, James argues that
the trial court abused its discretion by ordering him to pay for expenses that Adair
incurred for R.J.’s support after graduating from high school. The trial court’s
judgment awarded Adair $1,883.00 for the following expenses that she incurred
after R.J.’s high school graduation:
Spanish trip/AFA trip June 2008 $775.00
AFA in-processing June 2008 $500.00
Thanksgiving travel Nov. 2008 $246.25
Christmas travel Dec. 2008 $211.75
Contacts Dec. 2008 $150.00
As to Adair’s argument regarding James’s oral promise to pay expenses
that she incurred after R.J.’s graduation—the Thanksgiving and Christmas
travel—the Texas Family Code prohibits court-ordered child support once a child
reaches the age of majority and graduates high school. See Tex. Fam. Code.
Ann. § 154.001 (West 2008) (stating court may order payment of child support
―until the child is 18 years of age or until graduation from high school, whichever
7
While the trial judge did not address the oral agreement directly, the
judgment included expenses that Adair incurred for R.J.’s support after high
school graduation.
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occurs later‖). Parties may agree to continued support of a child over eighteen,
but to seek enforcement, parties to an order must have agreed that the terms
would be enforced contractually or the order must expressly incorporate a
contractual agreement. See Tex. Fam. Code. Ann. § 154.124(c) (West 2008);
Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996) (stating that parents’ agreement
that one provide support for children until turning twenty-one ―is enforceable as a
contract only if their agreement so provides‖); Elfeldt v. Elfeldt, 730 S.W.2d 657,
658 (Tex. 1987) (stating that terms ―are not enforceable as contract terms unless
the agreement so provides‖); Burtch v. Burtch, 972 S.W.2d 882, 886 (Tex. App.—
Austin 1998, no pet.) (―Absent a contractual agreement, there is no basis for a
court to enforce child support for children who have graduated from high school
and are over the age of eighteen.‖).
Because James has no statutory obligation to support an adult child after
high-school graduation, the trial court could not order James to pay these
expenses unless he is bound by a contract. The agreed order does not include a
written agreement for extended child support that is enforceable as a contract.
Accordingly, we hold that the trial court abused its discretion by ordering James
to pay Adair for the Thanksgiving and Christmas travel without any contractual or
statutory basis. See Tex. Fam. Code Ann. § 154.124(c); Bruni, 924 S.W.2d at
368; Elfeldt, 730 S.W.2d at 658.
In addition to the Thanksgiving and Christmas travel, the trial court ordered
James to pay for half of the combined cost of R.J.’s high school Spanish trip and
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trip to the AFA, AFA in-processing, and contact lenses. Regarding the Spanish
and AFA trip, the Spanish trip was a high school activity, and Adair incurred the
cost before R.J. had graduated. Adair testified that James had failed to pay $200
of his half of the Spanish trip’s cost and that there was an additional fuel charge
of $264. Adair listed $775 for the cost of the combined trips, but the remaining
$311 was for the trip to the AFA, which was a college expense. The remaining
expenses were for R.J.’s support after he had graduated high school, and the
agreement does not require James to pay Adair for half of their cost. We hold
that the trial court abused its discretion by including expenses in the judgment
amount that were for R.J.’s support after he had turned eighteen and graduated
high school. James is not required to pay Adair for half of the AFA trip, the AFA
in-processing, the Thanksgiving and Christmas travel, or the contact lenses.
Therefore, we sustain James’ third issue and his second and fifth subissues.
IV. CONCLUSION
We hold that the trial court abused its discretion by confirming $5,934.47 in
child support arrearages. Accordingly, we modify the trial court’s judgment to
reflect an arrearage amount of $9,861.29 in ―school related cost arrearages‖ and
$240.00 for ―unreimbursed health care expense arrearages.‖ See Tex. R. App.
P. 43.2(b); In re A.R.J., 97 S.W.3d 833, 835 (Tex. App.—Dallas 2003, no pet.).
We affirm the trial court’s judgment as modified.
BILL MEIER
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JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DELIVERED: July 28, 2011
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