Nancy Lee Evans v. Thomas Ray Evans, Jr.--Appeal from 300th District Court of Brazoria County

Opinion issued November 16, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00604-CV

____________

NANCY LEE EVANS, Appellant

V.

THOMAS RAY EVANS, JR., Appellee

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 17705*RH01

MEMORANDUM OPINION

Appellant, Nancy Lee Evans ( Nancy ), challenges the trial court s Order in Suit to Modify Parent-Child Relationship and Cumulative Judgment on Arrears entered after the trial court denied her motion to clarify a prior child support order entered against appellee, Thomas Ray Evans ( Thomas ). // In three issues, Nancy contends that the trial court erred in (1) refusing to clarify the child support order and concluding that it is unambiguous, (2) construing the order to terminate child support when the eldest of their three children reached the age of 18, and (3) concluding that Thomas did not waive his right to complain of the enforceability of the order.

We reverse and remand.

Factual and Procedural Background

Nancy and Thomas divorced // in Fort Bend County, and the final decree of divorce, entered on December 5, 1990, contains various provisions regarding the division of the marital estate, conservatorship, and child support. The decree identifies their three children as (1) Noelle, who was seven years old at the time of the divorce, (2) Thomas, who was two years old, and (3) Jonathan, who was one year old. The decree s child support provision orders Thomas to make payments to Nancy in the amount of $1,500 per month until the child reaches the age of 18 years . . . . // (emphasis added). It also orders any employer of Thomas to withhold disposable earnings for the purpose of meeting the child support obligation and sets a schedule for such withholding. The withholding language provides that amounts for child support would be withheld until the date of the earlies [sic] occurrence of one of the following events: 1) any child reaches the age of 18 years . . . . // (emphasis added). On June 4, 2002, Nancy filed a motion for enforcement of child support, alleging that Thomas had failed to comply with the child support provisions of the decree. On July 1, 2002, the trial court entered an agreed order on the motion for enforcement confirming arrearage and interest for child support in the amount of $85,202.34. The trial court also found Thomas in contempt, suspended the commitment, and set forth a schedule for the payment of the cumulative unpaid balance.

In July 2004, the Office of the Attorney General brought an action on behalf of Nancy for enforcement. In his first amended response, Thomas affirmatively plead[ed] there [were] no child support orders in place and same terminated in June 2002. In the alternative, Thomas argued that the divorce decree was incapable of enforcement because it was ambiguous and [] not clear and specific enough in its terms that [Thomas] knows what duties or obligations are required.

Nancy subsequently filed her motion for clarification of the child support order, and the Office of the Attorney General filed an amended motion for clarification and enforcement of the prior order and, alternatively, a suit to modify the child support order.

On February 17, 2005, the trial court held a hearing on the motions and, on March 24, 2005, in its Order Denying Clarification, found that the divorce decree should not be clarified and that child support ceased as ordered. In its Findings of Fact and Conclusions of Law, the trial court found that the pertinent language in the decree is clear and specific relative to the payment of child support and when child support ends. It also found that Thomas s child support obligation terminated when any child turned eighteen or graduated from high school, whichever occurred last. The trial court concluded that, to the extent that the child support obligation ended prior to June 1, 2002, Thomas had waived any complaint by agreeing to the establishment of an arrearage reflected in the negotiated settlement on the motion for contempt. However, the trial court further concluded that Thomas had not waived any right to complain or contest any child support obligation after the agreed judgment. In its Order in Suit to Modify Parent-Child Relationship and Cumulative Judgment on Arrears, the trial court reduced Thomas s cumulative obligations to $50,605.68, which essentially eliminated any child support from June 2002 to July 2004. Clarification

In her first and second issues, Nancy argues that the trial court erred in refusing to clarify the child support order in the underlying divorce decree and in construing the child support order to terminate child support when Noelle, the eldest child, became 18 years old because the pertinent language is vague and ambiguous.

A trial court may not amend, modify, alter, or change the division of property made or approved in the divorce decree. Tex. Fam. Code Ann. 9.007(a) (Vernon 2006); Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003). However, a trial court may clarify an order rendered by the court in a proceeding if it finds, on the motion of a party or on its own motion, that the order is not specific enough to be enforced by contempt. Tex. Fam. Code Ann. 157.421(a) (Vernon 2002); see also Gross v. Gross, 808 S.W.2d 215, 219 (Tex. App. Houston [14th Dist.] 1991, no writ) (stating that because appellant never moved to clarify, he could not later complain that order was ambiguous). The only basis for a trial court s authority to clarify a prior order is when the provisions are ambiguous. McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 130 (Tex. App. Houston [14th Dist.] 2004, no pet.). Whether a decree is ambiguous is a question of law subject to de novo review. See Shanks, 110 S.W.3d at 447.

Thomas argues that because it is undisputed that the decree terminates [his] child support obligation when any child turns 18, the trial properly denied Nancy s request to clarify the decree so as to require him to continue to make child support payments after Noelle, the eldest child, turned 18 years old. He contends that Nancy is essentially seeking a substantive change to the decree. Thomas notes that although the decree acknowledges all three children of the marriage, when discussing child support, it clearly states that Thomas is obligated to pay child support until the childreaches the age of 18 years. Thomas also notes that the employer s withholding provision of the decree provides that Thomas s earnings were to be withheld until any child reaches the age of 18 years.

In its Findings of Fact and Conclusions of Law, the trial court found significance in the decree s use of the term the child in the language defining Thomas s child support obligations. It also emphasized the withholding paragraph s language ordering that withholding of Thomas s earnings are to cease when any child meets the stated contingencies. Based on this language, the trial court interpreted the decree to terminate child support when any child of his turned eighteen, explaining that the language on page 18 of the decree [child support provisions] is consistent with and clarified by the language on page 20 of the decree [withholding provisions]. It concluded that the child support language in the decree is clear and specific and that Thomas s obligation to pay child support terminated when any child of his turned eighteen or graduated from high school, whichever occurred last.

Agreed judgments, such as divorce decrees, are interpreted in accordance with contract law. McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984). When the decree is plain and unambiguous, there is no room left for interpretation, and the effect of the decree is a question of law for the court to decide in light of the literal meaning of the language used. See Reiss v. Reiss, 118 S.W.3d 439, 441 42 (Tex. 2003). A contract is ambiguous only if, after the application of established rules of construction, an agreement is still susceptible to more than one reasonable meaning. DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). Language should be given its plain grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated. Caldwell v. Curioni, 125 S.W.3d 784, 792 (Tex. App. Dallas 2004, pet. denied). Although the determination of whether a contract is ambiguous should be limited to an examination of the language of the agreement, courts may examine extrinsic evidence of surrounding circumstances or the subject matter of the contract to determine if a latent ambiguity exists. Birmingham Fire Ins. Co. of Pa. v. Am. Nat l Fire Ins. Co., 947 S.W.2d 592, 603 (Tex. App. Texarkana 1997, writ denied). A court should give great weight to the interpretation placed upon a contract of uncertain meaning by the parties themselves. Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979).

Initially, we note that, generally, an employer s withholding order is not intended to replace the initial child support ordered by a court, nor to affect the amount ordered or change the dates on which the child support is due. Ex parte Christensen, 868 S.W.2d 376, 379 (Tex. App. Houston [1st. Dist.] 1993, orig. proceeding). Thomas argues that Christensen is distinguishable because the withholding order in that case was a separate order and the withholding language in this case is contained alongside the child support provisions in the decree. However, regardless of the proximity of the withholding language to the child support provisions, it is the child support provisions, and not the withholding order, that defines Thomas s child support obligations. Courts must favor an interpretation of a decree that affords some consequence to each part of the instrument so that none of the provisions will be rendered meaningless. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 235 (Tex. 2003). Moreover, we note that the withholding paragraph states that Thomas s earnings be withheld for the support of Noelle Lee Evans, Thomas Richmond Evans, and Jonathan Lawrence Evans. Thus, although the language provides that withholding ceases when any child turns 18, the same paragraph expressly recognizes that the support is in fact for the benefit of all three children.

The child support provisions state only that Thomas is to pay child support until the child turns 18 years old. Although the decree, in its standard possession provisions, notes that the term child includes each child who is a subject of this suit, the decree does not define child for purposes of the child support provisions.

Thomas concedes, in his briefing, that [t]here is no indication in the [d]ecree limiting this use of the child to any of the specific children. Thus, there is no way of determining which of the couple s three children is the child described in the child support provisions. If the meaning of language used in a written instrument becomes uncertain when applied to the subject matter of the instrument, the instrument is latently ambiguous. Birmingham Fire Ins. Co., 947 S.W.2d at 603.

Here, the decree, as worded, is ambiguous. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980). Accordingly, we hold that the trial court erred in denying Nancy s motion for clarification of the child support order.

We sustain Nancy s first and second issues. //

Conclusion

We reverse the trial court s Order in Suit to Modify Parent-Child Relationship and Cumulative Judgment on Arrears and remand for proceedings consistent with this opinion.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Alcala.