In The Interest Of T. K., A Child v.--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00011-CV
IN THE INTEREST OF T.K., a Child
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-05849
Honorable David Peeples, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 3, 2003

AFFIRMED

Mary Farr a/k/a Mehrnoush Khadem ("Farr") appeals the trial court's order clarifying the allocation of child support and attorney's fees in an agreed final decree of divorce. Because the issues raised in this appeal are settled by existing precedent, we affirm the trial court's order in this memorandum opinion. Tex. R. App. P. 47.4.

1. Farr initially complains that the trial court that entered the order was not the court of continuing, exclusive jurisdiction and, therefore, was without jurisdiction to enter the order. This court has previously held that the exchange-of-benches provisions allow any district judge to determine matters filed in another court in the same county, and once exclusive jurisdiction has been established in a particular court, in the absence of competent evidence to the contrary, any district judge in the county acting in that case is doing so for the court of continuing, exclusive jurisdiction. In re Garza, 981 S.W.2d 438, 440-42 (Tex. App.--San Antonio 1998, orig. proceeding). Based on the holding in In re Garza, the trial court had jurisdiction to enter the clarification order in this case.

2. Farr also contends that the trial court was without jurisdiction to consider the petition in intervention because it was filed "nearly a month" after the trial court rendered the final decree of divorce. The final decree of divorce was rendered June 12, 2002, and the petition in intervention was filed by the attorneys on July 9, 2002, within the period the trial court had plenary power over its judgment. Tex. R. Civ. P. 329b. More importantly, however, Farr waived any complaint regarding the intervention because she failed to file a motion to strike. Bryant v. United Shortline Inc. Assurance Servs., N.A., 984 S.W.2d 292, 295 (Tex. App.--Fort Worth 1998, no pet.); Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573, 586 (Tex. App.--San Antonio 1998, pet. denied).

3. Farr finally contends that the trial court erred in clarifying the divorce decree because the agreed divorce decree was unambiguous and the clarification changed the substantive division of property. Both parties agree that consent or agreed judgments are interpreted according to the law of contracts. Whether a contract is ambiguous is a question of law for the court to decide. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000); Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). In this case, the contractual provision at issue reads:

IT IS ORDERED that Jay Khadem is obligated to pay and shall transfer to Mehrnoush Khadem the following property for the support of both children:

(1) CB 5051 Block, Lot TR 25C; Non-adjacent property; described as approximately eight acres of land located near Walzem and Eisenhauer with a current value of $221,0000.

(2) The sum of $30,000 to be made payable to Mehrnoush Khadem and her attorney's [sic], Jamie L. Graham & Lynne Wilkerson. These funds will be enforceable as child support and attorney's fees adjudicated as costs. In addition, this amount will be deposited into a trust account for Dan Carabin to be disbursed by him as follows:

a. $10,000.00 on or before June 4, 2002, due and payable at the Law Offices of Dan Carabin, 409 South Presa Street, San Antonio, Texas 78205.

b. $10,000.00 on or before September 4, 2002, due and payable at the Law Offices of Dan Carabin, 409 South Presa Street, San Antonio, Texas 78205.

a. $10,000.00 on or before December 4, 2002, due and payable at the Law Offices of Dan Carabin, 409 South Presa Street, San Antonio, Texas 78205.

In addition to the foregoing provision, Jay Khadem also was ordered to pay monthly child support.

We hold that the provision in the divorce decree regarding the $30,000 is ambiguous. The meaning of the provision of the decree stating that the $30,000 "will be enforceable as child support and attorney's fees adjudicated as costs" is uncertain and doubtful and is reasonably susceptible to more than one meaning. Coker, 650 S.W.2d at 393-94. Because the agreed divorce decree contains an ambiguity, its interpretation becomes a fact issue. Id. at 394. Because Farr did not request and pay for the reporter's record from the trial court's hearing on the motion to enforce, we must assume that the evidence presented at the hearing would support the trial court's order and that the $30,000 constituted attorney's fees and not child support. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.--Houston [14th Dist.] 1999, pet. denied); see also Tex. R. App. P. 37.3(c) (appellate court may only consider issues that do not require a reporter's record for a decision if appellant fails to request or pay for reporter's record).

The order of the trial court is affirmed.

Alma L. L pez, Chief Justice