Sudan, Margaret Dye, now known as Maggie Mackenzie v. Sudan Jr., Philip P.--Appeal from 309th District Court of Harris County

Appellee s Motion for Rehearing Overruled; Affirmed in part, Reversed and Remanded in part; Opinion Issued April 17, 2003 With

Appellee s Motion for Rehearing Overruled; Affirmed in part, Reversed and Remanded in part; Opinion Issued April 17, 2003 Withdrawn; and Majority and Dissenting Opinions on Motion for Rehearing filed September 25, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-00854-CV

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MARGARET DYE SUDAN, now known as

MAGGIE MACKENZIE, Appellant

V.

PHILIP P. SUDAN, JR., Appellee

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On Appeal from the 309th District Court

Harris County, Texas

Trial Court Cause No. 93-06003A

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D I S S E N T I N G O P I N I O N

O N M O T I O N F O R R E H E A R I N G

I respectfully dissent to that portion of the majority opinion modifying the trial court s judgment and concluding that the parties amendment to the property settlement agreement is unenforceable. The subject Agreement Effecting A Second Amendment To Property Settlement Agreement Incident To Divorce was executed by the parties on July 28, 1998. The hearing on Phil Sudan s (Sudan) motion for summary judgment was held on April 19, 2000. On May 19, 2000, the trial court granted Sudan s motion. Following a second hearing on June 6, 2000, the order which is the subject of this appeal was signed on May 30, 2001. At that time, both children were over eighteen years old and neither had lived with Maggie Mackenzie (Mackenzie) for three to four years. The majority wholly ignores the undisputed fact that Sudan had been the de facto custodial parent and sole source of financial support for both children long before the amendment was executed. Obviously, the trial court was fully aware of this when it granted Sudan s motion for summary judgment and reserved the child support arrearage issue for further proceedings. Both parties filed pleadings and addressed the child support issue in summary judgment motions. In proceedings prior to consideration of motions for summary judgment, the trial court was obviously inclined to approve modification of child support.[1] Moreover, the trial court implicitly approved modification of child support when it ruled that the amendment is enforceable. When a motion for summary judgment is based on different grounds and the order granting the motion is silent as to the reason for granting the motion, it must be affirmed if any of the movant s theories are meritorious. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872 73 (Tex. 2001).

Alternatively, disposition of this issue turns on whether the amendment covered court ordered child support. I do not agree with my colleagues conclusion that the amendment covers Sudan s child support obligation under the decree. My colleagues recite but seem to disregard the following plain language in the amendment:

Maggie accepts the Final Payment as full and final payment of all amounts payable by Phil under the Settlement Agreement and Maggie further agrees and acknowledges that the Final Payment constitutes full and final satisfaction of all obligations between the parties under the Settlement Agreement.

The majority opines that the provision in the agreement for payment of child support contingent on non-payment of alimony is court ordered child support. They base this conclusion on the fact the agreement includes a term requiring court approval for any amendment affecting child support and the decree expressly made the agreement part of the decree as if it were recited verbatim. Notwithstanding the plain language in the amendment, my colleagues conclude that it pertains to payments and obligations under the decree. There is no language in the agreement or the decree expressing that the obligation to pay contractual alimony mutates into court ordered child support simply because the court incorporated the agreement verbatim into the decree. Moreover, Mackenzie may not recharacterize contractual alimony payments as child support. See Birdwell v. Birdwell, 819 S.W.2d 223, 228 29 (Tex. App. Fort Worth 1991, writ denied). My colleagues cite Wilde v. Murchie, 949 S.W.2d 331, 333 (Tex. 1997) in support of the proposition that courts should construe divorce decrees in an effort to harmonize and give effect to all that is written. The court in Wilde construed the terms of a divorce decree; it was not dealing with an agreement incident to divorce which had been incorporated into a divorce decree. In order to avoid confusion when the parties to a divorce enter into an agreement incident to divorce, I would follow the more practical and well reasoned approach taken by the court in Pampell v. Pampell, 2001 WL 223288, at *1 (Tex. App. Austin 2001, no pet.) (not designated for publication). When divorcing spouses enter into a child support agreement that is incorporated into a divorce decree, the parties obligations are then governed by two distinct instruments, the contract and the decree. Moreover, when the duty to make support payments arises from an agreement between the parties, rather than from a divorce decree, the rights and obligations of the parties are governed by the rules of contract. See Hutchings v. Bates, 406 S.W.2d 419, 421 (Tex. 1966); Griffin v. Griffin, 535 S.W.2d 42 (Tex. Civ. App. Austin 1976, no writ).

Relying on the court s rationale in Williams v. Patton, 821 S.W.2d 141 (Tex. 1991), the majority concludes that lack of court approval renders the amendment unenforceable. The facts in Williams are distinguishable. In Williams, one of the parties sought to enforce an agreement settling an arrearage claim. The trial court (not a court of appeals) declared the agreement void. The Supreme Court agreed with the 1st Court of Appeals conclusion that child support arrearages also remain under the supervision of the trial court and may not be modified by the parties without court approval until the court either (1) reduces the unpaid child support to written judgment or (2) loses jurisdiction. Sudan correctly asserts that the Williams case applies only to court-ordered child support, not contractual alimony payments with child support payments contingent on non-payment of the alimony.

For the sake of brevity and judicial economy, I shall not address Mackenzie s challenges to the amendment and Sudan s numerous defensive theories. In conclusion, I join the majority in affirming the judgment as to all claims other than Mackenzie s claim for breach of the agreement. However, for the reasons stated above, I would not reverse the trial court s summary judgment that the amendment is valid and enforceable.

/s/ Charles W. Seymore

Justice

Judgment rendered and Majority and Dissenting Opinions filed September 25, 2003.

Panel consists of Justices Hudson, Edelman, and Seymore. (Edelman, J. majority).

[1] On August 1, 1999 the presiding judge adopted associate Judge Michael Hay s denial of Mackenzie s motion for contempt in connection Sudan s failure to pay the life insurance premium. Under the agreement, Sudan was obligated to pay the premium in order to insure payment of his child support obligations in the event of his death. Associate Judge Hay wrote: The children lived with Sudan since 1994. Voluntary relinquishment is a defense. TFC 157.008. The parties settled obligations between the parties July 28, 1998.