Opinions, Feb. 24, 2015

The Fourteenth Court of Appeals has released two family law opinions today, Brandon Watson v. Meghan Clark, 14-14-00031-CV, and In the Interest of D.B.J., 14-14-00285-CV.

In the Interest of D.B.J. represents a conflict between contractual child support and the Texas Constitution’s prohibition on imprisoning someone for a debt. Tex. Const. art. I, sec. 18. The parents entered into an agreed final decree under which the father would pay “child support” until four years after the non-disabled child had turned eighteen and graduated from high school, i.e. extending child support through college. Six months after the child graduated from high school, the mother filed a motion for enforcement by contempt and did not assert any other theories of recovery such as breach of contract. The trial court denied the motion for enforcement, finding: 1) the support provisions were not enforceable by contempt because the child had turned eighteen and graduated from high school; and 2) that the agreement extending child support through college could be enforced by breach of contract remedies only if the agreement specifically so provided. In one of many footnotes, the Court of Appeals noted this second finding was premised on cases which relied on superseded sections of the Family Code and, as will be seen below, telegraphs the Court’s doubt on this holding. Relying upon the Supreme Court’s opinion in In re Green, 221 S.W.3d 645 (Tex. 2007) (per curiam), the Court of Appeals found that an agreement by the parties is enforceable by contempt only if the agreement meets the Family Code’s other requirements. Because the Family Code does not permit child support for a nondisabled child to be ordered after the child has turned eighteen and graduated from high school, the agreement at issue was not enforceable by contempt.

The most interesting thing about the opinion is the larger issues referenced in footnotes. First, the Court of Appeals specifically addressed an approach taken by the Dallas Court of Appeals in a similar case. In In re W.R.B., No. 0-12-00776-CV, 2014 Wl 1008222 (Tex.App.–Dallas, Feb. 20, 2014), that Court of Appeals found that the term “child support” as used in Chapter 154 does not include support for nondisabled children who have turned eighteen and have graduated from high school, and thus section 154.124 of the Texas Family Code which provides for agreements concerning child support does not apply. The Fourteenth Court of Appeals expressed doubt: “We are not convinced that this definitional approach to interpreting section 154.124 is valid” because, the Court of Appeals said, Chapter 154 contains no definition of “child support” and section 101.003(b) provides that in the context of child support, the term “child” includes “a person over 18 years of age for whom a person may be obligated to pay child support.” This definition, the Court of Appeals noted, applies to all of Title 5, including section 154.124. Then the Court of Appeals noted that the Supreme Court has previously interpreted section 154.124 (or its predecessor) as applying in the context of agreed child support past the age of eighteen and graduation from high school, which it would not have done if it agreed with the Dallas Court of Appeals’ approach. It is interesting that the Court of Appeals went out of its way to distinguish the reasoning of a sister court.

Secondly, the Court of Appeals noted somewhat ominously that the court was not reaching an opinion on whether the mother could “properly seek to enforce the support agreement through other means of enforcement provided in the Family Code” (such as obtaining a lien on real or personal property) or through a breach of contract action because “[w]e do note, however, with some concern, that this issue is not entirely clear given the current state of the law.” Stay tuned, folks.

Watson v. Clark is an unfortunate reminder that a motion to reinstate a case must be verified lest, as in this case, appeal rights be lost. Tex. R. Civ. P. 165(a)(3). Watson and Clark entered into an MSA before trial. The mediator filed a mediation disposition report representing the parties had settled; Watson did not appear for trial and the trial court dismissed the case for want of prosecution. Watson then filed two motions, both unverified: 1) a motion to enter an order on the MSA; and 2) a motion to reinstate the case. The trial court denied the motion to reinstate (which the Court of Appeals ruled was a void order). Watson then appealed the order DWOPing the matter. The Court of Appeals cited the Supreme Court’s holding that an unverified motion to reinstate does not extend appellate deadlines and thus the motions did not extend Watson’s appellate deadlines (even if the motion to enter judgment on the MSA was construed as a motion to reinstate the case). Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986). Because Watson’s notice of appeal was not timely filed, the Court of Appeals lacked appellate jurisdiction.

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