Houston family law and appellate attorney Janice Berg had a banner day yesterday when the First and the Fourteenth each handed down a published decision in her party’s favor. Interestingly, both cases came out of the 309th Judicial District Court. And even more interesting is Chief Justice Kem Frost’s concurrence in Bartlett v. Bartlett.
In the original proceeding In re McLaurin, No. 01-14-00920-CV (Tex.App.–Houston [1st Dist.] Apr. 30, 2015) (in which both Janice and Dan Lemkuil were listed as the relator’s lawyers on appeal) Lea filed a petition for writ of habeas corpus. She and her husband Scott had divorced in 2010. In 2011, Lea filed a post-divorce enforcement action which resulted in Lea’s request being denied and the trial court ordering Lea pay Scott sanctions in the amount of $52,378.88 as reimbursement for attorney’s fees (the “Judgment”). Lea was ordered to pay the Judgment by June 12, 2014. Lea filed an appeal of the Judgment, which is pending in another cause number. Scott then filed a petition for enforcement seeking to hold Lea in contempt for failure to timely pay the Judgment. This time, Lea was given until November 13, 2014 to pay the Judgment. On November 13, 2014, Lea was found in civil and criminal contempt for failing to pay the Judgment. She was also found liable for Scott’s further attorney’s fees in the amount of $13,020.00 (plus $283.24 in costs). Lea was taken into custody and confined in the Harris County Jail. She filed her petition for writ of habeas corpus the next day asserting her incarceration unconstitutionally imprisoned Lea for a debt. The Court of Appeals agreed, finding the initial $52,378.88 sanctions order and the subsequent $13,020.00 fee award were not related to child support and thus could not serve as the basis for a contempt judgment ordering imprisonment.
In Bartlett v. Bartlett, No. 14-14-00058-CV (Tex.App.–Houston [14th Dist.] Apr. 30, 2015), Lori Bartlett sued her ex-husband William Bartlett for breach of contract for violating provisions of their divorce decree. In the agreed decree, in a section setting forth the division of the marital estate and not in the child support section, William was ordered to pay the reasonable post-high school education expenses of each child, including, inter alia, books, room and board, and health insurance, “provided the child is a full-time student and maintains at least a ‘C’ or equivalent grade point average.” Their son’s GPA dipped below a C average to 1.929 after the first year of school, but after a summer session, it was at least a C average. The trial court signed a final judgment in Lori’s favor, finding William had breached the decree. The trial court’s findings of fact and conclusions of law concluded, in part, that the college-expense provision was not for child support. William appealed.
On appeal, four of William’s five issues are premised on the proposition that the college-expense provision was one for child support. But, the Court of Appeals noted, post-majority support is not child support. The opinion (signed by Justice McCally and joined by Justice Boyce) addressed each of these four issues with dispatch.
In the only issue not premised on the notion that the college-expense provision was child support, William argued that the contract was materially breached when the son failed to maintain a cumulative C GPA which excused his further performance. Lori argued that William waived this issue by not obtaining or requesting a finding on the issue in the trial court. The Court of Appeals agreed. The trial court’s findings did not address the issue because William did not plead material breach as an affirmative defense.
Lori also argued that even if the son did breach the contract by not maintaining a C average, it was not a material breach. The Court of Appeals held that the trial court could have reasonably found that any breach was not material as to the expenses awarded to Lori. The majority even spent almost two pages of its opinion analyzing whether the trial court could reasonably find that the son’s GPA dip below the C level was not a material breach.
Chief Justice Kem Frost filed a colorful and slightly formalistic concurrence which begins with the tantalizing line, “This is a case of mistaken identity” which immediately called to my mind a detective novel.
The Chief Justice’s concurrence flows from the argument that the son’s failure to maintain a C average is not a breach of contract, but a failure of condition precedent. That is, “[t]he son’s achieving a ‘C’ average was an event not certain to occur that affected William’s duty to perform” because “[t]he parties intended this event to occur before Lori or the son had a right to William’s performance.” The Chief Justice also argued that because the son’s GPA was not “maintained” above a C average (i.e. without interruption), William had no continuing obligation to pay after the lapse. Then, “[e]ven presuming for the sake of argument that a breach-of-contract analysis would be appropriate in this context,” the Chief Justice found the 1.929 GPA to be a material breach: “Anything that falls short of meeting [this exact and unforgiving standard] is a material failure.” I am glad I did not have to show my undergraduate transcript to the Chief.
Then, in a plot twist worthy of a detective novel, appears a section entitled: “A Game-Changer: Operation of Texas Rule of Civil Procedure 54.” In her live petition, Lori pled that all conditions precedent to her claims had been performed or had occurred. Under TRCP 54, Lori was required to prove only the conditions precedent that William specifically denied and William did not specifically deny that the son maintained a GPA of at least C. Because William did not specifically deny it, Lori did not have to prove at trial that the condition precedent was satisfied, had been performed, or had occurred. Thus, though the Chief found the trial court’s contractual analysis flawed, she found there was no basis to overturn the judgment and, she concluded on a bit of a poetic note, “so the appeal has a strange and ironic ending” (like many a good detective novel).