Unending Spousal Maintenance?: Opinions, Dec. 21, 2017

The First District Court of Appeals released two memorandum opinions today, Lowery v. Lowery, No. 01-16-00147-CV, on the termination of contractual spousal maintenance, and In re H.C.C., No. 01-16-00876-CV, on modification of conservatorship.

In Lowery v. Lowery, Wife and Husband divorced in 2009. The decree obligated Husband to pay Wife $1,600 per month in spousal maintenance until either Wife died, Husband died, Wife’s remarriage, or further order of the court, including a finding of cohabitation by Wife with another person. Neither party appealed the decree.

Over four years later, in October 2014, Husband filed an original petition to modify his spousal maintenance obligation, arguing the obligation did not terminate in accordance with Section 8.054(a)(1) of the Texas Family Code, which provides that the trial court may not order spousal maintenance for more than three years. Alternatively, he argued that if the trial court did not modify the termination date of the income-withholding order for spousal maintenance, it should be terminated as the obligation was contractual alimony and not subject to wage withholding. Wife filed an answer stating Chapter 8 of the Family Code does not require an end date for spousal maintenance.

In August 2015, Husband filed a motion for judgment nunc pro tunc, arguing the decree had a discrepancy between the judgment signed and the judgment the court intended to sign. Specifically, Husband argued that the MSA signed before the decree provided spousal maintenance would be “in accordance with the Family Code.” And that the decree failed to provide for the termination of the payments three years after entry of the order. The MSA, the COA noted, was not incorporated into the decree.

In August 2015, Husband also began missing payments. Wife filed an enforcement and contempt action and asked, if the order was not specific enough to be enforced, that trial court clarify it. Husband filed an amended motion for clarification of the decree, arguing the decree was not specific enough to be enforced by contempt and asking the court to clarify the termination date for his spousal support obligation.

At the hearing on the motion to clarify, the trial court opined that the decree conflicted with the statute in effect at the time. In January 2016, the trial court found the spousal maintenance section of the decree was contrary to Section 8.054 of the Texas Family Code, was not enforceable by contempt, and that the obligation terminated by operation of law three years after the decree was signed. Wife appealed.

The Court of Appeals held that, essentially, the decree meant what it said. The decree was, as a contract, unambiguous because it provided for when the maintenance obligation ended (Husband’s death, Wife’s death or remarriage, or further order of the court, including a finding of Wife cohabitating with another person) and that the trial court erred by referring to Section 8.054 because it was extraneous evidence that the trial court could not rely on unless the decree was ambiguous. Because the decree was not ambiguous, the trial court could not rely on Chapter 8 of the Texas Family Code. Just because the decree referenced Chapter 8, the COA said, that did not create an ambiguity.

But even if the decree was ambiguous, the COA said, Section 8.054 did not resolve the ambiguity. Subsection 8.054(a) provides a limitation on spousal maintenance for three years and subsection 8.054(b) provides spousal maintenance can last as long as a recipient spouse’s disability continues. The record did not indicate which subsection governed Husband’s obligation.

Because the decree was not appealed and was valid on its face, it was not subject to collateral attack. The trial court’s order terminating the spousal maintenance was vacated.

In In re H.C.C., Father appealed a judgment naming him and Mother as JMCs, with Mother as primary. The opinion is 38 pages. The procedural history and factual background are lengthy. Father, appellant, asserted nineteen issues in his brief. Due to time constraints, I am going to reduce my summary to the main issues.

Mother and Father divorced in 2009. The decree was modified in October 2012, giving Mother a SPO. During the modification, there were allegations that Mother abused the child and CPS concluded there was reason to believe Mother abused the child. After the modification was entered, Father filed numerous complaints with CPS alleging child abuse by Mother. CPS ruled out all of these post-modification complaints. A psychiatrist hired by Father concluded, based on reviewing photos of bruises, the child had been abused, but the child made no direct statement to the psychiatrist regarding abuse. Mother agreed to be placed on supervised visitation in February 2013, which lasted until June 2014. Mother contended the supervised visitation lasted so long because Father purposefully stalled or dragged out the court-ordered evaluation of the child. Mother met with the court-appointed expert, Dr. Petzold, seven or eight times and provided her with documentation, whereas Father only went to Dr. Petzold’s office twice and provided her with no documents. There was evidence that Father was arrested for domestic violence against his new wife just months before trial, but the assault charge was dismissed when Father and his new wife reconciled. A CPS caseworker found that Father and Stepmother were “on the verge of emotionally abusing” the child by repeatedly questioning the child and prompting him to make outcries of abuse or neglect. The Court of Appeals found there was some substantive evidence which supported the trial court’s determination that naming Mother as primary was in the child’s best interest.

One of Father’s issues on appeal was that the final order and the FF/CL differed on the proper amount of child support to be paid by Father, the final order ordering payments of $651/mo and the FF/CL finding that $516/mo was the proper amount. Mother conceded the error. The COA modified the judgment to reflect Father pay $516/mo in child support.

Besides the child support adjustment, the COA affirmed the trial court’s final order.

 

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