In Re RFG

282 S.W.3d 722, 2009 WL 901935
CourtCourt of Appeals of Texas
DecidedApril 3, 2009
Docket05-08-00285-CV
StatusPublished

This text of 282 S.W.3d 722 (In Re RFG) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re RFG, 282 S.W.3d 722, 2009 WL 901935 (Tex. Ct. App. 2009).

Opinion

282 S.W.3d 722 (2009)

In the Interest of R.F.G. and R.G.G.

No. 05-08-00285-CV.

Court of Appeals of Texas, Dallas.

April 3, 2009.

*724 Jimmy L. Verner, Jr., Verner & Brumley, Dallas, TX, for Appellant.

Richard F. Garza, Dallas, TX, pro se.

Before Justices MORRIS, WRIGHT, and MOSELEY.

OPINION

Opinion by Justice WRIGHT.

Mother of the minor children R.F.G. and R.G.G. appeals from the trial court's order clarifying a divorce decree. In six issues, Mother asserts generally that the trial court erred in determining the divorce decree was ambiguous and clarifying provisions regarding child support, debt division, and property division. We sustain Mother's first, second, fifth, and sixth issues, reverse the trial court's order with respect to the child support provisions and the award of the king-sized bed, and modify the order with respect to the division of debts. We remand this case to the trial court to calculate the child support arrearages in accordance with this opinion. In all other respects, we affirm the trial court's order.

Background

The trial court rendered an agreed final divorce decree on April 24, 2007. Subsequently, Mother filed a motion for clarification of the property division. She sought to clarify the debt division to provide that Father is responsible for one-half of the mortgage payments on the marital residence. Father filed a motion for enforcement and clarification. He sought enforcement of the property division, claiming that Mother had refused to allow him to recover the property awarded to him. He also sought clarification of the child support provision claiming that all direct payments made by him to Mother during the pendency of the divorce applied to child support obligations incurred since the divorce decree. After conducting a hearing on the parties' motions, the trial court ordered that Father's direct payments to Mother during the pendency of the divorce apply to all child support payments whether incurred prior to or after the divorce decree, Mother is responsible for the entire *725 mortgage payments on the marital residence, and Father must pay Mother $1,194.00 for the king-sized bed awarded to him as his separate property under the divorce decree. This appeal timely followed.

Child Support Payments

In her first two issues, Mother contends the trial court erred in determining that the child support provisions in the agreed divorce decree were ambiguous and in ordering that payments made to Mother during the pendency of the divorce apply to child support obligations ordered in the divorce decree. Mother contends the trial court essentially deprived the children of ten months' child support.

Section 157.421 of the Texas Family Code permits a trial court to clarify a previous child support order by rendering an order that is specific enough to be enforced by contempt. TEX. FAM.CODE ANN. § 157.421(b) (Vernon 2008). However, a court may not change the substantive provisions of an order. TEX. FAM.CODE ANN. § 157.423(a) (Vernon 2008). A substantive change made through a clarification order is unenforceable. TEX. FAM. CODE ANN. § 157.423(b) (Vernon 2008). The only basis for clarifying a prior decree is when a provision is ambiguous. Bina v. Bina, 908 S.W.2d 595, 598 (Tex.App.-Fort Worth 1995, no writ). Whether a divorce decree is ambiguous is a question of law subject to de novo review. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex.2003).

An agreed divorce decree is a contract subject to the usual rules of contract construction. See McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984). We construe divorce decrees, like judgments, as a whole to harmonize and give effect to the entire decree. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Our primary concern in interpreting a contract is to ascertain the true intent of the parties. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996); Zurich Am. Ins. Co. v. Hunt Petroleum (AEC), Inc., 157 S.W.3d 462, 465 (Tex. App.-Houston [14th Dist.] 2004, no pet.). If, when read as a whole, the divorce decree's terms are unambiguous, we must give effect to the order in light of the actual language used. Coker, 650 S.W.2d at 393. On the other hand, if the divorce decree's terms are ambiguous, that is, subject to more than one reasonable interpretation, we must review the record along with the decree to aid in interpreting the judgment. Id.

The rendition of a final divorce decree does not in itself nullify any temporary order with respect to payments past due. In re Gonzalez, 993 S.W.2d 147, 157 (Tex.App.-San Antonio 1999, no pet.); Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. Civ.App.-Dallas 1980, orig. proceeding). It supersedes the temporary order with respect to future support, but the obligation for past support, as fixed by the temporary order, continues unless modified by the provisions of the divorce decree. Shaver, 597 S.W.2d at 500. The rendition of the divorce decree is not inconsistent with a continuing obligation to make payments that are past due under the temporary order. Id.

The divorce decree provisions relating to child support and pertinent to our discussion are as follows:

Child Support

IT IS ORDERED that [Father] is obligated to pay and shall pay to [Mother] child support of $1,500.00 per month, with the first payment being due and payable on April 1, 2007 and a like payment being due and payable on the 1st day of each month thereafter . . .
*726 * * *

Withholding from Earnings

* * *
It is further noted that the Child Support Order entered into by the parties was formally amended by the Rule 11 Agreement which provided that the additional Child Support of $1,000.00 was vacated. Accordingly, it is ORDERED AND DECREED that the child support in the amount of $1,500.00 per month was to commence on July 1, 2006 and that [Father] will be given credit for all child support payments made directly to [Mother] since the commencement of this suit. It is further ORDERED AND DECREED that the additional Child Support payment of $1,000.00 per month pursuant to the Temporary Orders be vacated.

Payment

IT IS ORDERED that all payments shall be made through the Texas Child Support Disbursement Unit at P.O. Box 659791, San Antonio, Texas XXXXX-XXXX, and then remitted by that agency to [Mother] for the support of the children.. . .
* * *

Miscellaneous Child Support Provisions

No Credit for Informal Payments

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Related

Zurich American Insurance Co. v. Hunt Petroleum (AEC), Inc.
157 S.W.3d 462 (Court of Appeals of Texas, 2004)
Coker v. Coker
650 S.W.2d 391 (Texas Supreme Court, 1983)
In the Interest of Gonzalez
993 S.W.2d 147 (Court of Appeals of Texas, 1999)
Shanks v. Treadway
110 S.W.3d 444 (Texas Supreme Court, 2003)
McGoodwin v. McGoodwin
671 S.W.2d 880 (Texas Supreme Court, 1984)
Ex Parte Shaver
597 S.W.2d 498 (Court of Appeals of Texas, 1980)
Bina v. Bina
908 S.W.2d 595 (Court of Appeals of Texas, 1995)
Heritage Resources, Inc. v. NationsBank
939 S.W.2d 118 (Texas Supreme Court, 1997)
In the Interest of R.F.G.
282 S.W.3d 722 (Court of Appeals of Texas, 2009)

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Bluebook (online)
282 S.W.3d 722, 2009 WL 901935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rfg-texapp-2009.