Peddicord v. Peddicord

522 S.W.2d 266, 1975 Tex. App. LEXIS 2689

• Court: Court of Appeals of Texas
• Decided: March 27, 1975
• Docket: 7684
• Status: Published

Opinions

STEPHENSON, Justice.

This is an appeal from a summary judgment granted to plaintiff. The parties will be referred to here as they were in the trial court.

Plaintiff, Jean Peddicord, brought this suit against her former husband, Gerald Peddicord. The record shows they executed a property settlement agreement December 2, 1970, and a divorce was granted December 7, 1970. In the divorce decree the recitation is made that the agreement is approved by the court, incorporated into the judgment by reference, and was found to be contractual in nature. The agreement provided that defendant should pay plaintiff $350 on the first and fifteenth of each month, beginning immediately after the granting of this divorce, until January 1, 1981, at which time the' payment would be reducd to $250. The payments would also be reduced to $250 each if defendant was unemployed. The payments were to be continued as long as plaintiff should live or until she remarried. Defendant made the payment as provided until November 1973, since which time no payments have been made.

Defendant’s sole point of error is that the trial court erred in granting plaintiff’s motion for summary judgment in that the trial court failed to allow defendant to assert contractual defenses to the property settlement agreement. Defendant pleadings, in essence were: lack of consideration; failure of consideration; duress in executing the agreement; lack of mental capacity to contract.

Plaintiff’s motion for summary judgment was based upon admission made by defendant in response to plaintiff’s request for admissions. Defendant made these admissions : He was the manager of the Tangle-wood Hills Country Club, on Lake Texo-ma, at the time of execution of the settlement agreement, divorce, and at present. That he had made no payments since November 1973. That he had complied with the terms of such agreement from the date of the divorce until November 1973, with one exception. That he was represented by an attorney at the time of making the agreement and at the time the divorce decree was entered.

The trial court properly refused to allow defendant to interpose contractual defenses to the property settlement agreement which was incorporated into the divorce judgment. The settlement agreement became a part of the judgment of the trial court, and to allow defendant to raise contractual defenses would be to allow a collateral attack upon that judgment.

As far as we have been able to ascertain, this is the first case passing directly upon that point. In Lampkin v. Lampkin, 480 S.W.2d 35 (Tex.Civ.App.—El Paso 1972, no writ), the former wife brought suit to collect delinquent payments under a property settlement agreement incident to a divorce. Defendant plead lack of consideration and coercion. The trial court granted the wife’s motion for summary judgment which was affirmed by the Court of Civil Appeals. However, the appellate court found against the husband as a matter of law as to the defenses plead.

In Akin v. Akin, 417 S.W.2d 882 (Tex. Civ.App.—Austin 1967, no writ), the wife brought suit to collect delinquent child support paymants under an agreement made by the parties and which was incorporated into the divorce decree. The husband plead failure of consideration. The trial court granted the wife’s motion for summary judgment and the Court of Civil Appeals affirmed with this statement: “If appellant has any remedy in the premises it is by direct attack on the divorce judgment in the court which rendered it.”

In Miller v. Miller, 463 S.W.2d 477 (Tex.Civ.App.—Tyler 1971, writ ref’d n. r. e.), the former wife brought suit to collect unpaid payments due under a written property settlement which was approved by the court. The husband plead no consideration, inadequate consideration, and unjust enrichment. The order granting the wife’s motion for summary judgment was affirmed by the Court of Civil Appeals by a finding that there were no material issues of fact. See also Chandler v. Chandler, 323 S.W.2d 377 (Tex.Civ.App. — San Antonio 1959, writ dism’d).

In Ex Parte Jones, 163 Tex. 513, 358 S. W.2d 370, 375-376 (1962), we find some support for the action we are taking in the case before us. There a trial court held the husband in contempt of court for failure to build the wife a house as agreed in a property settlement incorporated into the divorce decree. The Supreme Court granted the husband’s petition for a habeas corpus with this statement: “The contractual provisions in the settlement decree or agreed judgment are neither subject to modification nor can they be enforced by contempt proceedings.”

We do not decide this case by passing upon the contractual defenses raised by defendant, and holding they have no merit. We hold that the judgment of the trial court entered December 7, 1970, became a final judgment when there was no appeal. Upon a suit to enforce the terms of the settlement agreement approved in such judgment, the sanctity and finality of that judgment cannot be collaterally attacked. Therefore, no issues of fact were raised by the defendant through his pleadings, and the trial court properly granted plaintiff’s motion for summary judgment.

Affirmed.