Williams v. Patton

796 S.W.2d 526, 1990 Tex. App. LEXIS 2076, 1990 WL 119646
CourtCourt of Appeals of Texas
DecidedAugust 16, 1990
Docket01-89-00026-CV
StatusPublished
Cited by7 cases

This text of 796 S.W.2d 526 (Williams v. Patton) 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
Williams v. Patton, 796 S.W.2d 526, 1990 Tex. App. LEXIS 2076, 1990 WL 119646 (Tex. Ct. App. 1990).

Opinions

OPINION

SAM BASS, Justice.

This appeal concerns the validity of a settlement and release agreement for past and future child support and an order denying appellant’s motion to modify support, based on materially and substantially changed circumstances.

We affirm.

Houson D. Williams, appellant, and Sherry Yvonne Patton, appellee, were divorced on December 2, 1974. Appellee was named managing conservator of Amy Diane Williams. Appellant was ordered to pay child support of $121 per month. Appellant did not pay child support from 1977 through 1985.

On October 15, 1985, appellee filed a motion for contempt on child support, and a motion to increase child support. Appellant’s arrearage was $9,885.

On May 6, 1986, the parties entered into a settlement and release agreement whereby appellant agreed to pay $2,850 for past due payments, agreed to increase the amount of child support to $325 per month for a period of 18 months and, thereafter, in the sum of $350 per month, until the child reached the age of 18 years or was emancipated. In return, appellee was to [528]*528dismiss her contempt action against appellant. Appellant contends this agreement was approved by the trial court on May 13, 1986. On May 13, 1986, the trial court entered an order entitled “agreed order modifying prior order,” signed by Williams’ and Patton’s respective attorneys, agreeing as to “form only,” and an order to dismiss the contempt action. The modifying order increased the monthly child support payments; however, it did not reference the settlement agreement or acknowledge its existence in any manner. No one has challenged the court’s entry of an “automatic increase” in child support payments, and, thus, this Court will not consider whether that portion of the trial court’s order is valid. The settlement agreement is found as an exhibit in the statement of facts.

The child moved into appellant’s home in November 1987, and appellant discontinued making child support payments the following month. On June 10, 1988, the child left appellant’s residence and moved in with her boyfriend. In August 1988, appellee filed contempt proceedings against appellant. Appellant filed a motion to modify his support obligation and an original petition for breach of the settlement and release agreement. The appellee filed a cross-action on the breach of the settlement agreement.

After hearing all pending motions and arguments, the court found that the settlement and release agreement executed by the parties is void because: (1) it is against public policy; (2) the parties cannot reduce the amount of child support arrearage; (3) there was no court approval of the agreement; and (4) there was no consideration for the agreement. The court denied appellant’s motion to modify and entered a take-nothing judgment on both appellant’s and appellee’s breach of contract actions.

In his first two points of error, appellant challenges the trial court’s conclusion that the settlement and release agreement is void and unenforceable.

The settlement and release agreement entered into between the parties states in relevant part:

[I]n consideration of the payment of the sum of $2,850.00 by HOUSON D. WILLIAMS, JR. to SHERRY YVONNE (WILLIAMS) BAILES, payable in full upon the execution of this agreement, and for the further consideration of the agreement of HOUSON D. WILLIAMS, JR. to an Agreed Order Modifying Prior Order whereby the Decree of Divorce of December 2, 1974, shall be modified in certain respects, including increasing the support payment by HOUSON D. WILLIAMS, JR. for the use, benefit and support of AMY DIANE WILLIAMS to the amount of $325.00 per month for eighteen (18) months ... and thereafter in the amount of $350.00 per month until the said child reaches the age of eighteen (18) years ... SHERRY YVONNE (WILLIAMS) BAILES does hereby RELEASE AND DISCHARGE HOUSON D. WILLIAMS, JR. ... of and from any and all claims, demands, damages, actions, causes of action ... arising from the obligation of HOUSON D. WILLIAMS, JR. for the payment of child support ... for the period from and after December 2, 1974 to March 31, 1986.

Parents of minor children in Texas do not have the right or the power to agree to a modification of a court decree for future child support without court approval. In re McLemore, 515 S.W.2d 356, 357 (Tex.Civ.App.-Dallas 1974, no writ); see also McIntyre v. McFarland, 529 S.W.2d 857, 859 (Tex.Civ.App.-Tyler 1975, no writ).

Appellant does not challenge the rule of law that divorced parents may not modify the future support obligation of the noncustodial spouse without court approval. However, appellant asserts that Texas should follow the “majority” of other states that uphold settlement and release agreements between former spouses for accrued child support. See, e.g., Andersen v. Andersen, 89 Idaho 551, 407 P.2d 304, 307 (1965); Brannock v. Brannock, 104 N.M. 416, 722 P.2d 667, 670 (N.M.Ct.App.1985), aff'd, 104 N.M. 385, 722 P.2d 636 (N.M.1986); Miller v. Miller, 29 Or.App. 723, 565 P.2d 382, 385 (Oregon Ct.App.1977); Hartman v. Smith, 100 Wash.2d 766, 674 P.2d 176, 178 (1984). The out-of-[529]*529state cases cited by appellant treat delinquent support payments as a debt owed to the managing conservator because she has already used her own funds to pay for the support of the children, and provide that a former wife may, for sufficient consideration, release the former husband from the obligation to make support payments previously owing.

We note that the Supreme Court of. Texas has stated that it does not agree with the characterization of unpaid child support as a debt prior to its reduction to judgment. Adair v. Martin, 595 S.W.2d 513, 515 (Tex.1980).1 It has not determined whether or not, on reduction to final judgment under Tex.Fam.Code Ann. § 14.41(a) (Vernon Supp.1990), the arrearages may then be classified as a debt, even though the judgment may be enforced in any manner provided by law.

Sectlon 14.41(a) of the Texas Family Code provides that periodic child support payments not timely made constitute a “final judgment.”2 However, the court, on motion under this section, was required to confirm this “final judgment” as to the amount of arrearage, and in doing so, had to consider offsets as provided by Tex.Fam. Code Ann. § 14.41(c) (Vernon 1986), but could not reduce or modify the amount of the child support arrearage in its confirmation of this “final judgment.” Tex.Fam. Code Ann. § 14.41(d) (Vernon 1986).3

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Williams v. Patton
796 S.W.2d 526 (Court of Appeals of Texas, 1990)

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Bluebook (online)
796 S.W.2d 526, 1990 Tex. App. LEXIS 2076, 1990 WL 119646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-patton-texapp-1990.