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Johnson v. Ventling

Court of Appeals of Texas, Thirteenth District, Corpus Christi - Edinburg

December 19, 2013


Page 93

On appeal from the 94th District Court of Nueces County, Texas.

For Appellant: Hon. Bernard L. Shub Jr., Attorney at Law, San Antonio, TX.

For Appellee: Hon. William A. Dudley, Attorney at Law, Corpus Christi, TX; Hon. Audrey Mullert Vicknair, Attorney at Law, Corpus, Christi, TX.

Before Justices Rodriguez, Garza and Perkes. Memorandum Opinion on Rehearing by Justice Garza.

Page 94



We issued our original memorandum opinion in this cause on March 7, 2013 and a substitute memorandum opinion on June 27, 2013. Both parties to the appeal have moved for rehearing.[1] We grant the motions

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for rehearing in part and deny them in part, withdraw our previous substitute memorandum opinion and judgment and issue the following memorandum opinion and accompanying judgment in their place.

For the third time in nine years, appellant Patricia M. Johnson[2] seeks this Court's assistance in her ongoing efforts to enforce contractual alimony obligations agreed to by her purported ex-husband, appellee Wayne Ventling. In this proceeding, Johnson contends that the trial court erred in its award of interest, attorney's fees, and court costs. We affirm in part, reverse and render in part, and reverse and remand in part.

I. Background

Johnson and Ventling cohabited from 1982 to 1995. In 1995, upon being advised by his attorney that a common-law marriage existed, Ventling filed for divorce. The parties agreed on the terms of a final decree, including a provision that Ventling pay Johnson alimony of $2,500 per month for 84 months. The agreed divorce decree was rendered on April 13, 1995.

Two years after the decree was entered, Ventling stopped making the monthly alimony payments. Johnson moved for enforcement, and Ventling responded by alleging that the contractual alimony obligation was void because the parties had, in fact, never been married. Ventling contended that he had been duped by Johnson into believing that a marriage had existed; he further claimed that the trial court retained plenary jurisdiction to vacate the divorce decree because, since there was never any marriage to dissolve, the April 13, 1995 judgment was interlocutory in nature. The trial court agreed with Ventling and vacated the divorce decree, but we held that the trial court's ruling was void. Johnson v. Ventling, 132 S.W.3d 173, 179 (Tex.App.--Corpus Christi 2004, no pet.) ( Johnson I ). We concluded that the divorce decree was " regular on its face" and not void, and that Ventling's challenge to the enforceability of the decree therefore amounted to an impermissible collateral attack. Id. at 178-79.

On remand, the trial court rendered summary judgment denying Johnson's motion for enforcement of the alimony obligations. The trial court, noting that Johnson had by then stipulated to the fact that the parties had never been married,[3] concluded that the alimony provisions in the 1995 decree were unenforceable " because alimony, as defined in 26 United States Code [section] 71, requires the existence of a marriage." Again, we reversed. Johnson v. Ventling, No. 13-09-00563-CV, 2010 WL 4156459, at *6-7 (Tex.App.--Corpus Christi Oct. 21, 2010, no pet.) (mem. op. on reh'g) ( Johnson II ). We held that our conclusion in Johnson I --i.e., that the 1995 decree was not void--was the law of the case and contradicted the judgment on appeal. Id. at *6. We noted that we could locate no persuasive authority indicating that contractual alimony is unenforceable

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for lack of consideration if the parties were never married. Id. at *7. We further held that the parties' stipulation as to the lack of a marital estate was immaterial because " contractual alimony, if awarded, is not part of the 'just and right' division of the marital estate in a divorce proceeding." Id. Additionally, we noted that Ventling's affirmative defenses to enforcement of the alimony provision--including his claim that he was defrauded by Johnson into agreeing to a divorce--were unavailable to him because such defenses may only be raised by petition for bill of review. Id. n.9 (citing Tex. R. Civ. P. 329b(f)). In conclusion, we directed the trial court to

grant Johnson's motion for enforcement and to award her: (1) $142,500 in unpaid contractual alimony; (2) appropriate prejudgment interest, see Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998) (permitting the award of prejudgment interest based on general principles of equity); (3) reasonable attorney's fees; and (4) costs of court.


On remand, Johnson filed a motion asking the trial court to enforce our ruling in Johnson II.[4] In the motion, Johnson contended that she was " entitled to judgment on December 19, 1997" and that, therefore, the pre- and postjudgment interest amounts should be calculated as of that date. Accordingly, she requested that the trial court award her the total sum of $769,746.80, representing: (1) $142,500 in damages; (2) $3,435.62 in prejudgment interest; (3) $366,438.48 in postjudgment interest, at 10% compounded annually, see Tex. Fin. Code Ann. § 304.006 (West 2006); (4) $250,402.09 in attorney's fees incurred since 1997, including fees for two trials and two appeals to this Court[5]; and (5) $6,970.61 in court costs. In response, Ventling argued that postjudgment interest was unavailable to Johnson because our opinion in Johnson II permitted only the recovery of prejudgment interest. Ventling further contended that the amount of reasonable and necessary attorney's fees that should be awarded to Johnson is $15,000.

The trial court, after a hearing, rendered judgment on February 21, 2012 awarding Johnson: (1) $142,500 in contractual alimony; (2) $3,435.62 in prejudgment interest; (3) $70,275 in attorney's fees; and (4) $20 in court costs. The judgment provided that " [p]ostjudgment interest at the rate of 6% will accrue on the total amount awarded in this Judgment, from the date of its entry." An amended judgment was then rendered on March 21, 2012, setting the postjudgment interest rate at 5%. Johnson filed motions for reconsideration, to modify the judgment, and for findings of fact and conclusions of law, none of which the trial court ruled upon. See Tex. R. Civ. P. 329b(c) (providing that a motion for new trial or to correct or modify a judgment is overruled by operation of law after 75 days). This appeal followed.

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II. Discussion

By three issues on appeal, Johnson contends that the trial court's judgment was erroneous in its award of (1) interest on the damages award, (2) attorney's fees, and (3) court costs. We will address each element of the judgment in turn.

A. Judgment Interest

1. Standard of Review

We review a trial court's award of prejudgment interest under an abuse of discretion standard. Morales v. Morales, 98 S.W.3d 343, 348 (Tex.App.--Corpus Christi 2003, pet. denied); see Sw. Grain Co. v. Pilgrim's Pride S.A. de C.V., No. 13-07-00557-CV, 2010 WL 2638483, at *6 (Tex.App.--Corpus Christi June 28, 2010, pet. denied) (mem. op.). To determine if there was an abuse of discretion, we must decide if the lower court acted arbitrarily, unreasonably, or without reference to any guiding rules or ...

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