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Thompson v. Thompson

Court of Appeals of Texas, Fifth District, Dallas

June 30, 2017

LARRY THOMPSON, Appellant
v.
LAUREN NICOLE THOMPSON, Appellee

         On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. 03-0782

          Before Justices Lang, Brown, and Whitehill.

          MEMORANDUM OPINION

          ADA BROWN JUSTICE

         Husband appeals a judgment in favor of Wife for $834, 700 in unpaid contractual alimony. In three issues, Husband generally contends (1) the trial court abused its discretion in modifying its judgment, (2) the alimony provision violated the Texas Family Code, and (3) the evidence is legally and factually insufficient to support the award of attorney's fees. For the following reasons, we affirm.

         In 2003, the trial court signed a final divorce decree. In the decree, the trial court awarded Wife "[t]he sum of $9, 000.00 per month as and for spousal support/alimony/separate maintenance" from Husband for a period of ten years. It is undisputed that the alimony was contractually agreed upon and that neither party appealed the decree.

         Husband initially made alimony payments to Wife, but stopped several years before he satisfied the award. In 2015, after all of the alimony payments had become due and payable, Wife notified Husband she intended to seek enforcement of the decree. Husband filed a preemptive "Motion for Clarification and for Declaratory Judgment" seeking a declaration that the alimony award was not enforceable and/or barred by limitations. Wife responded with a petition for enforcement requesting a judgment in the amount of $834, 700 for past due alimony payments and attorney's fees.

         On October 21, 2015, following a bench trial, the trial court signed two separate and seemingly inconsistent orders. Specifically, the trial court denied both Husband's request to declare the alimony award unenforceable and Wife's petition to enforce the award. As a result, both Husband and Wife filed motions for new trial. In his motion, Husband reiterated his claim the alimony provision was unenforceable. In her motion, Wife asserted the trial court's failure to enter a judgment in her favor was inconsistent with its denial of Husband's motion.

         Wife also requested findings of fact and conclusions of law. On November 24, 2015, before ruling on the motions for new trial, the trial court made findings that would support a judgment in favor of Wife. On December 21, 2015, while it still retained plenary jurisdiction, the trial court signed a final judgment in her favor. Husband appeals.

         In his first issue, Husband contends the trial court abused its discretion in rendering judgment in favor of Wife after it denied her petition for enforcement.

         Husband relies on In re Brookshire Grocery Company, 250 S.W.3d 66 (2008) for the proposition that the trial court was not permitted to alter its judgment because Wife filed a "motion for new trial" not a motion to modify. Brookshire is inapposite. The issue in that case was whether the trial court had plenary jurisdiction when it granted Brookshire's second motion for new trial. Id. at 68. Here, it is undisputed the trial court had plenary jurisdiction when it signed the judgment in favor of Wife. It is well settled that a trial court has the inherent power to alter its judgment during its plenary jurisdiction even if it has not been requested to do so. See Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); A. F. Jones & Sons v. Republic Supply Co., 246 S.W.2d 853, 855 (Tex. 1952). Brookshire did not hold otherwise.

         In the alternative, Husband contends the trial court abused its discretion in modifying its judgment because the evidence is legally and factually insufficient to show he owed Wife $834, 700 in unpaid alimony. In evaluating a legal sufficiency challenge, we credit evidence that supports a finding if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In a factual sufficiency review, we examine all the evidence in the record, both supporting and contrary to the trial court's finding, and reverse only if the finding is so against the great weight of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 382-83 (Tex. App.- Dallas 2013, no pet.). When reviewing both the legal and factual sufficiency of the evidence, we are mindful the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Helping Hands Home Care, Inc. v. Home Health of Tarrant Cty, Inc., 393 S.W.3d 492, 505-06 (Tex. App.-Dallas 2013, pet. denied).

         Under the terms of the 2003 decree, Husband was required to pay Wife $9, 000 per month for a period of ten years. Thus, as of the time of the hearing on Wife's petition for enforcement, Husband should have paid her a total of $1, 080, 000. However, Wife testified that Husband stopped making payments to her in March 2006, that he made a total of $245, 500 in payments, and that $834, 700 remained due and owing.

         Husband testified and claimed he made payments into 2009. He said he also prepared a spreadsheet to show the dates and amounts paid. That spreadsheet was admitted into evidence as a "summary" of Husband's testimony. Husband did not present any documentary evidence to show he made those or any other payments.

         According to Husband, the trial court failed to "take into account" payments his spreadsheet shows he made. However, Wife denied Husband made those payments. The trial court, as trier of fact, was free to believe Wife's testimony and disbelieve both Husband's ...


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