Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 59th Judicial District Court Grayson County,
Texas Trial Court Cause No. 03-0782
Justices Lang, Brown, and Whitehill.
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.
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.
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.
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.
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.
first issue, Husband contends the trial court abused its
discretion in rendering judgment in favor of Wife after it
denied her petition for enforcement.
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.
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).
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.
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.
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 ...