Appeal from the County Court at Law No. 1 Galveston County,
Texas Trial Court Case No. 08FD2780
consists of Chief Justice Radack and Justices Keyes and
RADACK CHIEF JUSTICE.
Julie Lowery, appeals the trial court's order that
terminated spousal maintenance in favor of appellee, Houston
Ford Lowery III. In three issues, Julie argues that (1) the
trial court erred in terminating spousal maintenance and (2)
Houston's motion to clarify amounted to a collateral
attack on the divorce decree.
and Houston entered into an agreed decree of divorce on July
7, 2009. As part of the divorce decree, Houston agreed to
provide $1, 600 in spousal maintenance per month to Julie
until the first occurrence of either Julie's death,
Houston's death, Julie's remarriage, or further order
of the court affecting the spousal maintenance obligation,
including a finding of cohabitation by Julie with another
person in a permanent place of abode on a continuing conjugal
basis. On the same day, the trial court entered an
income-withholding order for spousal maintenance. The record
does not indicate that either party filed an appeal of the
2009 divorce decree.
four years later, on October 29, 2014, Houston filed an
original petition to modify his spousal maintenance
obligation on the ground that the obligation did not
terminate in accordance with section 8.054(a)(1) of the Texas
Family Code, which provides that the court may not order
maintenance that remains in effect for more than three years
after the date of the order. He alternatively argued
that if the trial court did not modify the termination date
of the income-withholding order for spousal maintenance, then
the income-withholding order for spousal maintenance should
be terminated, as the obligation is contractual alimony and
not subject to wage withholding. Julie filed an answer
stating that Chapter 8 of the Texas Family Code does not
require an end date for spousal maintenance.
August 20, 2015, Houston filed a motion for judgment nunc pro
tunc, asserting that the agreed divorce decree had a
discrepancy between the judgment signed and the judgment the
court intended to sign. Houston stated that, in their
February 27, 2009 mediation agreement, the parties agreed
that spousal maintenance would be "in accordance with
the Family Code." Houston further stated that the agreed
divorce decree "failed to include the alternate
termination date of [Houston's] obligation after
thirty-six months on March 12, 2012." The mediation
agreement was not incorporated into the decree.
Houston began missing payments starting on August 14, 2015,
Julie petitioned for enforcement of spousal maintenance,
asking that Houston pay spousal maintenance or be held in
contempt. Julie also requested that if the trial court found
that any part of the order was not specific enough to be
enforced by contempt, it should enter a clarifying order.
November 10, 2015, Houston filed an amended motion for
clarification of the final decree of divorce, arguing that
the divorce decree "may not be specific enough to be
enforceable by contempt and request[ing] that, if the Court
so finds, the Court construe and clarify the terms of its
prior order to make specific: the termination date of payment
of spousal support."
hearing on the motion to clarify, Houston's counsel
tendered to the trial court the original mediation agreement,
which states that spousal maintenance (in accordance with the
family code) will be paid to Julie at $1, 600 per month. The
mediation agreement did not provide a specific termination
date, but it did allow for a wage withholding order. Unlike
the agreed decree of divorce, the mediation agreement did not
state that it ended upon the death of either party or
Julie's remarriage. Julie's counsel objected to the
relevance of the mediation agreement and argued that the
trial court did not have plenary power to change the decree.
The trial court said that for purposes of the hearing, it
would take judicial notice of the entire clerk's file and
overruled Julie's objection. Julie's counsel argued
that the parties agreed to the spousal maintenance obligation
and that the divorce decree did include a final date for
payment. Houston's counsel agreed that spousal
maintenance was "part of the parties' agreement
where Mr. Lowery understood that his
post-divorce-post-marriage maintenance support obligation
would be limited by the terms with accordance to the Family
Code." The trial court stated that "whether
it's an agreed decree or not, once the Judge signs the
decree, it's an order. So, for the purposes of being an
order, it is that. However, it looks like it's an order
that is in conflict with the statute at the time."
Julie's counsel responded that Houston's arguments
were a "collateral attack on this order. . . ."
January 15, 2016 order, the trial court found that "the
language in the 'Post-Divorce Maintenance' section .
. . of the Final Decree of Divorce is contrary to the
applicable statute at the time of the commencement of the
proceedings, specifically section 8.054 of the Texas Family
Code." The trial court further found that "the
language in the 'Post-Divorce Maintenance' section .
. . of the Final Decree of Divorce is not enforceable by
contempt and may be enforceable as a contract." The
trial court concluded that the maintenance obligation
terminated by operation of law after thirty-six months on
March 12, 2012. Julie appeals the trial court's order.
third issue on appeal, Julie argues that Houston's motion
to clarify the terms of the spousal maintenance obligation
amounted to a collateral attack on the divorce decree.
Houston responds that the divorce decree provides for spousal
maintenance in accordance with Chapter 8 of the Texas Family
Code which, in 2009, provided that spousal maintenance could
only last for three years.