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Lowery v. Lowery

Court of Appeals of Texas, First District

December 21, 2017

JULIE LOWERY, Appellant
v.
HOUSTON FORD LOWERY III, Appellee

         On Appeal from the County Court at Law No. 1 Galveston County, Texas Trial Court Case No. 08FD2780

          Panel consists of Chief Justice Radack and Justices Keyes and Massengale.

          MEMORANDUM OPINION

          SHERRY RADACK CHIEF JUSTICE.

         Appellant, 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.

         We reverse.

         Background

         Julie 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.

         Over 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.[1] 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.

         On 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.

         After 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.

         On 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."

         At the 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. . . ."

         In its 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.

         Motion to Clarify

         In her 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.[2]

         Standard ...


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