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Burkett v. Burkett

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

July 25, 2019

ZINA BURKETT, Appellant,
v.
JASON A. BURKETT, Appellee.

          On appeal from the 430th District Court of Hidalgo County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Hinojosa

          MEMORANDUM OPINION

          DORI CONTRERAS CHIEF JUSTICE

         This is an appeal of a judgment rendered to enforce the provisions of a divorce decree and settlement agreement. Appellant/cross-appellee Zina Burkett raises three issues, arguing principally that the trial court erred by modifying an earlier enforcement order after it had lost plenary power. Appellee/cross-appellant Jason A. Burkett raises six issues, contending that various aspects of the trial court's order were erroneous. We affirm in part and reverse and remand in part.

         I. Background

         The parties were married in 1996 and had two sons, born in 1998 and 2000. Zina filed for divorce in 2011, and the parties signed an "Agreement Incident to Divorce" (AID) in December of that year. The AID provided in part that Jason will pay $860, 000 to Zina to equalize the just and right division of property[1] and that, when Jason sells his McAllen dental practice, the net proceeds of the sale shall be divided equally between the parties. It further stated that Jason will pay Zina $8, 000 per month for thirty-six months as alimony, beginning on the fifteenth day of the first month following the closing of the sale of the parties' residence.[2] The AID did not contain any agreement regarding child support.

         After a hearing on December 12, 2011, the trial court rendered a final divorce decree which incorporated the AID by reference.[3] The decree also contained a standard possession order for the parties' access to the children, and it required Jason to pay monthly child support and medical expenses to Zina.[4] Both parties signed the decree under a statement indicating that they approved and consented to its form and substance, and neither party appealed the decree.

         Zina moved to enforce the decree in 2015. Following a mediation, the parties and their attorneys executed a settlement agreement (MSA) on June 13, 2016, which stated that the parties had reached an "agreement for enforcement" which was attached as an exhibit to the MSA. Exhibit A to the MSA stated in its entirety as follows:

Agreement for Enforcement of Child Support Arrearage satisfies the Alimony, Arrearage and Property Division Arrearage.
The parties agree to the following:
1. [Jason] agrees to pay [Zina] the sum of $760, 000.00 incurring 4 ½ percent interest on any unpaid balance in child support arrearage until paid in full as follows:
a. $5, 500.00 commencing July 1, 2016 thru December 1, 2016
b. $6[, ]000.00 from January 1, 2017 thru June 1, 2017
c. $6, 500.00 from July 1, 2017 thru December 31, 2017
d. $7, 500.00 from January 1, 2018 until paid in full.
2. The Judgment shall be secured with a lien and deed of trust on the office buildings [used for Jason's dental practice and the parties' South Padre Island condominium]
3. Contractual Alimony in the amount of $125, 000.00 which shall be paid at the rate of $1[, ]000.00 at (0) percent interest. Said payment is incorporated in the payment schedule above.
4. Health Insurance: Husband to reimburse wife $140.84 per month commencing July 1, 2016 and on the 1st of each month thereafter until the youngest child emancipates in accordance with the decree.
Save and except any property in which the IRS has a lien on the property, if a property is sold the net proceeds shall be paid toward[]s the child support arrearage owed in this agreement.
All other provisions of the decree or incident to divorce [sic] remain in full force and effect.
Zina subsequently moved the trial court to enter judgment on the MSA. After a hearing on August 31, 2016, at which only Zina and her attorney appeared, the trial court rendered a judgment (the 2016 Order) stating in relevant part as follows:
Agreement of Parties
The Court finds that the parties have entered into a written agreement as contained in this order by virtue of having approved this order as to both form and substance. To the extent permitted by law, the parties stipulate the agreement is enforceable as a contract. The Court approves the agreement of the parties as contained in this "Order".
Merger of Settlement Agreement
The agreements in this "ORDER" were reached in mediation. This "Order" is stipulated to represent a merger of a [MSA] between the parties. To the extent there exist any differences between the [MSA] and this "Order", this "Order" shall control in all instances.
Findings
The Court finds that on December 12, 2011, the court rendered and signed the Final Decree of Divorce on January 4, 2012 [sic] and was ordered to make a payment of child support [sic] in Cause No. CAUSE NO. [sic] F-132-11-J . . . in the 430TH JUDICIAL DISTRICT Hidalgo County, Texas, and states in relevant part as follows [sic]:
[recites child support provisions from MSA as set forth above]
The Court further finds that [Jason] has failed to comply with the provisions of the [decree] as follows. The court finds and confirms that the balance owed by [Jason] on previously confirmed child support arrearage and the property division that [Jason] failed to pay. The parties agreed to modify the terms of the property division and include it as child support arrearage as set forth below.
The court find[]s by agreement that the child support arrearage is $760, 000.00. The court further finds that [Jason] is in arrears tin [sic] the amount of $[]760, 000.00 for the period February 1, 2012 for all monies due and owing pertaining to child support and property division payments which are now confirmed as child support arrearage.
Judgment should b[e] awarded against [Jason] in the total amount of $760, 000, 00 for the child support arrerarge [sic] and interest by agreement of the parties.
Judgment
IT IS ORDERED that [Zina] is granted a cumulative judgment for child support arrearages, including accrued interest, against [Jason] of $760, 000.00 dollars such judgment bearing interest as 4.5% percent simple interest per year form [sic] the date of the date of [sic] the mediation agreement on June 13, 2016. The debt is cumulative and includes the unpaid balance owed under the prior orders of the Court except for the contractual alimony in Cause No. NO. [sic] F-132-11-J . . .in the 430TH JUDICIAL DISTRICT Hidalgo County, Texas, dated December 21, 2011.
IT IS ORDERED THAT [Jason] SHALL pay [Zina] the sum of Seven hundred and sixty thousand ($760, 000.00) at 4 ½ % percent interest on any unpaid balance on child support arrearage until paid in full as follows:
a. $5, 500.00 commencing July 1, 2016 thru Decem[]ber 1, 2016
b. $6, 000.00 from January 1, 2017[ ]thru June 1, 2017
c. $6, 500.00 from July 1, 2017 thru December 31, 2017
d. $7, 500.00 from January 1, 2018 until paid in full
Special Provision: $1[, ]000.00 dollars of each of these payments that are made in full shall be credited towards the contractual alimony payment.
The Judgement shall be secured with a lien and deed of trust on the office building[s used for Jason's dental practice and the parties' South Padre Island condominium]
Contractual Alimony
Contractual Alimony in the amount of $125, 000.00 which shall be paid at the rate of $1000.00 per month commencing July 1, 2016 and the 1st of each month thereafter at (0) percent interest until paid in full. Said payment is incorporated ...

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