Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 367th District Court Denton County, Texas
Trial Court No. 15-10814-367
Kerr, Birdwell, and Womack, JJ.
appeal is taken from the trial court's order denying
Appellant Norbert Bolda's petition to modify or terminate
a spousal-maintenance order, which requires Norbert to, inter
alia, pay his ex-wife, Appellee Clivaller Bolda, $1, 600 each
month. Norbert raises two issues, contending that the trial
court abused its discretion because there was insufficient
evidence to support the trial court's finding that no
material and substantial change had occurred since the
divorce decree and asserting that the trial court erred by
failing to modify the amount of spousal maintenance because
it exceeded the statutory cap based on Norbert's current
gross monthly income. We will affirm.
filed an original petition for divorce at the end of 2015. In
May 2016, Norbert and Clivaller entered into a mediated
settlement agreement (MSA). The MSA was filed and appears in
the clerk's record. Its third section contains the
following provision in all capital letters, bolded, and
AGREEMENT IS NOT SUBJECT TO REVOCATION:
THIS AGREEMENT SHALL BE BINDING ON THE PARTIES
AND SHALL NOT BE
SUBJECT TO REVOCATION. THE PARTIES SHALL BE
ENTITLED TO A JUDGMENT ON THE
MEDIATED SETTLEMENT AGREEMENT NOTWITHSTANDING
RULE 11, TEXAS RULES OF CIVIL PROCEDURE OR ANY OTHER RULE OF
EACH PARTY SPECIFICALLY STIPULATES AND AGREES THAT THEY
HAVE ENTERED INTO THIS AGREEMENT FREELY AND VOLUNTARILY. THIS
AGREEMENT IS NOT SUBJECT TO REVOCATION AND IS ENFORCEABLE AS
contained the following relevant stipulations:
Wife is awarded $130, 000 from Husband's 401k savings
plan . . . [;]
Husband is awarded the balance of the 401k savings plan . . .
Husband agrees to carry a life insurance policy in the amount
of $100, 000 with Wife as a beneficiary for so long as he is
obligated to pay spousal maintenance[; and]
Husband agrees to pay spousal maintenance, pursuant to
Chapter 8 of the Texas Family Code, Section 8.051(2)(A), in
the amount of $1[, ]600 per month for a period of 10 years
with the first payment due on September 1, 2016. Payments
will be the subject of wage withholding.
7, 2016, the trial court signed a final decree of divorce.
With respect to the MSA, the final decree provided as
The agreements in this Final Decree of Divorce were reached
in mediation with [Mediator] on May 27, 2016. This Final
Decree of Divorce is stipulated to represent a merger of a[n]
[MSA] between the parties. To the extent there exist any
differences between the [MSA] and this Final Decree of
Divorce, this Final Decree of Divorce shall control in all
final decree included a finding that Clivaller was entitled
to court-ordered spousal maintenance pursuant to section
8.051(2)(A) of the family code. The final decree ordered Norbert
to make monthly payments to Clivaller of $1, 600 for 120
months, totaling $192, 000. Norbert was also ordered to
maintain a $100, 000 life insurance policy for as long as he
is obligated to pay spousal maintenance.
Norbert filed a suit to enforce the property division, in
which he alleged that Clivaller had altered the condition of
the parties' home in violation of the divorce decree. The
enforcement suit resulted in a $20, 000 judgment in favor of
Norbert with the judgment to be recovered by offsetting the
amount of Norbert's spousal maintenance obligation. Thus,
Norbert's monthly spousal maintenance payment was reduced
from $1, 600 to $600 for twenty months, with the $1, 600
monthly payments to resume on September 1, 2018.
11, 2018, Norbert filed a petition to modify or terminate the
spousal maintenance order. The case proceeded to a bench
trial where Norbert was represented by counsel and Clivaller
represented herself. Norbert testified that at the time of
the divorce decree, his salary was $145, 000 but that almost
immediately after the divorce, his position was eliminated
and he was out of work until September 2016, when he obtained
employment earning a yearly salary of $99, 000. Norbert
explained that his salary structure in his new job changed
from salary-based to commission- based, which required him to
look for another job. While Norbert averred that he did
obtain yet another job, the new position "included a lot
of labor to do the job as well as selling, and I just became
unable to do the -- the job at that time." Norbert
testified he currently did not have a job because "[m]y
body won't allow it." Norbert later explained that
he suffers from multifocal neuropathy with conduction block
syndrome, which is a progressive disease that will ultimately
confine him to a wheelchair.
evidence at the final hearing included a letter from the
Social Security Administration, dated August 29, 2018, which
stated that Norbert received $2, 497.50 per month in Social
Security benefits. Norbert testified that the Social Security
Administration found him to be disabled on February 6, 2017,
and that he began receiving benefits in September 2017.
According to Norbert, the $2, 497.50 per month is his only
source of income. He testified that he had no savings, no
medical insurance, and no dental insurance. Norbert explained
that his $142, 000 retirement account had been divided in the
divorce decree, with his ex-wife getting $130, 000 and
Norbert receiving $12, 000. Norbert testified that none of
the $12, 000 was left.
exhibit was a financial information statement, prepared by
Norbert, that listed his monthly living expenses-itemized for
housing, transportation, food, insurance, medical expenses,
personal expenses, and debt payments-totaling $2, 898. Based
on his monthly Social Security income and his monthly
expenses, Norbert testified that he does not have enough
money to pay his bills every month or to pay spousal support.
Norbert stated that he lives with his mother and that she is
his primary caregiver.
cross-examination, Norbert conceded that he had received $60,
000 in severance pay when he lost his job in 2016. Norbert
also acknowledged that although "it's more
progressive than it was at the time that we were
married," he has the same illness that he had at the
time of the original divorce decree.
testified that her current job managing an RV/mobile home
park allows her to live at the park by paying less than
"full rent." However, Clivaller also testified that she
does not have a job. Clivaller averred that she receives a
disability check from the government each month in the amount
of $706. Clivaller then testified that all of the money she
received in the divorce decree was spent on buying a house,
but that the house had been destroyed by Hurricane Harvey.
She then moved into a camper where she lived before her son
bought her a "little building." Clivaller explained
that the tiny house was unfinished and that her son died
before he could finish it out.
both parties rested, the trial court asked Norbert and
Clivaller some clarifying questions about their medical
THE COURT: (Overlapping) Okay. Tell it to me in one
sentence. Your disability is the lack of . . .
[NORBERT]: It's a muscle degenerative disease.
THE COURT: Okay. And what is your disability?
[CLIVALLER]: It was organic mental ...