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Bolda v. Bolda

Court of Appeals of Texas, Second District, Fort Worth

August 28, 2019

Norbert Bolda, Appellant
v.
Clivaller Bolda, Appellee

          On Appeal from the 367th District Court Denton County, Texas Trial Court No. 15-10814-367

          Before Kerr, Birdwell, and Womack, JJ.

          MEMORANDUM OPINION

          DANA WOMACK, JUSTICE

         I. Introduction

         This 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.

         II. Background

         Norbert 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 underlined:

         THIS 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 LAW.
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 A CONTRACT.

         The MSA 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.

         On July 7, 2016, the trial court signed a final decree of divorce. With respect to the MSA, the final decree provided as follows:

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 instances.

         The 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.[1] 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.[2]

         Subsequently, 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.

         On May 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.

         The 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.[3] 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.

         Another 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.

         On 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.

         Clivaller testified that her current job managing an RV/mobile home park allows her to live at the park by paying less than "full rent."[4] 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.

         After both parties rested, the trial court asked Norbert and Clivaller some clarifying questions about their medical disabilities:

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 ...

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