467 S.W.3d 688
Tex. App.2015Background
- John and Gail divorced in 1998; their decree incorporated a written agreement requiring John to pay Gail $1,500/month contractual alimony for life (terminable on remarriage), binding his estate if he predeceased her.
- In 2003 John successfully sought a modification reducing payments to $1,250/month; the court denied termination of the contractual alimony and that order was not appealed.
- In 2012 John filed a second petition to modify, asserting (1) a Family Code-based modification (material and substantial change of circumstances) and (2) multiple contract-based theories to void or terminate the contractual alimony (lack of consideration, unconscionability, undue influence, duress, extrinsic fraud, mistake, and frustration of purpose).
- Gail filed a plea to the jurisdiction and traditional and no-evidence summary-judgment motions, but her summary-judgment motions addressed only the Contract Claim (not the Family Code Claim); the plea argued the Family Code does not apply to contractual alimony.
- The trial court sustained Gail’s evidentiary objections, granted her motions, and entered a final judgment dismissing John’s petition in full; John appealed.
Issues
| Issue | Plaintiff's Argument (Philips) | Defendant's Argument (McNease) | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction/finality of judgment and whether trial court erred by dismissing the Family Code claim | John: judgment improperly disposes of Family Code claim though Gail did not move on that ground; plea to jurisdiction was not ruled on | Gail: judgment is final and plea/merits justified because Family Code does not govern contractual alimony | Court: Judgment is final for appeal; but summary judgment erroneously disposed of the Family Code claim (no summary-judgment grounds invoked), so that portion is reversed and remanded for adjudication |
| No-evidence challenge re: frustration of purpose (contract excuse) | John: his changed finances and Gail’s improved resources render performance impossible or commercially impracticable | Gail: no evidence that performance is impossible; hardship alone insufficient | Court: no evidence of impossibility; frustration of purpose fails as a matter of law; no-evidence summary judgment affirmed |
| Traditional-summary-judgment: res judicata and other contract defenses (lack of consideration, unconscionability, undue influence, duress, fraud, mistake) | John: some defenses might not have been available or compulsory in first modification; factual disputes exist | Gail: res judicata bars defenses that were or could have been raised in prior modification; attached prior pleadings/judgment support this | Court: res judicata conclusively bars lack-of-consideration and unconscionability claims and bars other formation-related claims that could have been raised earlier; traditional summary judgment on these defenses affirmed |
| Public-policy challenge to perpetual contractual alimony | John: perpetual alimony and lack of pre-decree writing violate public policy | Gail: contract terms govern; parties freely negotiated; decree is enforceable | Court: contractual perpetual alimony is not against public policy; issue rejected |
Key Cases Cited
- Guajardo v. Conwell, 46 S.W.3d 862 (Tex. 2001) (finality/interlocutory appeal principles)
- Lentino v. Frost Nat’l Bank, 159 S.W.3d 651 (Tex. App.—Houston [14th Dist.] 2003) (appeal jurisdiction finality)
- Lehmann v. Har-Conn Corp., 39 S.W.3d 191 (Tex. 2001) (when a judgment is final for appeal)
- McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) (trial court may not grant summary judgment on grounds not raised)
- Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (no-evidence summary-judgment framework)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for weighing evidence against no-evidence motion)
- Centex Corp. v. Dalton, 840 S.W.2d 952 (Tex. 1992) (impossibility/frustration of purpose standard)
- Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992) (res judicata applies to contract actions)
- Francis v. Francis, 412 S.W.2d 29 (Tex. 1967) (contractual support obligations generally enforceable and not per se against public policy)