*2 BASS, Before SAM DUNN MIRABAL, JJ.
OPINION BASS, Justice. SAM validity of a appeal This concerns the past release settlement and deny- an order and future child modify support, ing appellant’s motion to materially substantially based changed circumstances.
We affirm. Williams, appellant, and
Houson D. Sher- Patton, appellee, ry were divorced Yvonne Appellee was named on December Amy Diane managing conservator of pay Appellant was ordered to Williams. per Appel- month. of $121 pay lant did not through 1985. 15, 1985, appellee filed a
On October support, contempt on child motion for support. Appel- motion to increase $9,885. arrearage lant’s was into May entered On release where- settlement and $2,850 agreed past by appellant agreed increase the payments, per month $325 of child thereafter, and, 18 months for a month, until the in the sum of $350 years of 18 or was reached the return, emancipated. contempt
dismiss her
against appel- WILLIAMS,
action
JR.
Appellant
lant.
contends
(WILLIAMS) BAILES,
payable in full
approved by
the trial
May
court on
upon
agreement,
the execution of this
1986. On
the trial court
and for the further consideration of the
*3
entered an order
“agreed
entitled
order
agreement
WILLIAMS,
of HOUSON D.
modifying prior order,” signed by Williams’
Agreed
Modifying
JR. to
Order
Prior
respective
and Patton’s
attorneys, agreeing
whereby
Order
the Decree Divorce of
only,”
as
“form
and an
order
dismiss
December
shall
be modified
the contempt
modifying
action. The
order
respects, including increasing
certain
increased the monthly
support pay-
support
payment
by HOUSON D.
ments; however,
it did not reference the WILLIAMS,
use,
JR. for the
benefit and
agreement
acknowledge
settlement
or
its
support of AMY DIANE
WILLIAMS
any
existence in
manner. No one
chal-
per
the amount of $325.00
month for
lenged
entry
the court’s
of an “automatic
(18)
eighteen
months ... and thereafter
and,
increase” in
support payments,
the amount of
month until
$350.00
thus, this Court will not consider whether
eighteen
the said child
reaches
portion
that
of the trial
order
court’s
(18) years
...
agreement
valid. The settlement
is found
(WILLIAMS)
hereby
BAILES
RE-
does
as an
exhibit
statement
facts.
AND
LEASE
D.
DISCHARGE HOUSON
WILLIAMS,
JR. ... of and from
appellant’s
child moved into
home in
claims, demands,
actions,
damages,
1987,
all
appellant
November
discontinued
arising
causes of action ...
making
from the
payments
the follow-
WILLIAMS,
10,
obligation
ing
1988,
D.
month. On June
HOUSON
the child left
appellant’s
payment
JR. for the
of child
residence and
...
moved in
her
boyfriend.
1988,
August
for the
from and
appellee
after December
filed
2,
31,
contempt proceedings against appellant.
1974 to March
Appellant filed a
modify
sup-
motion to
Parents of minor
in Texas
children
port obligation
original petition
and an
do
right
power
agree
not have the
or the
agree-
breach of the settlement and release
to a
of a
modification
court decree for
ment. The
filed a cross-action on
future child
approv
without court
agreement.
the breach of the settlement
McLemore,
In re
356,
al.
515 S.W.2d
357
hearing
After
pending
all
motions and
(Tex.Civ.App.
writ);
see
no
- Dallas
arguments,
the court found that the settle-
McFarland,
McIntyre
also
v.
ment
release
executed
(Tex.Civ.App. Tyler
859
-
(1)
is void because:
it is
writ).
(2)
public policy;
cannot reduce
Appellant
challenge
does
not
rule
(3)
support arrearage;
modify
parents may
law that divorced
not
approval
agree-
there was no
of the
support obligation
of the non
future
ment;
there was no consideration
spouse
approval.
custodial
without court
agreement.
ap-
The court denied
However, appellant
that Texas
asserts
modify
pellant’s motion to
and entered a
“majority”
should follow the
of other
judgment on
take-nothing
appellant’s
both
uphold
states
settlement
release
appellee’s
breach of contract actions.
agreements
spouses
between former
error,
points
appellant
In his first two
See,
e.g.,
accrued support.
Andersen
challenges
trial
court’s conclusion that
Andersen,
v.
89
407
Idaho
P.2d
the settlement and release
Brannock,
(1965);
Brannock
307
104
void and unenforceable.
(N.M.Ct.App.1985),
N.M.
722
670
P.2d
The settlement and release
'd,
104 N.M.
2. Section reads as Sess., Called 1986 Tex.Gen. § 4. Ch. 2nd (a) Arrearages. Judgment periodic for A by, 1st § amended ch. Laws timely support child not shall made Sess., 86. Former Called 1989 Tex.Gen.Laws judgment a for constitute final the amount suit, 14.41(b), applicable to this read section owing. obligee On and the motion follows before the 1989 amendment: obligor, hearing, or after the court notice support shall of child confirm (b) may court not Time limitations. The judgment against an shall arrears and render support of child in ar- confirm the amount obligor any support child un- for amount of may judgment enter a for un- rears not owing. by paid judgment rendered payments paid that were due child may subject or the court to a counterclaim years owing than 10 before the more (c) by provided of this offset as Subsection judgment filing of to render under the motion judgment may section. The any be enforced jurisdiction court retains section. available means enforcement past-due judgment ob- enter judgments for debts. ligations a motion render if 14.41(c) (d) years read as follows: 3. Sections arrearages filed two after: within adult; (1) (c) or by Obligor. becomes an If the Possession Child (2) voluntarily the child managing relin- the date on which conservator has care, control, obligor pursuant quished obligation to the decree actual to the terminates possession by operation of a for a time of law. or order or periods posses- excess of the court-ordered 14.41(b), child, provides § The current version access the child sion of and support to the years. period of unabated until fur- a four order continues legislature It is evident that the only con a showing on abuse discretion. templated the supervision continued Williams, Williams S.W.2d arrearages though over they even (Tex.Civ.App. [14th Dist.] - Houston judgment.” Therefore, constituted “final writ). An abuse discretion occurs we hold that under Tex.Fam.Code Ann. when the trial court acts without reference 14.41(a), arrearages § re guiding principles of law. Downer main the supervision under of the court v. Aquamarine Operators, Inc., 701 may be modified denied, (Tex.1985), cert. (1) until the court either the unpaid reduces 476 U.S. 106 S.Ct. 90 L.Ed.2d judgment, written or (1986). jurisdiction loses after the child reaches September On appellant filed majority years or two date modify parent-child motion to relation- support obligation which terminat ship, seeking the order dated pursuant ed to the decree or order or May 13, Appellant pled that child operation of law. Former Tex.Fam.Code support payments previously ordered be 14.41(b). occurrences, Ann. After these altogether “reduced and ceased because could enter into a contract with *5 the child has to with Respon- ceased reside regard payment judgment to the of the for dent and is in emancipated.” fact The trial arrearages necessity without the of court findings court made no in support of fact approval. of its conclusion of law that the “Respon- case, In this the contract was en dent’s Motion Modify to should be denied.” tered into before the trial court reduced the question The of whether a child is unpaid judgment child to written “emancipated,” and thus to not entitled against appellant for the and support, by voluntarily leaving the owing 14.41(a). under the Because custody parents home of and her to live support arrearage still under remained the person, with an unrelated has not been court, supervision agreement, of the Appellee established Texas case law. attempts which modify Swor, relies on Laird v. arrearages, is void and unenforceable. writ) (Tex.App. no - Beaumont Points of error one and are over- two where the refused to consider court an ruled. 18-year-old child he “emancipated” after four, points appel- error three and moved from his mother’s home live with lant contends the trial court abused its and for aged care an relative. The instant denying appellant’s discretion motion to distinguishable. case readily Our facts modify because the uncontroverted evi- do clearly not fit within case law that does dence established as a matter of law that emancipated a minor consider once the minor child’s had circumstances materi- 602. child marries. See id. at There ally substantially changed. Appellant and a change been substantial circum argues implied trial also court’s parent-child relationship in the stances finding that no material and substantial agreed since date of the order change in minor child’s circumstances the ex-wife/managing Where contrary had occurred was so the over- longer furnishing is no conservator de whelming weight preponderance and gree to the minor of service child that she manifestly credible evidence as to be un- sup did time of the order at the on just. port, is itself a material and substan change in requiring tial circumstances
A trial court is accorded broad dis support obligations. reallocation La determining cretion in whether a movant Labowitz, establishing bowitz v. has met burden of his mate 1976, writ). (Tex.Civ.App. change rial and substantial in circum - Dallas remains, however, modification, question warrant whether it was stances to granting denying trial order or for the court’s abuse discretion trial requested deny appellant’s modification will be reversed motion eighteen obligations Judge 0. Bass the said child reaches this basis. emancipated, or appellant’s years denied motion on December is otherwise (WILLIAMS) before minor child five months SHERRY YVONNE officially emancipated. hereby AND turned 18 does RELEASE BAILES assistance, WILLIAMS, A child needs financial minor HOUSON D. DISCHARGE successors, heirs, not an for a JR., assigns, it is abuse discretion admin- his trial istrators, legal representatives court to force the former husband responsibility daughter’s claims, demands, for assume his and all and from months, action, actions, for an additional five damages, causes of or living boyfriend, she be with her equity any liability whether of whatso- suits in or mother, or or arising father. kind nature ever from WILLIAMS, HOUSON D. obligation of are Points of error three and four over- JR. ruled. use, AMY benefit is affirmed. WILLIAMS, DIANE a minor December MIRABAL, J., dissents. to March 197.4 MIRABAL, Justice, dissenting. (WILLIAMS) simultaneously respectfully
I these dissent. BAILES hereby presents does authorize di- decree, In the December 1974 divorce attorney to execute and deliver rect her was ordered to $121.00 may entry such instruments as support. By month in child October *6 necessary to dismissal of the Mo- obtain arrearage appellant up had built an of pay to Contempt tion for for failure $9,885.00, appellee and moved con- mentioned, prejudice support above tempt. May and 1986 “Settlement to refiling her ever same for parties Release” between the period claim part: recites 197j and March December between WHEREAS, understand 31, 1986, taxing the costs of the agree that the claims asserted be- against filing said the said of Motion disputed them are doubtful and tween (WILLIAMS) SHERRY YVONNE by disputes and have settled such com- BAILES. promise litigation buy to to avoid added.) (Emphasis peace; NOW, THEREFORE, in consideration “Agreed an Order The trial court entered $2,850.00 payment of of the sum of Order,” and dismissed the Modifying Prior WILLIAMS, D. JR. HOUSON action, contempt in accordance with (WILLIAMS) parties’ agreement. BAILES, payable in full the execu- upon agreed a pay- Effectively, fur- agreement, tion and for the arrearage period over out of the accrued of the ther consideration months; pay- of the of 36 the sum total WILLIAMS, D. JR. HOUSON total agreed approximates ments Prior Order Agreed Modifying Order arrearage to the added amount whereby the Decree of Divorce of De- per month child normal $121.00 2, 1974 in cer- cember shall modified payments. including increasing the respects, tain appellant made the It uncontested that HOUSON D. 1987; WILLIAMS, use, agreed-on payments until November JR. for the benefit and taking into account accordingly, DIANE support AMY WILLIAMS $2,850.00 by appellant the time the paid at per month for the amount of $325.00 paid he signed, after the settlement eighteen months $6,630.00 arrearage on the in a and thereafter total day April, 1st per through month until October of $350.00 the amount In August appellee filed a Motion OF CONCLUSIONS LAW Contempt alleging only appel- lant had per failed to $350 make month agree- 2. The settlement and release payments since November but also ment executed is void for had sup- failed to make child one or more of following reasons: port payments in per the amount of $121 a. It public policy; month for 92 months between December b. The parties cannot reduce the 16, 1985, and January totalling 1971/. amount arrearage; of child support $9,185.00. c. approval There was no judgment, trial court’s and our af- agreement; firmance, allows to “have her cake d. Failure of consideration that Re- and eat majority it too.” The holds spondent promised pay what he al- agree- since the “Settlement and Release” ready owed. void, appellee ment was can have the “Agreed Modifying Order Or- Prior having regard rights 6. After to the der” as though enforced there party, considering each the issues agreed pay-out of prior arrearage. Ac- referred into Conclusionof Law Number cording ruling, to our appellee was entitled 2, and all other to be factors considered per to collect month from April $325 Texas; under the laws of the State of through September per $350 1,1987, plus month from October Respondent contempt D. is in of court month for the prior $121 for failure to or- April 1986. dered in the Decree of Divorce which findings The trial court filed fact by the Agreed was modified Order Modi- law, part: conclusions of which recited in Order; fying Prior 2) Respondent is in No- arrears as of FINDINGS OF FACT vember 1988 in the October, 1985, Petitioner filed a *7 $7,202.00. Contempt Motion for Pay for Failure to error, point In his com- first Support Modify Child and a to Motion plains that erred the trial court in conclud- support. increase child ing as a the matter law that “Settlement October, support arrearage 10. Child in un- and Release” void and was $9,885.00. totaled agree. enforceable. I Respondent 11. Petitioner and entered appears reported It Texas case that into settlement and release precise question the addressed 6,May on 1986. com- spouses validly whether can former promise a claim for and settle accrued 13. The settlement agree- and release reducing unpaid child without first support, parties, approved by ment was the but obtaining judgment the arrearages approved by not the Court. agree- approval of the settlement contempt 14. Petitioner dismissed her ment. May action on 1986. opinion that “Set- majority The holds the Agreed An Modifying 15. Order Prior void tlement and Release” Order was entered signed prior the because it was Respondent paid support the child arrearages support being re- to the Agreed in Modifying ordered the Order 14.41(a) under judgment duced to § until Prior Order November of 1987 majority Family relies Texas Code. began residing when the child in resi- the that in Martin to effect dicta Adair v. dence. prior unpaid support is not “debt” judgment, 595
to its reduction
533 (Tex.1980), right the to set- “judgment 515 the ma- therefore debtor”—have jority holds that the had no authori- arrear- compromise tle and a child ty reduce or arrear- debt, judgment as debt. any other ages by agreement. rulings the in This view is in accord with I present consider it relevant uphold states settlement and other that case, parties did not modi- “reduce or spous agreements former release between fy” arrearages; rather, they See, e.g., support. for es accrued child provided a manner of for Andersen, 89 Idaho 407 Andersen v. arrearages full amount of over a (1965); v. Bran P.2d 307 Brannock of time. nock, 104 722 P.2d 670 N.M. 385, 722 (N.M.Ct.App.1985),
I it relevant 104 N.M. aff'd, also consider that after Miller, Supreme (N.M.1986); v. 1980 Court decision in Adair P.2d v. 29 Miller Martin, legislature (Oregon amended Or.App. 565 P.2d § Code, Family Smith, Texas effective Janu- Ct.App.1977); Hartman (italicized ary portion as follows (1984). P.2d Wash.2d the old indicates additions to statute delinquent treat These cases out-of-state Adair):1 at the time of effect owed to support payments as a debt (a) Arrearages. Judgment peri- A conservator since wife/managing former support payment timely odic child funds to already she has used her own judgment constitute a Therefore, made shall the children. final owing. the amount due and On former provide the eases that the wife cited obligee or obligor, motion of an consideration, release may, for sufficient hearing, the notice and court shall con- obligation the former husband from the amount owing. previously support payments make firm judgment and shall render arrears reasons, I would hold foregoing For the against obligor amount of incorrectly concluded that the trial court support unpaid owing. agree- and Release” “Settlement may rendered the court be (a) it is ment is “void [because] subject to a counterclaim or offset (b) public policy; cannot reduce (c) provided by Subsection this sec- arrearage; the amount judgment may tion. The enforced (c) approval of the there no court any means available for enforcement agreement.” judgments for debts. I hold that the trial court’s would further my opinion, amendment concluding the fourth stated reason for 14.41(a)simply existing leg- clarified the void, fail agreement is was a] “[there intent; it I do not believe that islative *8 Respondent in that ure of consideration change substantive caused owed,” already promised he what rights regard with specifical Appellant/respondent incorrect. legislature made it arrearages. ly owed all amounts denied that he support pay- accrued child clear that each a con claimed; settlement of separate judgment. final ment a becomes consid tested lawsuit in itself sufficient appellee argues, It is true uphold agreement. eration to a settlement authority no reduce or court has (Tex. 203, 204 Schuh, Schuh v. support arrearages. amount of 1970, writ). Civ.App. - Dallas 14.41(d) 14.40(d), Ann. Tex.Fam.Code §§ point of error appellant’s (Vernon 1986). However, I would sustain I that the believe one, judgment, and reverse trial court’s “judgment creditor” and —a 1158, 1163], contained lan- Tex.Gen.Laws effect at the time Adair was 1. statute in 14.09(c), 543, 14.09(c) guage § former similar to that of §Ann. [ch. Tex.Fam.Code former substantive differences minor textual and Section § 1426]. Tex.Gen.Laws appeal. Section 14.09(c) repealed by relevant ch. § Sess.1986, 2nd Called § amended ch. 1170. Former section 14.- Tex.Gen.Laws January 1987. 41(a), effective same Tex.Gen.Laws within the bill [ch. enacted remand this cause to the trial court for respective
reconsideration of the claims of light rights of their and obli-
gations 6,May under the 1986 “Settlement agreement. Release” EAST, LTD.,
HBA a Texas Limited Part Inc., East,
nership, Ring Network, HBA
Inc., Ring Sports Promotions, Inc., Productions, Inc.,
Round One and Jef Levine,
frey Appellants, D. COMPANY,
JEA BOXING INC. Pine Investments, Inc.,
Hill Houston d/b/a
Boxing Association, Appellees.
No. 01-89-00557-CV. Texas, Appeals
Court Dist.). (1st
Houston
Aug.
Rehearing Sept. Denied