NO. 07-10-00029-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 20, 2010
DIANE HUFFINES, APPELLANT
v.
TIMOTHY MCMAHILL, APPELLEE
FROM THE COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY;
NO. CCL-559-06-E; HONORABLE JIM C. HOGAN, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Diane Huffines appeals a judgment awarding her former husband
Timothy McMahill damages for breach of an agreement to pay their son’s college
tuition. Finding the trial court abused its discretion by enforcing the terms of the
agreement as a contract, we will reverse and render judgment that McMahill take
nothing.
Background
On March 7, 1989, the trial court signed a final decree of divorce dissolving the
marriage of Huffines and McMahill. Huffines was made sole managing conservator of
the parties’ son, and McMahill was responsible for payment of monthly child support. In
November 1998, the trial court signed an order granting McMahill’s motion to modify. In
the order, to which Huffines and McMahill agreed as to form and substance, the court
modified the terms of possession of the child. In addition, the order contained the
following paragraph eight:
Support.
IT IS ORDERED that neither party is to pay child support, except
that Timothy McMahill is to continue to provide health insurance for [the
child]. Timothy McMahill will provide for [the child’s] clothing needs, sports
activity fees, school fees, and future vehicle needs. Timothy McMahill and
Diane S. Huffines will each be responsible for one-half (1/2) the cost of
[the child’s] college tuition. Unreimbursed medical expenses will be paid
50% by Timothy McMahill and 50% by Diane S. Huffines. C.R. 12.
By 2006, the parties’ son was over the age of eighteen and enrolled in college.
Huffines refused to pay for one-half of his tuition pursuant to the 1998 order. McMahill
filed suit but under a cause number separate from the previous family law proceeding.
The trial court awarded McMahill $8,712.14 in damages for Huffines’ breach of contract.
Huffines filed a motion for new trial that was overruled by operation of law.
Analysis
Huffines brings five issues, urging that the trial court abused its discretion by (1)
finding the 1998 order enforceable as a contract; (2) finding the 1998 order was not
superseded by a subsequent order of December 11, 2001; (3) enforcing the 1998 order
as a contract because the consideration for the contract failed; (4) awarding damages
on factually insufficient evidence; and (5) enforcing the 1998 agreement as a contract
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after finding that the agreement of the parties to each be responsible for one-half of their
son’s college tuition was not a provision for the support of a child.
We review the trial court’s judgment under an abuse of discretion standard. See
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1991) (clear abuse of discretion). If the
trial court fails to accurately interpret the law or applies the law incorrectly, then it
abuses its discretion. Id.; Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-
42 (Tex. 1985). A trial court has no discretion in determining what the law is or properly
applying the law. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 643 (Tex.
2009) (citing In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 612 (Tex.
2006)).
Orders modifying the support of a child fall under the purview of § 154.001 of the
Family Code. Tex. Fam. Code Ann. § 154.001 (Vernon 2008). Section 154.001(a)(1)
prohibits court-ordered child support for children past the age of eighteen. At the time
relevant to this appeal, Family Code § 154.124(c) provided contractual enforcement of
child support past a child’s eighteenth birthday. Elfeldt v. Elfeldt, 730 S.W.2d 657, 658
(Tex. 1987) (per curiam) (interpreting § 14.06, recodified as § 154.124, court held
parties to an agreement concerning the support of a non-disabled child over eighteen
must expressly provide in the order incorporating the agreement that its terms are
enforceable as contract terms for a contractual remedy to be available). To utilize the
exception, the parties to an order for support of a child had to agree that the terms
would be enforced contractually, or the order had to expressly incorporate a contractual
agreement. Id.; Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996) (discussing
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requirement of Elfeldt that in absence of separate written agreement and when order is
only written manifestation of parties’ agreement, order must provide for enforceability as
contract).1
The order at the center of this case did not provide for contractual enforcement.
Elfeldt, 730 S.W.2d at 658; Bruni, 924 S.W.2d at 368. There is also no indication that
the parties made a written agreement for child support whose terms were incorporated
into the 1998 order. We conclude the trial court misapplied Family Code § 154.124(c) in
finding the agreement enforceable as a contract. See Bruni, 924 S.W.2d at 368.
McMahill relies on the finding of the trial court to argue that the parties’
agreement for payment of their son’s college tuition was a contract and not an
agreement concerning child support. But this is a conclusion of law rather than a finding
of fact. See In the Interest of A.L.H.C., 49 S.W.3d 911, 918 (Tex.App.--Dallas 2001,
pet. denied) (judgment is interpreted like other written instruments and absent ambiguity
construction of written instrument is question of law). A trial court’s incorrect conclusion
of law is not binding on the appellate court. Cadle Co. v. Regency Homes, Inc., 21
S.W.3d 670, 682 (Tex. App.--Austin 2000, pet. denied). See Bexar County Criminal
Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 643 (Tex.App.--San Antonio 1989, no
writ) (erroneous conclusions of law are not binding on an appellate court.)
1
Family Code § 154.124(c) was amended, effective for agreements entered on
or after September 1, 2003. The amendment has no application here, and would not
lead to a different outcome in any event. See Martinez v. Costilla, No. 04-07-0691-CV,
2008 Tex. App. Lexis 6896, *2 n.1 (Tex.App.—San Antonio Sept. 10, 2008, no pet.)
(mem. op.) (discussing statutory amendment).
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Paragraph eight of the 1998 order is labeled “support.” Its first sentence states
neither party shall pay child support except McMahill shall be responsible for his son’s
“clothing needs, sports activities fees, and future vehicle needs.” The following sentence
obligates McMahill and Huffines for payment of one-half of college tuition. The
paragraph then concludes with a sentence obligating McMahill and Huffines for
payment of unreimbursed medical expenses. One commentator observes, “[t]he most
common type of child support order is one that requires the parent who is not managing
conservator to pay the managing conservator a sum of money on a periodic basis.” 22
William V. Dorsaneo III, Texas Litigation Guide § 371A.03[2][a] (2006). But other types
of support are authorized. See Tex. Fam. Code Ann. § 154.001 (Vernon 2008) (either or
both parents may be ordered “to support a child in the manner specified by the order”);
§ 154.003 (specifying methods of payment). Child support payments may include a
specific expense, such as tuition. Rovner v. Rovner, 778 S.W.2d 905, 906 (Tex.App.—
Dallas 1989, writ denied). Here, the only reasonable reading of paragraph eight of the
1998 order is while neither party was obligated for periodic support payments each was
obligated for payment of one-half the cost of college tuition, as support of their son.
We conclude the trial court abused its discretion by not correctly applying Family
Code § 154.124(c).
We turn now to the question of harm and whether the error probably caused the
rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1). As noted, the instant suit
was filed as a separate breach of contract suit under its own cause number. The trial
court’s judgment and findings make clear the judgment is based only on a breach of
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contract theory. Because the 1998 order was not enforceable as a contract, the error of
the trial court resulted in an improper judgment.
Conclusion
Having sustained Huffines’ first issue and finding the error was not harmless, we
reverse the judgment of the trial court and render judgment that McMahill take nothing.
Our disposition of Huffines’ first issue makes unnecessary discussion of her remaining
issues. Tex. R. App. P. 47.1.
James T. Campbell
Justice
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