COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00058-CV
KENNETH RAY WALDROP APPELLANT
V.
TERESA WALDROP APPELLEE
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FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2006-61054-393
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DISSENTING MEMORANDUM OPINION1
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When a declaratory judgment case is over, the parties to a deed, will,
written contract, or other writings constituting a contract have some expectation
that the court will make a declaration regarding their rights under said deed, will,
written contract, or other writings constituting a contract. See Tex. Civ. Prac. &
Rem. Code Ann. § 37.004(a) (West 2015). Whether the party believes the
1
See Tex. R. App. P. 47.4.
court’s ultimate decision is right or wrong, the party at least should have some
clarity regarding its rights.
Here, the parties had such clarity at the trial court level. The central issue
below was whether the maintenance provision in the parties’ agreed divorce
decree was contractual in nature or subject to the spousal maintenance
requirements of chapter 8 of the family code.2 After the trial court made an
interlocutory ruling that the maintenance provision was contractual and not
subject to chapter 8’s spousal maintenance requirements, Appellant Kenneth
Ray Waldrop amended his petition to seek a declaratory judgment regarding the
circumstances in which a party could modify the subject maintenance provision.
After a bench trial, the trial court found that the subject maintenance provision
“was contractual in nature and not subject to Section Eight of the Texas Family
Code” and further found that the maintenance provision could only be modified
by the death of either Kenneth or Appellee Teresa Waldrop, the remarriage of
Teresa, the cohabitation of Teresa, or Teresa receiving her benefit from a
Kimberly Clark pension.
On appeal, Kenneth challenges the trial court’s finding that the subject
maintenance provision is contractual and not subject to chapter 8’s spousal
maintenance requirements (his first issue) and challenges the trial court’s
declaration regarding the circumstances in which the subject maintenance
2
See Tex. Fam. Code Ann. § 8.001 (West 2006).
2
provision could be modified (his second issue). But rather than addressing these
issues, the Majority assumes—without deciding—that the subject maintenance
provision calls for chapter 8 spousal maintenance and concludes that Kenneth
does not meet the modification requirements of chapter 8.3 According to the
Majority, Kenneth’s first two issues need not be reached because it concluded
that Kenneth did not establish a material and substantial change to his
circumstances—the standard for modification under chapter 8. See Tex. Fam.
Code Ann. § 8.057(c).
As I see it, Kenneth’s second issue—whether the trial court erred in
declaring the circumstances required to modify the subject maintenance
provision—does not go away simply by assuming that chapter 8 applies.
Perhaps it would go away if the Majority actually reached Kenneth’s first issue
and held that the subject maintenance provision calls for chapter 8 spousal
maintenance, but the Majority makes no such holding. I fear the parties will be
back before the trial court (and ultimately us) in the near future to again
determine whether the maintenance obligation should be modified. The same
issues will need to be litigated then because we have not addressed them here.
Does the subject maintenance provision call for contractual maintenance, as the
trial court held, or does it call for chapter 8 spousal maintenance as the Majority
3
Under chapter 8, a trial court may modify a spousal maintenance
obligation “on a proper showing of a material and substantial change in
circumstances . . . relating to either party.” Tex. Fam. Code Ann. § 8.057(c)
(West Supp. 2016).
3
assumes? Can the subject maintenance provision only be modified by the death
of either Kenneth or Teresa, the remarriage of Teresa, the cohabitation of
Teresa, or Teresa receiving her benefit from the Kimberly Clark pension, as the
trial court held, or are there other circumstances—like a material and substantial
change in Kenneth’s circumstances—that would allow for the modification of the
subject maintenance provision? Kenneth raised these issues, and we did not
address them.4 Because I think we should have, I respectfully dissent.
/s/ Sue Walker
SUE WALKER
JUSTICE
DELIVERED: September 29, 2016
4
It is particularly troubling to me that we do not reach Kenneth’s second
issue—the issue in which he challenges the trial court’s declaration of his right to
modify the subject maintenance provision—when we reach his fourth issue
concerning the award of attorney’s fees. As noted by the Majority, that award of
attorney’s fees was based on the suit being brought under the Uniform
Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009
(West 2015). It seems to me that if we uphold an award of attorney’s fees based
on a declaratory judgment then we should address the merits of the declaratory
judgment when they have been raised on appeal.
4