This action was filed by plaintiff (Sonya) to enforce a "contractual alimony" agreement contained in a decree of divorce entered May 22, 1974. Plaintiff filed her motion for summary judgment which was granted by the trial court, and defendant appeals therefrom.
The pleadings of plaintiff show that on May 22, 1974, a decree of divorce was entered, and, as alleged by plaintiff, "(t)hat said Decree of Divorce provided that the Petitioner (defendant) . . . pay to the Respondent (plaintiff) . . . the sum of $272.73 per month as "Contractual Alimony, for a period of 132 months, for which there was to be a reasonable security." Plaintiff's pleadings also were to the effect that defendant is delinquent in the monthly payments required by such divorce decree and that no payments have been made since November 1975 and prayed for recovery for the delinquent money due plaintiff.
The trial court granted plaintiff's motion for summary judgment, and recites therein that "the Court finds that the Decree of Divorce between Plaintiff and Defendant entered in Cause Number 25,986 . . . constitutes a binding contract for the division of the parties' community estate. . . ." Whereupon the court granted a summary judgment against defendant in the sum of $7,636.44 representing delinquent installments in the amount of $272.73 per month from December 1975 until the date of the judgment.
The divorce decree rendered in the original divorce proceedings contained this paragraph:
"And it appearing and was announced to the Court that the parties hereto had agreed to a property settlement which in brief is that Petitioner GEORGE MCCRAY, is to pay to Respondent the sum of $25,000.00 cash of which no more than $10,000.00 may be represented by salable real property. Further that the Petitioner is to pay to the Respondent the sum of $272.73 per month as Contractual Alimony, the said payments to be limited to 132 installments, for which there shall be reasonable security. The Petitioner is to receive the rest and remainder of the Community Estate as his separate property. A more full and complete property agreement is to be filed herein which agreement is fully approved herein."
Following this reference to the property agreement settlement, the court then proceeded to grant the divorce, and as to the minor child of the parties, the court decreed: "It is the further order of this Court that the temporary custody of this minor child be and remain in JANE FRIETAG, until further order of this Court." The court made no further mention or any specific order or decree concerning the "contractual alimony" payments referred to in the reference to an agreement of the parties.
The parties are in agreement that they did not execute or file with the court the contractual property settlement agreement referred to in the divorce decree.
The court in the divorce decree in the original proceedings did not specifically order the division of the parties' property, but, instead, merely approved the parties' agreement, and such recitals have been held not to be an award of the court. In Rausheck v. Empire Life Insurance Co., 507 S.W.2d 337 (Tex.Civ.App. — Texarkana 1974, writ ref'd n.r.e.), the court, in quoting 49 C.J.S. Judgments § 71, states:
*Page 671"The judgment or decree does not reside in its recitals but in the mandatory or decretal portion thereof, which adjudicates and determines the issues in the case and defines and settles the rights and interests of the parties as far as they relate to the subject matter of the controversy. . . ."
And, in quoting from 46 Am.Jur.2d Judgments, Sec. 78:
"(I)t is only the decretal portion of the judgment that operates as a judgment; the rights of the parties are adjudicated, not by the recital of facts, but solely by the decretal portion."
Accord, Harrison v. Manvel Oil Co., 142 Tex. 669, 180 S.W.2d 909 (Com.App. 1944, jdgmt. adopted); Cox v. City County of Dallas Levee Improvement Dist., 258 S.W.2d 851 (Tex.Civ.App. — Dallas 1953, writ ref'd n.r.e.).
In view of the above authorities, the mere recitation by the court that the property agreement had been agreed upon, and briefly referring to the conditions thereof in a general way, and specifically stating that "a more full and complete property agreement is to be filed herein which agreement is fully approved herein" did not constitute an award or order of the court, that such was not a decree of the court, and in the absence of a specific decree could not be enforced as a part of the judgment.
The plaintiff could not recover upon the property settlement agreement, separate and apart from the divorce decree. Such agreement cannot be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record. See Tex.R.Civ.P. 11; Behrens v. Behrens, 186 S.W.2d 697 (Tex.Civ.App. — Austin 1945, no writ); Pewthers v. Holland Page Industries, Inc., 443 S.W.2d 392 (Tex.Civ.App. — Austin 1969, writ ref'd n.r.e.); McIntyre v. McFarland, 529 S.W.2d 857 (Tex.Civ.App. — Tyler 1975, no writ).
The summary judgment of the trial court is reversed, and the cause is remanded.
REVERSED and REMANDED.