Notwithstanding my disapproval of the careless and inexcusably sloppy handling1 of the property rights of the parties in the original decree, I respectfully dissent.
Our appellant invoked the jurisdiction of the divorce court seeking a divorce and a division of the community property. The decree in our record reveals that he was present in court with his counsel at a time when it "was announced to the Court that the parties hereto had agreed to a property settlement", as noted in the majority opinion. Our appellant knew that this agreement bound him to make monthly payments over a period of time aggregating $36,000 and he knew, because he was there when the announcement was made, that the court decreed that he should have the rest and remainder of the community property.
He not only knew of his obligations under the judgment, but he performed by making the payments for approximately eighteen months (May, 1974 — November, 1975). In his opposition to the summary judgment, appellant swore:
"That at the time said divorce decree was rendered by the Court, all parties appeared in person and announced to the Court that they had agreed upon a settlement of this cause. . . . That it was agreed that SONJA A. McCRAY would receive the sum of $25,000 cash for her interest in the community property. I further agreed to pay to SONJA A. McCRAY the sum of $272.73 per month for 132 months for alimony. At the time I agreed to this, I did not know it was illegal for the Court to order alimony payments and I was told that I would be able to deduct such payments from my income tax and that all such payments would be income to my wife."
Appellant does not — even now and four and a half years later deny the existence of the settlement agreement. Instead, he admits the agreement and attempts to avoid it by an explanation. This is a collateral attack upon a judgment. See G. Hodges, "Collateral Attacks on Judgments", 41 Texas L.Rev. 163 (1962):
*Page 672 See also Peddicord v. Peddicord, 522 S.W.2d 266 (Tex.Civ.App. — Beaumont 1975, writ ref'd n.r.e.), and authorities therein cited."A collateral attack is an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose."
The reliance upon Rausheck v. Empire Life Insurance Co. of America, 507 S.W.2d 337 (Tex.Civ.App. — Texarkana 1974, writ ref'd n.r.e.), is misplaced. The attack there was direct — not collateral.
Tex.R.Civ.P. 112 has no applicability. The agreement was made in open court and entered of record by being noted in the judgment of the court. See Sone v. Braunig, 469 S.W.2d 605, 609 (Tex.Civ.App. — Beaumont 1971, writ ref'd n.r.e.).
Even appellant's belated excuse for defaulting upon his obligations constitutes no legal defense. We had a similar excuse tendered in Lee v. Lee, 509 S.W.2d 922, 926 (Tex.Civ.App. — Beaumont 1974, writ ref'd n.r.e.), which was disposed of in this manner:
"Burt (Lee) made no effort to prove fraud, as indeed he could not in the posture in which the question arose: his own lawyer made the statement upon which he relied. Cf. O'Meara v. O'Meara, 181 S.W.2d 891, 894 (Tex.Civ.App., San Antonio, 1944, error ref.); Boley v. Boley (Tex.Civ.App., 506 S.W.2d 934) Supra fn. 4. If there was a mistake made by Burt's lawyer, it was one of law. Insofar as Burt contended that there was a Mutual mistake, it too was one of law and not of fact. But a mutual mistake of law is not ground for rescission or cancellation of a contract. Harris v. Sanderson, 178 S.W.2d 315, 320 (Tex.Civ.App., Eastland, 1944, error ref. w.o.m.); Ussery v. Hollebeke, 391 S.W.2d 497, 501 (Tex.Civ.App., El Paso, 1965, error ref. n.r.e.)." (emphasis in original)
Appellant was not justified in repudiating his court-approved obligation to make the monthly payments to the appellee. His erroneous unilateral determination that such a payment was illegal, under the circumstances shown by our record, constitutes a collateral attack on the judgment and is no defense to appellee's claim.
I would affirm the judgment of the trial court.