I respectfully dissent. The majority opinion reaches a desirable result but I am of the opinion that in their efforts to reach that result, they have placed a strained construction upon section 14.06(d) of the Texas Family Code.
The parties to the suit settled their differences concerning child support by submitting an agreed judgment to the trial court. This judgment was approved and signed by the trial court. The parties did not have a separate contractual settlement agreement, and the consent judgment did not provide that the terms of the judgment would be enforceable in a suit based on contract.
Section 14.06(d) specifically states that "terms of the agreement set forth in the decree . . . are not enforceable as contract terms unless the agreement so provides."
The appellant and the majority opinion of this Court rely onAdwan v. Adwan, 538 S.W.2d 192, 195 (Tex.Civ.App. — Dallas 1976, no writ), to support appellant's position. The facts in Adwan are distinguishable from the facts in the instant case. Adwan was a suit for damages to enforce a separate written contractual agreement that had been entered into, in addition to a judgment. The present suit is to recover child support based on a consent judgment where there was no separate written agreement.
That portion of the judgment relied upon by the majority to support its position states as follows:
It is, therefore ORDERED and DECREED as the parties have agreed that Respondent's . . . obligation to or for the benefit of each child designated above shall not cease with Respondent's death but shall be an obligation of Respondent's estate.
Because the cited portion of the trial court's judgment continues the same obligations against the appellant's estate as the judgment establishes against the appellant, the majority concludes, as a matter of law, that an enforceable contract was created. I disagree with this conclusion. The portion of the judgment quoted above only extends those responsibilities agreed to by the appellant to his estate and nothing more. This extension does not create a contract and does not create additional rights for the appellee against the appellant. Furthermore, even if the parties in this case intended for a contract to be formed, oral or written, the judgment would not be enforceable as a contract, because such information is not recited in the judgment as required by sec. 14.06(d).Dorshaw v. Dorshaw, 635 S.W.2d 783, 785 (Tex.App. — Corpus Christi 1982, no writ). I see no logical reason why an oral agreement incorporated into a judgment would be enforceable and a written agreement incorporated into a judgment not enforceable, where neither of the judgments comply with the requirements of sec. 14.06(d).
I would affirm the judgment of the trial court. *Page 311