OPINION
This is an appeal from the granting of a motion for summary judgment. Appellant and appellee were divorced in 1987. They had entered into an agreement incident to divorce and that agreement had been incorporated into an agreed decree. In 1989 appellant filed a motion to increase the child support payments. Appellee filed a motion for summary judgment on the basis that the agreement was a contract and that the consent decree was not subject to modification absent a showing of fraud, accident, mistake or mutual consent of the parties. The motion was based solely upon the legal issue that the contractual agreement precluded the trial court from considering the modification. The motion was not based upon the premise that there were no genuine issues of material fact concerning any changed conditions. The trial court well understood the legal issue before the court when the order granting the motion for summary judgment stated: "Accordingly, if a consent agreement [sic] concerning Chapter 14 subject matter — i.e., conservatorship, support and possession of children, is incorporated into a divorce decree, found by the court to be in the best interest of the children, and provides that the terms are enforceable as a contract, the trial court may not modify the provisions of such agreement." Appellant now appeals.
The trial court obviously felt he was without authority to consider the factual allegations of the motion. The courts of appeal are divided concerning this legal issue. In Comeauxv. Comeaux, 767 S.W.2d 500 (Tex.App. — Beaumont 1989, no *Page 562 writ) this court, with this writer dissenting, reversed a trial court's holding that a contractual child support agreement could not be modified. As part of its rationale, the court stated at 503:
We take the position that child support agreements are sui generis. They have a purpose and a place all their own. Child support payments should be treated in a separate manner and in a mode that is consistent with their true function and correct purpose. We have done so. We reject the sterile concept that, if the child support payments are approved in the divorce decree, the same cannot be, as asserted by Appellee, attacked collaterally once the judgment is final. We determine that such conceptualistic, unrealistic thinking is simply out of place in the modern-day world of numerous, tragic divorces involving minor children.
As early as 1969, the Amarillo court in Duke v.Duke, 448 S.W.2d 200 (Tex.Civ.App. — Amarillo 1969, no writ) held that contractual child support provisions were subject to court modification. See also Matter of Marriageof Edwards, 804 S.W.2d 653 (Tex.App. — Amarillo 1991, no writ). In Alford v. Alford, 487 S.W.2d 429 (Tex.Civ.App. — Beaumont 1972, writ dism'd w.o.j.) this court noted the rule that a court did not have authority to modify the terms of a settlement agreement except by consent of the parties. This rule was again followed in Lee v.Lee, 509 S.W.2d 922 (Tex.Civ.App. — Beaumont 1974, writ ref'd n.r.e.). Ruhe v. Rowland, 706 S.W.2d 709 (Tex.App. — Dallas 1986, no writ) adopted the rule for the Dallas court. Later that same year, the Eastland court inHuckeby v. Lawdermilk, 709 S.W.2d 331 (Tex.App. — Eastland 1986, no writ) rejected Ruhe, and held a court could modify a child support order despite a contractual agreement. This holding was reaffirmed inWoodley v. Bruton, 796 S.W.2d 304 (Tex.App. — Eastland 1990, writ denied). The majority opinion inDorshaw v. Dorshaw, 635 S.W.2d 783 (Tex.App. — Corpus Christi 1982, no writ) acknowledged the holding ofDuke as guidance, but found a distinction in their case due to the absence of any provision that the child support agreement should be enforceable as a contract. However, the concurrence in Dorshaw rejected the holding inDuke and any inference in the Dorshaw majority opinion which stood for the proposition that the court could modify a contractual provision when it appeared in the best interest of the child. Recently in Hoffman v.Hoffman, 805 S.W.2d 848 (Tex.App. — Corpus Christi 1991, writ denied) the court found a decree could be modified since it was separate and distinct from the contractual agreement. Most recently in Hill v. Hill, 819 S.W.2d 570 (Tex.App. — Dallas 1991, n.w.h.) Chief Justice Enoch declared it against public policy to allow the common law of contracts to "effectively prevent other courts from carrying out their duty to increase the amount of court-ordered child support when required by the best interest of the children. . . ."
While this is by no means an exhaustive study, it appears the Amarillo, Eastland, Corpus Christi and Dallas Courts of Appeal now adhere to the modification rule. Our court was one of the early leaders in the "a contract is a contract" rule withComeaux being a deviation. Not only does stare decisis dictate following Comeaux and allowing a modification hearing, but it is the better reasoned rule to allow courts to perform their statutory function and consider modifications in the face of contractual agreements. Consequently we reverse the summary judgment.
REVERSED AND REMANDED.