Lambourn v. Lambourn

OPINION

SEARS, Justice.

This an appeal from a divorce proceeding. Roger Lambourn (Appellant) and Nancy Lambourn (Appellee) were divorced in December, 1984. The district court entered a final decree of divorce, incorporating by reference an agreement incident to divorce. The decree required each party to purchase and maintain a life insurance policy for the benefit of their minor child until he reached twenty-two. Appellant failed to provide proof of insurance to appellee. Ap-pellee filed a motion for enforcement and clarification of the original decree. The district court granted appellee’s motion, ordered both parties to offer proof of coverage annually, and ordered appellant to pay $4500.00 to appellee for attorney fees incurred in the enforcement proceeding. In two points of error, appellant contends the district court erred by granting appellee’s motion and contends the court abused its discretion by awarding appellee ■ attorney fees. We reverse the order of the district court.

In his first point of error, appellant contends the district court erred by granting appellee’s motion for enforcement. We agree. A court of continuing jurisdiction has no authority to order or to enforce support for a non-disabled child over eighteen. Tex.Fam.Code Ann. § 14.05 (Vernon Supp.1989); Elfeldt v. Elfeldt, 730 S.W.2d 657, 658 (Tex.1987). Accordingly, the district court was without authority to order appellant to maintain life insurance for the benefit of the child until the child reached age twenty-two. The dissent concludes that the district court’s order is at most voidable, relying on Garza v. Fleming, 323 S.W.2d 152, 155, (Tex.Civ.App.—San Antonio 1959, writ ref’d n.r.e.). In Garza the trial court ordered appellant to pay $100.00 per month for the support of “the minor children” until the youngest child reached age eighteen. Because the Garza order did not require appellant to pay support for any child over the age of eighteen, the appellate court correctly refused to find the trial court’s order void. Thus, Garza is factually distinguishable from the order in this case and does not support the dissent’s conclusion.

Appellee contends the parties contracted to provide the coverage and contends the agreement is enforceable under § 14.06 of the family code. We disagree. Tex.Fam.Code Ann. § 14.06 provides:

(d) Terms of the agreement set forth in the decree may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as contract terms unless the agreement so provides.

(Vernon 1986) (emphasis added). Section 14.06(d) clearly requires that the parties to an agreement concerning the support of a non-disabled child over eighteen must expressly provide in the order incorporating the agreement that its terms are enforceable as contract terms for that remedy to be available. Assuming an agreement existed, we cannot find a provision in the decree allowing enforcement of the agreement as a contract. Moreover, even assuming the agreement provided for enforcement as a contract, appellee’s only remedy would be a common law breach of contract action, not a motion for enforcement. Adwan v. Adwan, 538 S.W.2d 192, 195 (Tex.Civ.App.—Dallas 1976, no writ); Carson v. Korus, 575 S.W.2d 326, 328 (Tex.Civ.App.—San Antonio 1978, no writ). See also Fullerton v. Holliman, 730 S.W.2d 168, 170-71, (Tex.App.—Eastland 1987, writ ref’d n.r.e.) (holding that where the written agreement is not set forth in the decree, the agreement remains enforceable only as a contract). Accordingly, we reverse the order of the district court and we render judgment for appellant.

Appellee brings two counter points charging appellant with filing a frivolous .appeal. Appellee seeks attorney fees and sanctions. We overrule both cross points.