Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of June 4, 2018.

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

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Waldrop v. Waldrop, No. 02-15-00058-CV (June 7, 2018) (en banc) (Walker, J., joined by Gabriel and Kerr, JJ., Rebecca Simmons, J. (Sitting by Assignment), and Birdwell, J., as to Parts I-IV and, except for the disposition, Part V*; Sudderth, C.J., dissents with opinion, joined by Pittman, J., and Lee Ann Dauphinot (Senior Justice, Retired, Sitting by Assignment); Meier, J., concurs with opinion).

Held:  Because we hold that the Contractual Maintenance provision in the Waldrops’ agreed divorce decree is purely contractual—not spousal maintenance governed by chapter 8 of the family code—and that the language of the Waldrops’ Contractual Maintenance provision authorizes the trial court to modify or terminate Kenneth’s maintenance obligation by court order based on a change in Kenneth’s circumstances affecting his maintenance obligation, we leave it to the trial court’s discretion, as did the parties in the Contractual Maintenance Provision, to determine whether Kenneth’s maintenance obligation should be terminated or modified and to determine the amount, if any, of a modification.

Dissent:  The majority’s failure to explain what the “further orders of the court” clause actually means gives the trial court no guidance on remand and instead invites the trial court to decide for itself what standard to apply.  Further, the clause itself is illusory at its core because it purports to allow for modification of the contract without a meeting of the minds as to the circumstances that would trigger such a modification.

Concurrence:  The Contractual Maintenance provision is purely contractual and can be modified by further court order absent one of the four specific circumstances contained under paragraph one of the provision, but I would direct the trial court that the standard to apply on remand in arriving at a “further order[] of the court” should be as follows:  “Has there been a material change in Kenneth’s circumstances that warrants a modification of the contractual maintenance payment terms?”

*Justice Birdwell would affirm the trial court’s judgment because Kenneth did not prove a material and substantial change in circumstances justifying further orders of the court, which is the statutory burden the parties incorporated into their Contractual Maintenance Provision.