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Court of Appeals of Texas, Houston (1st Dist.).


NO. 01-16-00147-CV

Decided: December 21, 2017

Panel consists of Chief Justice Radack and Justices Keyes and Massengale.


There was no collateral attack on the divorce decree in this case. Instead, the trial court clarified an ambiguity in the decree, as it was empowered to do.

Julie Lowery sought to hold her ex-husband, Houston, in contempt of an agreed divorce decree for failure to continue payment of spousal maintenance. To the extent the decree was insufficiently definite to justify a contempt finding, Julie requested, in the alternative, that the trial court clarify the decree to support a future contempt finding in the event of Houston's continued nonpayment of maintenance. The Family Code expressly contemplates and authorizes the clarification of a divorce decree in this context, providing: “On the request of a party or on the court's own motion, the court may render a clarifying order before a motion for contempt is made or heard, in conjunction with a motion for contempt or on denial of a motion for contempt.”1

In response, Houston also sought a clarification of the decree to support his opposite understanding of the decree—that the maintenance obligation terminated after three years in accordance with then-applicable limitations in Chapter 8 of the Family Code, which was expressly referenced in the decree.

In the face of the parties' competing motions to clarify, the trial court clarified the prior order, and ordered that Houston's “post-divorce maintenance obligation terminated by operation of law after thirty-six (36) months.”

On appeal, our court presupposes that the clarification order impermissibly altered the terms of the divorce decree, thus supporting the characterization of it as a “collateral attack” on the decree. I respectfully conclude that this is the wrong approach.

As demonstrated by Julie's and Houston's competing motions for clarification, the agreed divorce decree contained a latent ambiguity that did not surface until a dispute arose over the termination date of the maintenance obligation. The decree stated that the trial court found “the parties have agreed to post-divorce maintenance in accordance with Chapter 8 of the Texas Family Code,” and it ordered post-divorce maintenance “pursuant to Chapter 8 of the Texas Family Code.” The parties disagreed about whether this provision incorporated a statutory three-year limit on post-divorce spousal maintenance. The decree specified circumstances which would cause the spousal maintenance obligation to end,2 but no provision on the face of the decree was expressly inconsistent with the three-year statutory limit.

The decree's provisions had to be interpreted to rule on Julie's motion, and to the extent the decree was not sufficiently specific to justify holding Houston in contempt for stopping his payments, she requested a clarification to confirm her interpretation. Did the decree's language mean that Chapter 8's limits were incorporated by reference? Or did the decree purport to supplant the statutory limitation with a different provision about when the maintenance obligation ended? We review the trial court's ruling for abuse of discretion,3 and we should affirm the order if it was legally justified.

In its opinion concluding that the clarification order was a collateral attack, our court characterizes the Family Code as “extraneous evidence,” which it suggests may not be consulted in the absence of ambiguity on the face of the decree. That's incorrect as a matter of contract law, because an agreement can incorporate by reference terms “beyond the four corners of the agreed divorce decree.”4

Our court also suggests that any ambiguity can't be resolved by reference to Chapter 8, because the then-applicable default limit of three years for spousal maintenance had an exception that permitted an award of maintenance for a spouse with an “incapacitating physical or mental disability ․ for as long as the disability continues to render the spouse unable to support himself or herself through appropriate employment.”5 There is no argument or evidence in this case that the exception applied to Julie, such that it was an abuse of the trial court's discretion to apply Chapter 8's three-year maintenance limit. Even if there were an issue of spousal incapacity, the prior version of the statute also specifically authorized the filing of a motion to modify spousal maintenance awarded under the exception to the otherwise-applicable three-year limit.6

The order did not collaterally attack the original decree—it clarified an ambiguity about the termination date, as the trial court was empowered to do. Because our court concludes otherwise and sustains Julie's third issue characterizing the clarification order as a collateral attack on the agreed divorce decree, and because the other issues raised by Julie do not support reversal,7 I respectfully dissent.


1.   TEX. FAM. CODE § 9.008(a).

2.   These included the death of either Julie or Houston, the remarriage of Julie, and an open-ended reference to “further order of the court affecting post-divorce maintenance obligation.”

3.   Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

4.   See, e.g., City of Houston v. Williams, 353 S.W.3d 128, 144 (Tex. 2011) (holding that municipal ordinance which incorporated another statute by reference was a unilateral contract and noting: “We of course do not hold that a statute cannot be incorporated by reference into a contract.”); In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (“A contractual term is not rendered invalid merely because it exists in a document incorporated by reference ․”); Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex. 1968). For this reason it is also inaccurate to suggest that considering the provisions of Chapter 8, which were expressly referenced as part of the divorce decree, would constitute impermissible reliance on parol evidence to “create” an ambiguity in an otherwise unambiguous instrument.

5.   Act of May 25, 2005, 79th Leg., R.S., ch. 914, § 3, 2005 Tex. Gen. Laws 3146, 3147 (current version at TEX. FAM. CODE § 8.054).

6.   Id.; see also TEX. FAM. CODE § 8.057 (authorizing modification of maintenance order).

7.   In her first issue, Julie argues that the trial court's clarification of the decree was incorrect as a matter of law. Her argument is based on a single case, Crane v. Crane, 188 S.W.3d 276 (Tex. App.—Fort Worth 2006, pet. denied), which is distinguishable both on the facts (the decree specified specific term of spousal maintenance in excess of three years, which led the court to assume a finding of incapacity) and the law (the court applied a prior version of Section 8.054(b), which was amended in 2005). 188 S.W.3d at 278–80. Julie's second issue contends that the trial court erred by clarifying the order because Houston failed to identify an ambiguity. For the reasons set forth above, I conclude the decree was sufficiently unclear to preclude a contempt finding, see, e.g., In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009), and therefore a clarification was permitted. See TEX. FAM. CODE § 9.008(a).

Michael Massengale Justice

Justice Massengale, dissenting.

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