                              Fourth Court of Appeals
                                     San Antonio, Texas

                                 MEMORANDUM OPINION
                                        No. 04-12-00366-CV

                      In the INTEREST OF I.R.H. and Z.T.H., Minor Children

                     From the 408th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-CI-02883
                         Honorable David Berchelmann Jr., Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 1, 2013

REVERSED AND REMANDED

           This is an appeal from a trial court’s judgment granting appellee Mohamed Hajali’s plea

in abatement and dismissing appellant Mi Song Hajali’s motion to modify the parent-child

relationship. On appeal, appellant contends the trial court erred because a provision in the

agreed decree of divorce, requiring a party to pay $25,000 to the other party if he or she sought

to modify the terms of child custody and support, is void and unenforceable as a matter of public

policy and under principles of contract law. We reverse and remand.

                                              BACKGROUND

           Appellant and appellee entered into an Agreed Final Decree of Divorce (“the Divorce

Decree”). The divorce decree named appellant and appellee joint managing conservators of their
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two children, with appellee having the exclusive right to designate the primary residence of the

children without geographic restriction.

       Appellant filed a petition to modify the parent-child relationship, asking the trial court to

grant her the exclusive right to designate the primary residence of the children, and requesting

appellee pay child support. In response, appellee filed a plea in abatement along with his

original answer. The plea in abatement was based upon a condition precedent provision found in

the Divorce Decree, which provides:

       “15. Condition Precedent to Filing of Future Modification Actions
       IT IS ORDERED that upon filing a suit for modification of the terms and
       conditions of conservatorship, possession of the children or support, except in an
       emergency, the filing party shall pay to the other conservator the sum of $25,000
       on the date a suit for modification is filed. Failure by the filing party to pay the
       sum of $25,000.00 to the other conservator shall result in the immediate dismissal
       of the modification suit brought by the filing party. The parties expressly agree
       that this requirement is contractual in nature and enforceable as a contract, in
       addition to any other remedy at law.”

Appellee argued appellant failed to comply with the contractual condition precedent, which

required appellant to pay $25,000 when she filed the suit for modification. The trial court upheld

this provision, abated and then dismissed the case.

       Appellant asked the trial court to reconsider, arguing the condition precedent is void as a

matter of public policy and under principles of contract law. Additionally, appellant argued that,

should the provision be upheld, it had been fulfilled under the emergency exception. This

exception was based on information provided by appellant through an affidavit, where she

related events that she claimed placed the children in “immediate danger of physical and mental

abuse and neglect” by appellee. Specifically, appellant related alleged instances of domestic

violence she suffered prior to the divorce, and statements from the children that appellee had

physically abused them. In response, appellee advised the trial court that CPS had investigated



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these allegations and found them without merit. The trial court again upheld the provision in the

divorce decree and dismissed the case. Appellant then perfected this appeal.

                                               ANALYSIS

                                       Standard of Review

       In reviewing an order sustaining a plea in abatement, we apply the abuse of discretion

standard of review. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); Griffith v.

Griffith, 341 S.W.3d 43, 53 (Tex. App.—San Antonio 2011, no pet.); Hopkins v. NCNB Texas

Nat. Bank, 822 S.W.2d 353 (Tex. App.—Fort Worth 1992, no pet.). A trial court’s order of

dismissal is also reviewed for abuse of discretion. KSNG Architects, Inc. v. Beasley, 109 S.W.3d

894, 897 (Tex. App.—Dallas 2003, no pet.). “The test for abuse of discretion is whether the trial

court acted without reference to any guiding rules or principles.” Larson v. Downing, 197

S.W.3d 303, 304–05 (Tex. 2006) (quoting Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996)).

If there is a legitimate basis in the record to support the ruling, we must uphold it. E-Z Mart

Stores, Inc. v. Ronald Holland’s A-Plus Transmission & Auto., Inc., 358 S.W.3d 665, 674 (Tex.

App.—San Antonio 2011, pet. denied) (citing Owens–Corning Fiberglas Corp. v. Malone, 972

S.W.2d 35, 43 (Tex. 1998)).

                                           Application

       Appellant argues the trial court erred in upholding the condition precedent in the divorce

decree requiring a party to pay $25,000 to the other party for seeking to modify terms of child

custody and support. She contends the provision is void and unenforceable as a matter of public

policy and under principles of contract law.

       Among other things, appellant argues the condition precedent should be declared void

because it illegally contracts around an applicable statute. The provision calls for payment of



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$25,000 by the party seeking modification to the other party and states, “[t]he parties expressly

agree that this requirement is contractual in nature and enforceable as a contract, in addition to

any other remedy at law.” Appellant argues the inclusion of this language is contrary to Section

154.124(c) of the Texas Family Code, which states that terms of an agreement concerning child

support are enforceable by all remedies at law, but “are not enforceable as a contract.” TEX.

FAM. CODE ANN. § 154.124(c) (West 2008).

        Texas courts have long recognized that an agreement which violates a valid statute is

illegal and void. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 664 (Tex.

2008) (noting parties may contract as long as agreement does not violate law or public policy);

Woolsey v. Panhandle Refining Co., 116 S.W.2d 675, 678 (Tex. 1938); see Hous. Auth. of El

Paso v. Lira, 282 S.W.2d 746, 748 (Tex. App.—El Paso 1955, writ ref’d n.r.e.) (holding parties

cannot contract in way that modifies or repeals statute).                Though the condition precedent

provision does not explicitly outline support or visitation, it does restrict with the court’s ability

to consider changes to child support. See Woolsey, 116 S.W.2d at 678 (noting contracts that are

either expressly or impliedly prohibited by statute or public policy are not enforceable). In fact,

appellant, in her petition to modify the parent-child relationship, specifically asked for child

support from appellee. Therefore, we agree with appellant that the condition precedent provision

is void because it violates the Family Code provision prohibiting agreements regarding child

support to be enforced as a contract. Accordingly, we hold the trial court erred in granting the

plea in abatement and dismissing appellant’s petition to modify the parent-child relationship. 1




1
 Based on this court’s holding regarding the condition precedent provision being unenforceable as a contract, we
need not address appellant’s public policy argument.

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                                         CONCLUSION

       Based on the foregoing, we reverse and remand the case to the trial court for further

proceedings in accordance with this court’s opinion.

                                                       Marialyn Barnard, Justice




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