                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00058-CV


KENNETH RAY WALDROP                                               APPELLANT

                                       V.

TERESA WALDROP                                                      APPELLEE

                                    ----------

        FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
                  TRIAL COURT NO. 2006-61054-393

                                    ----------

             OPINION ON EN BANC RECONSIDERATION

                                    ----------

      A majority of the court granted Appellant Kenneth Ray Waldrop’s motion

for en banc reconsideration. Accordingly, we withdraw our September 29, 2016

opinion and judgment, and we substitute the following opinion and judgment.

                              I. INTRODUCTION

      We address two primary issues in this appeal.         First, whether the

“Contractual Maintenance” provision in Kenneth and Appellee Teresa Waldrop’s
agreed divorce decree is purely contractual or is spousal maintenance governed

by chapter 8 of the family code.1 For the reasons set forth below, we hold that

the Waldrops’ Contractual Maintenance provision is purely contractual, and we

affirm the trial court’s final order in this regard.    And second, whether 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.   For the reasons set forth below, we answer this query in the

affirmative. We therefore reverse the trial court’s final order in this regard and

remand this case to the trial court for proceedings consistent with this opinion.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      On April 26, 2007, the trial court signed Kenneth and Teresa’s agreed

divorce decree. The agreed decree contained a provision stipulating that it was



      1
       The Waldrops’ agreed divorce decree was entered on April 26, 2007.
Unless otherwise noted, all references in this opinion to chapter 8 of the family
code will be to sections of chapter 8 as they existed on April 26, 2007. See Act
of May 25, 2005, 79th Leg., R.S., ch. 914, § 1, 2005 Tex. Gen. Laws 3146, 3146
(amended 2011) (current version at Tex. Fam. Code Ann. § 8.051 (West Supp.
2017)); Act of May 25, 2005, 79th Leg., R.S., ch. 914, § 1, 2005 Tex. Gen. Laws
3146, 3147 (amended 2011) (current version at Tex. Fam. Code Ann. § 8.054
(West Supp. 2017)); Act of May 28, 2003, 78th Leg., R.S., ch. 1138, § 1, 2003
Tex. Gen. Laws 3231, 3231 (amended 2011) (current version at Tex. Fam. Code
Ann. § 8.055 (West Supp. 2017)); Act of May 22, 2001, 77th Leg., R.S., ch. 807,
§ 1, 2001 Tex. Gen. Laws 1574, 1577 (amended 2011) (current version at Tex.
Fam. Code Ann. § 8.056 (West Supp. 2017)); Act of May 22, 2001, 77th Leg.,
R.S., ch. 807, § 1, 2001 Tex. Gen. Laws 1574, 1577 (amended 2011) (current
version at Tex. Fam. Code Ann. § 8.057 (West Supp. 2017)).

                                         2
enforceable as a contract.2 The Contractual Maintenance provision in the agreed

decree—which is at the heart of this appeal—requires Kenneth to make monthly

payments of $3,000 to Teresa. It provides, in pertinent part:

      Contractual Maintenance

              The Court finds that under the circumstances presented in this
      case, Teresa Waldrop is eligible for maintenance under the
      provisions of Texas Family Code Chapter 8.001 et seq[.] and that
      the parties have agreed that Kenneth Ray Waldrop will pay
      maintenance to Teresa Waldrop as set out below. The parties have
      further agreed that Teresa Waldrop shall have all the rights and
      remedies afforded under the Texas Family Code, Chapter 8.001 et
      seq. Accordingly, Kenneth Ray Waldrop is ordered to pay as
      maintenance the sum of $3,000.00 per month to Teresa Waldrop,
      with the first payment being due on February 1, 2007, and a like
      amount being due the first day of each consecutive month thereafter
      until the earliest of one of the following events occurs:

            1.     death of either Petitioner or Respondent;

            2.     remarriage of Teresa Waldrop;

            3.   further orders of the Court affecting the spousal
      maintenance obligation, including a finding of cohabitation by Teresa
      Waldrop[;]

            4.     [t]he first day of the month following the day that Teresa
      Waldrop becomes eligible to receive and begins to receive her
      portion of the Kimberly Clark pension awarded to her . . . above. In
      this event, Kenneth Ray Waldrop is ORDERED to pay to Teresa

      2
       The “Agreement of Parties” provision states,

      The Court finds that the parties have entered into a written
      agreement as contained in this decree by virtue of having approved
      this decree as to both form and substance. To the extent permitted
      by law, the parties stipulate the agreement is enforceable as a
      contract. The Court approves the agreement of the parties as
      contained in this Final Decree of Divorce.

                                        3
      Waldrop as maintenance the difference each month between
      $3,000.00 and the amount of the benefit received from the Kimberly
      Clark pension, due and payable on the first day of the first month
      immediately following the date that Teresa Waldrop becomes eligible
      to receive and does receive her portion of the Kimberly Clark
      pension and continuing thereafter until the next occurrence of one of
      the events 1–3 above. It is the intent of the parties that the
      $3,000.00 maintenance paid to Teresa Waldrop by Kenneth Ray
      Waldrop be reduced each month in an amount equal to the amount
      of the monthly pension benefit received by Teresa Waldrop from
      Kimberly Clark.

      Approximately six years later, Kenneth initiated litigation concerning the

Contractual Maintenance provision. Kenneth contended that the agreed decree’s

Contractual Maintenance provision imposed chapter 8 spousal maintenance and

was therefore modifiable by the court upon a showing that Kenneth’s

circumstances had materially and substantially changed3 and, that in any event,

he could petition the trial court to modify or terminate his maintenance obligation

for reasons other than the four reasons set forth under paragraph one—either

party’s death, Teresa’s remarriage, a finding of cohabitation by Teresa, or

Teresa’s receipt of payments from the Kimberly Clark pension. Teresa, on the

other hand, argued that the Contractual Maintenance provision was a contractual

provision made outside the family code and was not modifiable by the trial court

except upon the four circumstances set forth under paragraph one. Ultimately,

following a bench trial on Kenneth’s declaratory judgment claim and a




      3
       See Tex. Fam. Code Ann. § 8.057(c).

                                        4
subsequent hearing on attorney’s fees, the trial court signed a final order and

made findings of fact and conclusions of law.

      The trial court declared that the agreed decree’s Contractual Maintenance

provision was purely contractual in nature and not subject to the provisions of

chapter 8 and that the “further orders of the Court” language limited the trial

court’s authority to modify or terminate Kenneth’s maintenance obligation to the

specific circumstances of Kenneth’s or Teresa’s death, Teresa’s remarriage or

cohabitation, or Teresa’s receipt of payments from the Kimberly Clark pension.

The trial court alternatively held that although chapter 8’s “material and

substantial change in circumstances does not apply here,” even if it did, “a

material and substantial change in circumstances was not proven by [Kenneth].”

The trial court ordered that Kenneth continue making payments under the

Contractual Maintenance provision and ordered that he pay Teresa $28,590.53

in attorney’s fees.4

      Kenneth perfected this appeal and raises four issues complaining that the

trial court erred by concluding that the Contractual Maintenance provision was

      4
        The trial court made conclusions of law concerning each declaration.
Conclusion of law 4 states, “The contractual maintenance provision in the Final
Decree of Divorce is contractual.” Conclusion of law 5 states, “Chapter 8 of the
Texas Family Code does not apply to the spousal maintenance in the Final
Decree of Divorce.” And conclusion of law 8 states, in pertinent part, “[T]he
Court alternatively finds that a material and substantial change in circumstance
was not proven by [Kenneth] in order to decrease [his] spousal maintenance
obligation (if such obligation existed).”



                                        5
contractual in nature and was not subject to the provisions of chapter 8 of the

family code, by finding that the Contractual Maintenance provision could not be

modified by further court order except in the four specifically identified

circumstances, by finding that a material and substantial change in his

circumstances had not occurred, and by awarding attorney’s fees to Teresa.

                              III. STANDARD OF REVIEW

      We review declaratory judgments under the same standards as other

judgments and decrees.        Tanglewood Homes Ass’n, Inc. v. Feldman, 436

S.W.3d 48, 65 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); McBride v.

James, No. 02-09-00320-CV, 2011 WL 1103758, at *5 (Tex. App.—Fort Worth

Mar. 24, 2011, pet. denied) (mem. op.).      We look to the procedure used to

resolve the issue below to determine the standard of review on appeal.

Tanglewood Homes Ass’n, 436 S.W.3d at 65–66; McBride, 2011 WL 1103758, at

*5. When a declaratory judgment is entered after a bench trial, we review the

trial court’s conclusions of law de novo. Trinity Drywall Sys., LLC v. Toka Gen.

Contractors, Ltd., 416 S.W.3d 201, 207 (Tex. App.—El Paso 2013, pet. denied);

Rourk v. Cameron Appraisal Dist., 305 S.W.3d 231, 234 (Tex. App.—Corpus

Christi 2009, pet. denied).

      We interpret an agreed divorce decree according to the rules of contract

construction. In re W.L.W., 370 S.W.3d 799, 804 (Tex. App.—Fort Worth 2012,

orig. proceeding [mand. denied]).     Our primary concern when interpreting an

agreed divorce decree is to ascertain and give effect to the intent of the parties

                                        6
as it is expressed in the agreement. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.

1983); Perry v. Perry, 512 S.W.3d 523, 527 (Tex. App.—Houston [1st Dist.]

2016, no pet.). We examine the decree as a whole to harmonize and give effect

to the entire agreement so that none of its provisions will be rendered

meaningless. Coker, 650 S.W.2d at 393; Perry, 512 S.W.3d at 527.

          IV. WHETHER THE TRIAL COURT ERRED BY CONCLUDING THAT
            THE WALDROPS’ CONTRACTUAL MAINTENANCE PROVISION
          IS PURELY CONTRACTUAL AND IS NOT SUBJECT TO CHAPTER 8

      In his first issue, Kenneth argues that the trial court erred by concluding

that the Contractual Maintenance provision is purely contractual and is not

subject to chapter 8.

             A. Contractual Alimony Versus Chapter 8 Maintenance

                                       1. Statutes

      Before 1995, a court-ordered award of post-divorce alimony or spousal

maintenance was impermissible under the statutes and public policy of Texas.

McCollough v. McCollough, 212 S.W.3d 638, 642 (Tex. App.—Austin 2006, no

pet.); Ex parte Casey, 944 S.W.2d 18, 19 (Tex. App.—Houston [14th Dist.] 1997,

orig. proceeding).      Nonetheless, the Texas Supreme Court recognized that

parties could contractually agree to such awards. McCollough, 212 S.W.3d at

642 (citing Francis v. Francis, 412 S.W.2d 29, 31 (Tex. 1967)). “The mere fact

that an agreement to pay alimony might be incorporated into a divorce decree

and explicitly approved by the court did not render it an unenforceable court

order or award of alimony.”      Id.    By enacting chapter 8 of the family code,

                                           7
effective September 1, 1995, however, the legislature authorized courts to award

post-divorce spousal maintenance. Id. at 643. But the legislature strictly limited

the circumstances under which spousal maintenance could be awarded. Id.

      When the Waldrops’ agreed decree was signed, chapter 8 spousal

maintenance could be awarded only if

      (1) the spouse from whom maintenance is requested was convicted
      of or received deferred adjudication for a criminal offense that also
      constitutes an act of family violence under Title 4 and the offense
      occurred:

            (A) within two years before the date on which a suit for
            dissolution of the marriage is filed; or

            (B) while the suit is pending; or

      (2) the duration of the marriage was 10 years or longer, the spouse
      seeking maintenance lacks sufficient property, including property
      distributed to the spouse under this code, to provide for the spouse’s
      minimum reasonable needs, as limited by Section 8.054, and the
      spouse seeking maintenance:

            (A) is unable to support himself or herself through appropriate
            employment because of an incapacitating physical or mental
            disability;

            (B) is the custodian of a child of the marriage of any age who
            requires substantial care and personal supervision because of
            a physical or mental disability makes it necessary, taking into
            consideration the needs of the child, that the spouse not be
            employed outside the home; or

            (C) clearly lacks earning ability in the labor market adequate to
            provide support for the spouse’s minimum reasonable needs,
            as limited by Section 8.054.

Tex. Fam. Code Ann. § 8.051. When the Waldrops’ agreed decree was signed,

an award of spousal maintenance was further limited by sections 8.054 and

                                         8
8.055. Section 8.054 provided that, except in cases of disability, a court could

not order maintenance that remained in effect for more than three years after the

date of the order. Id. § 8.054. And section 8.055 provided that a court could not

order maintenance that required an obligor to pay more than the lesser of $2,500

per month or twenty percent of the spouse’s average monthly gross income. Id.

§ 8.055.

                                  2. Case Law

      When parties agree or stipulate that a maintenance provision set forth in

their divorce decree is enforceable as a contract, absent express language

indicating chapter 8 governs the maintenance provision, courts will enforce the

maintenance provision as a matter of contract law, independent of chapter 8.

See Lee v. Lee, No. 02-14-00064-CV, 2015 WL 601054, at *1 (Tex. App.—Fort

Worth Feb. 12, 2015, no pet.) (mem. op.) (holding chapter 8 did not apply to

agreed decree’s maintenance provision); Ammann v. Ammann, No. 03-09-

00177-CV, 2010 WL 4260955, at *1 (Tex. App.—Austin Oct. 28, 2010, no pet.)

(mem. op.) (same); Kee v. Kee, 307 S.W.3d 812, 813–14 (Tex. App.—Dallas

2010, pet. denied) (same); McCollough, 212 S.W.3d at 647–48 (same).              In

determining whether the parties intended for chapter 8 to apply to an agreed

maintenance provision, courts additionally examine whether the agreed

maintenance provision sets forth the criteria required to trigger chapter 8 spousal

support and imposes a support obligation that is within chapter 8’s limit on the

amount and duration of such support. See Lee, 2015 WL 601054 at *2 (noting

                                        9
that no indication existed that trial court considered all of chapter 8’s factors in

determining maintenance); Ammann, 2010 WL 4260955, at *2 (“The decree

contains no references to the factors the court must consider in determining the

nature, amount, duration, and manner of payments pursuant to chapter 8.”); Kee,

307 S.W.3d at 815 (noting the decree “failed to follow [chapter 8’s] guidelines

with respect to the amount of support and the duration of the support”);

McCollough, 212 S.W.3d at 646 (“Randy’s agreed alimony obligation also would

have violated chapter 8 from its inception” by allowing payments over a period of

ten years in an amount of $5,000 per month). An agreed maintenance provision,

enforceable as a contract, is not subject to chapter 8 merely because it

references chapter 8 or states that a spouse is eligible for spousal maintenance

under chapter 8. See Ammann, 2010 WL 4260955, at *2 (“The mere reference

to family code chapter 8 in a divorce decree does not transform a contractual

alimony obligation into a court-ordered maintenance obligation governed by that

chapter.”); Kee, 307 S.W.3d at 814–15 (holding chapter 8 did not apply to

maintenance provision despite recitation in decree that wife was “eligible for

maintenance” under the family code).      We now apply these principles to the

Waldrops’ Contractual Maintenance provision.




                                        10
     B. Analysis of the Waldrops’ Contractual Maintenance Provision

      Kenneth argues that a plain reading of the divorce decree makes it clear

that the Contractual Maintenance provision provides for chapter 8 spousal

maintenance and not contractual alimony. He points to the fact that the term

“alimony” is never used in the decree, while the term “maintenance” is used

fourteen times. He also points to three references to chapter 8 contained in the

Contractual Maintenance provision—that Teresa was eligible for maintenance

under “Chapter 8.001 et seq[.],” that she would have “all rights and remedies

afforded under . . . Chapter 8.001 et seq[.],” and that “a copy of subchapter E of

chapter 8” was to be attached to the decree—as evidence that the decree

provides for chapter 8 spousal maintenance rather than contractual alimony.

      Teresa counters that the terms of the Contractual Maintenance provision

are “clearly . . . outside the bounds of Chapter 8 maintenance”—an indication

that the divorce decree is governed by contract rather than chapter 8.        She

argues that the duration of the payments contemplated by the decree violates

chapter 8 because it allows for payments to continue for more than the three-

year limit imposed by the version of section 8.054 applicable when she and

Kenneth signed their agreed decree. See Tex. Fam. Code Ann. § 8.054. She

also points to the fact that Kenneth’s payment obligation was $3,000 per month,

which was outside the $2,500 monthly limit imposed by chapter 8 at the time the

parties entered the agreed decree. See id. § 8.055.



                                       11
      The Waldrops’ Contractual Maintenance provision would have violated

chapter 8 from its inception because it required Kenneth to make payments for a

duration longer than the three-year period then permitted under section 8.054

and required him to make monthly payments greater than the $2,500 limit set by

section 8.055. See id. §§ 8.054, 8.055. While the Contractual Maintenance

provision does make three references to chapter 8, these references do not

subject the Contractual Maintenance provision to the terms of chapter 8; indeed,

they cannot because the Contractual Maintenance provision imposes upon

Kenneth a maintenance obligation that exceeds the amount and duration limits of

the then-applicable chapter 8.   See id. §§ 8.054, 8.055; Ammann, 2010 WL

4260955, at *2 (holding maintenance provision not subject to chapter 8 when

payment amount and duration violated chapter 8); Kee, 307 S.W.3d at 815

(same). Kenneth is correct that the Contractual Maintenance provision uses the

term “maintenance,” but the provision’s use of the term “maintenance” and its

nonuse of the term “alimony” is, in the context of the entire provision, mere

nomenclature incapable of altering the substance of the provision. See Lee,

2015 WL 601054, at *1, *3 (holding despite use of term “maintenance” in decree,

payment obligation was not governed by chapter 8); Ammann, 2010 WL

4260955, at *1–3 (same).

      Kenneth attempts to factually distinguish McCollough and Kee, pointing out

that the parties in those cases signed separate contractual agreements for

maintenance or alimony outside of the divorce decree—an agreement incident to

                                      12
divorce and a partition and exchange agreement—while there is no contract

outside of the decree here.      In Lee, we addressed and rejected this same

argument:

      [D]espite Jerry’s attempt to distinguish contractual alimony provided
      in an agreement incident to divorce or partition and exchange
      agreement from the spousal maintenance agreement he entered
      into with Danelle as part of the agreed decree of divorce, that the
      agreed spousal support is part of the decree and not incident to it is
      not relevant to our treatment of the decree as a binding contract. An
      agreed divorce decree, such as the one in this case, is a contract
      subject to the usual rules of contract construction.

2015 WL 601054, at *3 (quotation omitted).            We again decline to draw a

distinction between contractual agreements set forth in a divorce decree and

those incident to, but not set forth in, a divorce decree. See id.; see also Hicks v.

Hicks, 348 S.W.3d 281, 283 (Tex. App.—Houston [14th Dist.] 2011, no pet.)

(“Because the parties entered into an agreed divorce decree, it is treated as a

contract between the parties with the law of contracts governing the interpretation

of the decree’s legal force and meaning.”); Giles v. Giles, 830 S.W.2d 232, 238

(Tex. App.—Fort Worth 1992, no writ) (“[T]here is no reason the separate

contractual agreement between the spouses must be in written form prior to the

trial court’s signing the written judgment—the judgment itself operates as the

written manifestation of the parties’ agreement.”).

      Kenneth also argues that the Contractual Maintenance provision is

governed by chapter 8 because the payment obligation “terminates pursuant to

the factors set forth in [s]ection 8.056 of the Texas Family Code” and because it


                                         13
“reflects the language proposed by the Texas Family Law Practice Manual for

court ordered spousal maintenance.”         But the mere fact that the payment

obligation may terminate pursuant to some of the factors listed in section 8.056,

or that the language contained in the Contractual Maintenance provision may

mirror some of the language used in the Texas Family Law Practice Manual for

court-ordered spousal maintenance, does not convert the parties’ agreement into

something other than a contract.5 Kenneth and Teresa were free to include

selected language from chapter 8 or from a family law practice manual without

automatically converting their Contractual Maintenance provision into chapter 8

spousal maintenance. See 8 ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 36.2

(4th ed. 2000) (“Theoretically, at least, people are free to contract as they

choose, limiting their rights and duties in ways that are unusual or absurd or

unprofitable.”); see also Solar Applications Eng’g, Inc. v. T.A. Operating Corp.,

327 S.W.3d 104, 112 (Tex. 2010) (“[P]arties are free to contract as they

choose.”).6



      5
       The section of the Texas Family Law Practice Manual that Kenneth points
to contains the following language: “[This section] applies only to court-ordered
spousal maintenance. If the parties have agreed to contractual alimony, such
provisions may be part of the final decree of divorce.” [Emphasis in original.]
      6
       Kenneth argues that the Contractual Maintenance provision itself makes
no reference that its provisions are enforceable in contract. But we are to
examine the decree as a whole to harmonize and give effect to the entire
agreement. See Coker, 650 S.W.2d at 393; Perry, 512 S.W.3d at 527. As set
forth previously, the “Agreement of Parties” provision provided that the agreed
decree was enforceable as a contract. The Contractual Maintenance provision’s
                                       14
      Kenneth further argues that certain 2013 amendments to chapter 8 support

his position that the Contractual Maintenance provision is governed by chapter 8.

He points to section 8.101(a-1) and (a-2), which now allow a trial court to

withhold earnings from an obligor “in a proceeding in which there is an

agreement for periodic payments of spousal maintenance under the terms of

[chapter 8] voluntarily entered into between the parties and approved by the

court” and further provides that the trial court may not order income withholding

in an agreed order “for maintenance [that] exceeds the amount of periodic

support the court could have ordered under [chapter 8] or for any period of

maintenance beyond the period of maintenance the court could have ordered

under [chapter 8].” Tex. Fam. Code Ann. § 8.101(a-1), (a-2) (West Supp. 2017).

He also points to section 8.059(a-1), which provides that a trial court may not

enforce by contempt any provision of an agreed order for maintenance that

exceeds the amount or duration of maintenance the court could have ordered

under chapter 8. Id. § 8.059(a-1) (West Supp. 2017) Kenneth argues that these

sections, when read in conjunction with section 8.057’s modification provisions,

support his position that chapter 8 governs the Contractual Maintenance

provision. Alternatively, he argues that sections 8.057, 8.059, and 8.101 allow

for $2,500 of the $3,000 monthly payment obligation to be considered spousal




failure to restate a second time that it is enforceable as a contract is not
controlling.

                                       15
maintenance under chapter 8 and the remaining $500 to be considered

contractual alimony.

      The 2013 additions of section 8.101(a-1) and (a-2) and section 8.059(a-1)

to chapter 8 have no bearing on our construction of the Waldrops’ 2007 agreed

divorce decree. When construing a contract, we look to the overall agreement to

“determine what purposes the parties had in mind at the time they signed it.”

Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 239 (Tex. 2016) (emphasis added)

(internal quotation omitted).   While chapter 8 may now contemplate agreed

orders for spousal maintenance under chapter 8, no such provision existed in

2007 when the parties signed their agreed divorce decree. We therefore decline

to depart from the precedent set by Lee (a case we decided in 2015), Ammann,

Kee, and McCollough. See Lee, 2015 WL 601054, at *1, *3; Ammann, 2010 WL

4260955, at *2; Kee, 307 S.W.3d at 815; McCollough, 212 S.W.3d at 647–48.

      Applying controlling rules of construction and existing case law in

conducting our de novo review of the trial court’s conclusions of law numbers 4,

5, and 8, we hold that the trial court did not err by concluding that the Contractual

Maintenance provision was purely contractual in nature and not subject to

chapter 8. See Trinity Drywall Sys., 416 S.W.3d at 207; Rourk, 305 S.W.3d at

234. We overrule Kenneth’s first issue.




                                          16
  V. WHETHER THE TRIAL COURT ERRED BY CONCLUDING THAT THE WALDROPS’
CONTRACTUAL MAINTENANCE PROVISION CANNOT BE MODIFIED BY FURTHER COURT
             ORDER ABSENT THE FOUR LISTED CIRCUMSTANCES

      In his second issue, Kenneth argues that even if the Contractual

Maintenance provision is purely a matter of contract and chapter 8 does not

apply to it, the trial court still erred by concluding that the maintenance provision

could not be modified by further court order absent one of the four specific

circumstances set forth under paragraph one of the provision.

     A. The Further-Orders Language and the Trial Court’s Conclusion

      The Contractual Maintenance provision states that Kenneth is to pay

Teresa $3,000 per month beginning on February 1, 2007, and continuing until the

earliest of one of the following events occurs: (1) either party’s death; (2)

Teresa’s remarriage; (3) “further orders of the Court affecting the spousal

maintenance obligation, including a finding of cohabitation by Teresa”; and (4)

when Teresa becomes eligible to receive and begins to receive her portion of the

Kimberly Clark pension awarded in the decree, at which time, Kenneth is to pay

monthly to Teresa the difference between $3,000 and the amount of the monthly

benefit Teresa receives from the Kimberly Clark pension.

      In its final order, the trial court declared the following regarding the phrase

“further orders of the Court” contained in the Contractual Maintenance provision:

      “[F]urther orders of the Court” is interpreted to refer only to the three
      instances of termination as stated, specifically upon the death of
      either [Teresa] or [Kenneth], upon the remarriage of [Teresa], or
      upon the cohabitation of [Teresa]; it refers only to one instance of
      modification of the amount of support, and that is to the equal offset

                                         17
      reduction provided by the Kimberly Clark Pension upon the
      beginning of [Teresa] receiving her benefit.7

                B. Application of Rules of Contract Construction
                to the Waldrops’ Contractual Maintenance Provision

      Having held that the Contractual Maintenance provision in the Waldrops’

agreed divorce decree is purely contractual, we apply the rules of contract

construction to determine whether the Contractual Maintenance provision and its

further-orders-of-the-court language authorizes the trial court to modify or

terminate Kenneth’s maintenance obligation for reasons in addition to the

specifically listed reasons under paragraph one of the Contractual Maintenance

provision—either party’s death, Teresa’s remarriage, a finding of cohabitation by

Teresa, or Teresa’s receipt of payments from the Kimberly Clark pension. See,

e.g., McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984) (op. on reh’g)

(construing marital property settlement agreement though incorporated into a

final divorce decree pursuant to rules of contract construction); Perry, 512

S.W.3d at 527 (“We interpret an agreed divorce decree according to the rules of

contract construction.”).

      When construing a written contract, intermediate appellate courts give

effect to the true intentions of the parties as expressed in the agreement. El

Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 805 (Tex.

2012).    In so doing, we consider the entire written contract and attempt to


      This language also appears in the trial court’s findings of fact and
      7

conclusions of law.

                                       18
harmonize and to give effect to all of the provisions of the contract by analyzing

the provisions with reference to the whole agreement. Frost Nat’l Bank v. L & F

Distribs., Ltd., 165 S.W.3d 310, 311−12 (Tex. 2005). We “construe contracts

‘from a utilitarian standpoint bearing in mind the particular business activity

sought to be served’ and ‘will avoid when possible and proper a construction

which is unreasonable, inequitable, and oppressive.’”      Id. (quoting Reilly v.

Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987)). “No single provision

taken alone will be given controlling effect; rather, all the provisions must be

considered with reference to the whole instrument.”      Innovate Tech. Sols. v.

Youngsoft, Inc., 418 S.W.3d 148, 151 (Tex. App.—Dallas 2013, no pet.) (quoting

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003)). We construe

the decree as a whole to harmonize and to give effect to the entire agreement so

that none of its provisions will be rendered meaningless. Howard v. Howard, 490

S.W.3d 179, 184 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

      On appeal, Kenneth and Teresa both contend that the further-orders-of-

the-court language of the Contractual Maintenance provision is unambiguous.

Kenneth argues that the phrase indicates that “the maintenance amount can be

modified or reduced by the Court.” Teresa, on the other hand, argues that the

phrase “was only meant to speak of the four already enumerated conditions by

which the payments could be terminated or reduced.” An ambiguity does not

arise simply because the parties offer conflicting interpretations.    See Grain

Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex. 1997). An ambiguity

                                       19
exists only if the contract language is susceptible to two or more reasonable

interpretations. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462,

465 (Tex. 1998).

      Agreed contractual maintenance provisions will not be terminated or

modified by courts except as provided for in the agreement. See, e.g., Lee, 2015

WL 601054, at *3 (holding contractual maintenance provision in agreed decree,

which provided that husband’s maintenance obligation terminated upon wife’s

death or remarriage, did not terminate on wife’s cohabitation); Ammann, 2010

WL 4260955, at *1–2 (holding contractual maintenance provision in agreed

decree, which provided that husband’s maintenance obligation terminated upon

date certain or wife’s death, did not terminate on wife’s cohabitation); see also

Kee, 307 S.W.3d at 814–15 (holding that because contractual maintenance

agreement did not authorize income withholding from husband, court could not

order it).   In contrast, however, when an agreed contractual maintenance

provision does provide for court termination or modification of the contractual

maintenance by limiting continuance of the agreed-upon maintenance “until

further order of the court,” court modification or termination of the agreement is

authorized on common law or statutory grounds unless the agreement elsewhere

expressly prohibits it.   See McCollough, 212 S.W.3d at 646–47 (recognizing

agreed contractual maintenance provision authorized judicial modification via bill

of review proceeding); In re Marriage of Udis, 780 P.2d 499, 502 (Colo. 1989)

(holding agreed maintenance provision, which provided for “readjust[ment] as

                                       20
agreed between the parties or determined by the Court,” authorized trial court to

modify contractual maintenance provision on ground of unconscionability); Pohl

v. Pohl, 15 N.E.3d 1006, 1013–14 (Ind. 2014) (construing the phrase “until further

order of the court” as making a contractual maintenance agreement “modifiable

by the [agreement’s] own terms, even though it would not be otherwise”); see

also Hidalgo v. Hidalgo, No. 05-06-00966-CV, 2011 WL 1797621, at *1 (Tex.

App.—Dallas May 10, 2011, no pet.) (mem. op. on remand) (noting that although

agreement provided, “[t]his spousal support shall continue on the first day of the

month and thereafter until the death of either party, or further Order of the

Court[,]” it also stated that the contract’s provisions for spousal support “shall not

be subject to modification or revocation by any court, with the exception of Wife’s

death”).

       In Pohl, after recognizing the policy considerations on both sides of the

issue, the Indiana Supreme Court ruled that even in cases in which the trial court

could have unilaterally ordered a maintenance award identical to the one agreed

to by the parties, nonetheless, the court would presume the parties intended their

agreement to be final and nonmodifiable unless they specifically provided

otherwise.   15 N.E.3d at 1013–14.        The Pohl court held, however, that a

contractual maintenance provision requiring payments to continue “until further

order of the court” or “agreement of the parties” made the provision modifiable by

its own terms. Id. at 1014. The Pohl court explained,



                                         21
      But here, the Addendum does contain precisely such a provision,
      calling for Barbara’s payments to continue “until further order of the
      court or agreement of the parties” (emphasis added). Because
      “further order of the court” is expressed in the alternative to
      “agreement of the parties,” we should construe the contract in a way
      that gives each term independent meaning, rather than rendering
      one surplusage. E.g., Whitaker v. Brunner, 814 N.E.2d 288, 294
      (Ind. Ct. App. 2004), trans. denied (“We read the contract as a whole
      and will attempt to construe the contractual language so as not to
      render any words, phrases, or terms ineffective or meaningless.”).
      And here, we would be hard pressed to ascribe any independent
      meaning to the “further order of the court” provision unless it serves
      the same purpose as similar language in the incapacity maintenance
      statute, which permits modification of such awards by making them
      “subject to further order of the court.” I.C. § 31–15–7–2(1); Haville v.
      Haville, 825 N.E.2d 375, 378 n.2 [(Ind. 2005)].           Accordingly,
      maintenance under the Addendum is modifiable by the Addendum’s
      own terms, even though it would not be otherwise.

Id.; see John J. Michalik, Annotation, Divorce: Power of Court to Modify Decree

for Alimony or Support of Spouse Which Was Based on Agreement of Parties, 61

A.L.R.3d 520 (1975).

      Turning to the express language used by Kenneth and Teresa in their

Contractual Maintenance provision, they agreed that Kenneth’s obligation could

cease “upon further orders of the Court affecting the spousal maintenance

obligation, including a finding of cohabitation by Teresa.” If Kenneth and Teresa

had intended to limit the modification and termination of Kenneth’s contractual

maintenance payments to only either party’s death, Teresa’s remarriage,

Teresa’s cohabitation, or when Teresa begins receiving the Kimberly Clark

pension, they could have easily done so by simply omitting the words “further

orders of the Court affecting the spousal maintenance obligation, including a


                                        22
finding of.” See, e.g., Hidalgo, 2011 WL 1797621, at *1 (addressing contractual

maintenance provision that was nonmodifiable because it stated it would “not be

subject to modification or revocation by any court, with the exception of Wife’s

death”); see also Croom v. Croom, 406 S.E.2d 381, 382 (S.C. Ct. App. 1991)

(addressing contractual maintenance provision that was nonmodifiable because

it stated that it was “not modifiable by the parties or any court without written

consent of the Husband and Wife”). The Waldrops’ Contractual Maintenance

provision contains no language making it expressly nonmodifiable despite the

“further orders of the court” language.

      Because Kenneth and Teresa used the language “further orders of the

Court affecting the spousal maintenance obligation, including a finding of” as one

possible end point for Kenneth’s $3,000 monthly maintenance obligation, we

must give this language some effect; we cannot construe the Contractual

Maintenance provision as if this language did not exist.8 See Philadelphia Indem.

Ins. Co. v. White, 490 S.W.3d 468, 477 (Tex. 2016) (“[W]e strive to construe

contracts in a manner that avoids rendering any language superfluous.”). And

here, we would be hard pressed to ascribe any independent meaning to this

language unless it authorizes the trial court to sign an order modifying Kenneth’s




      8
        Teresa’s interpretation of the Contractual Maintenance provision treats
this language as nonexistent, as if cohabitation is the only term in this listed
circumstance supporting modification or termination of Kenneth’s obligation.

                                          23
maintenance obligation in some respect. See Coker, 650 S.W.2d at 393; Perry,

512 S.W.3d at 527; see also Pohl, 15 N.E.3d at 1013–14.

      This construction of the Waldrops’ Contractual Maintenance provision is

consistent with the provision’s “including a finding of cohabitation by Teresa”

language. [Emphasis added.] General rules of contract construction provide that

the terms “includes” and “including” are terms of enlargement and not of

limitation or exclusive enumeration, and the use of those terms does not create a

presumption that components not expressed are excluded. See Tex. Gov’t Code

Ann. § 311.005(13) (West 2013). The language used by Kenneth and Teresa in

their Contractual Maintenance provision provides that Kenneth’s $3,000 monthly

maintenance obligation continues “until the earliest of one of the following events

occurs” and includes in the list of events “further orders of the Court affecting the

spousal maintenance obligation, including a finding of cohabitation by Teresa.”

[Emphasis added.]

      In summary, the language chosen by the parties—that “Kenneth Ray

Waldrop is ordered to pay . . . maintenance . . . until the earliest of one of the

following events occurs: . . . 3. further orders of the Court affecting the spousal

maintenance obligation, including a finding of cohabitation by Teresa Waldrop”—

has a certain and definite legal meaning:           that the parties agreed and

contemplated that the payment obligation under the Contractual Maintenance

provision could be modified by a subsequent, further order of the trial court. See

Coker, 650 S.W.2d at 393; Perry, 512 S.W.3d at 528; see also Pohl, 15 N.E.3d at

                                         24
1015 (“If divorcing parties want to make judicial modification available for their

maintenance agreements, they must say so in their contract—as the parties did

here.”).   This language is not ambiguous; it clearly vests the trial court with

authority to subsequently judicially modify Kenneth’s payment obligation under

the Contractual Maintenance provision. See Coker, 650 S.W.2d at 393; Perry,

512 S.W.3d at 528; see also Pohl, 15 N.E.3d at 1015.           Therefore, although

Kenneth’s declaratory judgment action pleaded for clarification of “the rights and

obligations of both parties, to provide a date certain of when the maintenance

obligation ends, or alternatively, to define the criteria for terminating or reducing

the maintenance obligation,” the trial court did not address this aspect of

Kenneth’s declaratory judgment action because it erroneously determined that

the Contractual Maintenance provision “refers only to one instance of

modification of the amount of support, and that is to the equal offset reduction

provided by the Kimberly Clark Pension upon the beginning of [Teresa] receiving

her benefit.” Because the Contractual Maintenance provision can be modified by

further court order absent either party’s death, Teresa’s remarriage, Teresa’s

cohabitation, or when Teresa begins receiving the Kimberly Clark pension, we

sustain Kenneth’s second issue.

      Because we sustain Kenneth’s second issue, we will remand this case

back to the trial court for a determination of whether Kenneth’s maintenance

obligation should be modified or terminated by further orders of the court. We

leave it to the trial court’s discretion, as did the parties in the Contractual

                                         25
Maintenance Provision, to determine whether Kenneth’s maintenance obligation

should be terminated or modified and to determine the amount, if any, of a

modification.9 See, e.g., Marriage of Udis, 780 P.2d at 502 (explaining language

in contractual maintenance provision authorized judicial modification on ground

of unconscionability); Pohl, 15 N.E.3d 103–14 (explaining language in contractual

maintenance provision authorized judicial modification on same grounds as

incapacity maintenance statute); Schwartz v. Schwartz, 247 S.W.3d 804, 806

(Tex. App.—Dallas 2008, no pet.) (explaining language in contractual

maintenance provision authorized judicial modification upon consent of the


      9
        We share some of the concerns and sentiments expressed in the
concurring and dissenting opinions. We would like to assist the trial court by
enunciating criteria for its consideration in whether to terminate or to modify
Kenneth’s maintenance obligation. But, although Kenneth’s pleadings in the trial
court expressly sought such a declaration, the trial court correctly did not rule on
it. The Uniform Declaratory Judgments Act gives the trial court no power to pass
upon hypothetical or contingent situations or to determine questions not then
essential to the decision of an actual controversy, even though such questions
may in the future require adjudication. See, e.g., Riner v. City of Hunters Creek,
403 S.W.3d 919, 922 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Because
the trial court declared that “further orders of the Court” could be entered only
upon either party’s death, Teresa’s remarriage, a finding of cohabitation by
Teresa, or Teresa’s receipt of payments from the Kimberly Clark pension, it had
no power to pass on the hypothetical, contingent situation of what equitable or
legal criterion it might apply if the “further orders of the Court” language did
authorize it to terminate or modify Kenneth’s maintenance obligation. Because
the trial court did not address this aspect of Kenneth’s request for declaratory
relief, because the trial court’s judgment does not rule on it, because the trial
court made no findings of fact or conclusions of law on it, and because the
parties did not brief it on appeal, it is simply not teed up for our disposition in this
appeal. Therefore, we decline to address it. See Tex. Civ. Prac. & Rem. Code
Ann. § 37.010 (West 2015) (providing that declaratory judgments are reviewed
under the same standards as other judgments).

                                          26
parties or upon a showing of fraud, accident, or mutual mistake of fact);

McCollough, 212 S.W.3d at 647 (explaining language in contractual maintenance

provision authorized judicial modification via bill of review).

              VI. WHETHER THE TRIAL COURT ERRED BY CONCLUDING
                   THAT CHAPTER 8’S STANDARD WAS NOT MET

      In his third issue, Kenneth argues that the trial court erred by concluding, in

the alternative, that if chapter 8 applied, then under chapter 8 Kenneth had not

shown a material and substantial change in his circumstances as required to

trigger modification of his $3,000 monthly maintenance obligation.10 See Tex.

Fam. Code Ann. § 8.057(c) (providing that trial court may modify order or portion

of a decree providing for maintenance on a proper showing of a material and

substantial change in circumstances).          We have held that the Waldrops’

Contractual Maintenance provision is not subject to chapter 8. Therefore, the

trial court’s alternative holding applying chapter 8 was in error.      We sustain

Kenneth’s third issue.



      10
        The trial court’s conclusion of law number 8 states:

      Although the Court interprets that the Final Decree contains
      provisions regarding contractual alimony, and not spousal
      maintenance as defined by Chapter 8 of the Texas Family Code, the
      Court alternatively finds that a material and substantial change in
      circumstances was not proven by [Kenneth] in order to decrease
      [Kenneth’s] spousal maintenance obligation (if such obligation
      existed).

Conclusion of law 8 is not supported by any findings of fact.

                                          27
                    VII. WHETHER THE TRIAL COURT ERRED BY
                     AWARDING ATTORNEY’S FEES TO TERESA

      In his fourth issue, Kenneth argues that the trial court erred by awarding

attorney’s fees to Teresa. Because we have sustained Kenneth’s second and

third issues and because we will reverse in part the trial court’s final order on

Kenneth’s declaratory judgment action, we likewise reverse the trial court’s

award of attorney’s fees to Teresa and remand that issue back to the trial court.

See Grohman-Kahlig v. Kahlig, No. 04-07-00468-CV, 2008 WL 5377704, at *1

(Tex. App.—San Antonio Dec. 17, 2008, no pet.) (mem. op.) (op. on reh’g)

(“[B]ecause we reverse the portion of the trial court’s judgment granting the

declaratory relief, we also reverse the award of attorney’s fees and remand the

cause to determine, in part, what award of attorney’s fees, if any, is equitable and

just in light of our holdings.”) (internal quotation omitted); SAVA Gumarska in

Kemijska Industria D.D. v. Advanced Polymer Scis., Inc., 128 S.W.3d 304, 324

(Tex. App.—Dallas 2004, no pet.) (“[W]hen we reverse a declaratory judgment

and the trial court awarded attorney’s fees to the party who prevailed at trial, we

may remand the attorney’s fee award for reconsideration in light of our

disposition on appeal.”). We sustain Kenneth’s fourth issue.

                                VIII. CONCLUSION

      Having overruled Kenneth’s first issue, we affirm the portion of the trial

court’s final order on Kenneth’s declaratory judgment declaring the Contractual

Maintenance provision to be purely contractual.      Having sustained Kenneth’s


                                        28
second, third, and fourth issues, we reverse the portion of the trial court’s final

order on Kenneth’s declaratory judgment declaring that the “further orders of the

court, including” language does not authorize the trial court to modify the

Contractual Maintenance provision, we reverse the trial court’s alternative

declaration that chapter 8 applies, and we reverse the award of declaratory-

judgment attorney’s fees to Teresa. We remand this case back to the trial court

for a determination of whether Kenneth’s maintenance obligation should be

modified or terminated by further orders of the trial court and to determine an

award of attorney’s fees, if any, for either of the parties.



                                                      /s/ Sue Walker
                                                      SUE WALKER
                                                      JUSTICE
EN BANC11

SUDDERTH, C.J., filed a dissenting opinion in which PITTMAN, J., and LEE
ANN DAUPHINOT (Senior Justice, Retired, Sitting by Assignment) join.

MEIER, J., filed a concurring opinion.

BIRDWELL, J., joins Parts I-IV of the majority opinion—and Part V, with the
exception of the disposition—but 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.

DELIVERED: June 7, 2018


      11
      The constitution of the en banc court for this appeal consists of all
members of the court and Senior Justice Lee Ann Dauphinot and Justice
Rebecca Simmons (sitting by assignment). See Tex. R. App. P. 41.2(a).

                                          29
