Affirmed and Majority and Concurring Opinions filed April 30, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00058-CV

                  WILLIAM WADE BARTLETT, Appellant
                                         V.

                       LORI LEE BARTLETT, Appellee

                    On Appeal from the 309th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-55541

                     MAJORITY                 OPINION

      Appellee Lori Lee Bartlett sued appellant William Wade Bartlett for breach
of contract after the couple divorced pursuant to an agreed decree and William
refused to reimburse Lori for their son’s college expenses. After a bench trial, the
court awarded Lori damages for the amounts she spent on their son’s college
expenses during the son’s first semester, as well as attorney’s fees. William
challenges the trial court’s judgment in five issues, contending that the trial court
abused its discretion by awarding Lori the college expenses because (1) the
college-expense provision of the decree is void; (2) the college-expense provision
is not enforceable as a contract; (3) enforceability of the provision is precluded by
statute; (4) William’s performance is excused because his son committed the first
material breach by failing to maintain a cumulative “C” grade point average; and
(5) the trial court’s award of health insurance and uninsured healthcare expenses is
precluded by statute.

      We overrule William’s first, second, third, and fifth issues because the trial
court correctly concluded that the college-expense provision is not child support
under the Family Code. We overrule William’s fourth issue because William
waived this defense, and regardless, the record supports a deemed finding that any
breach was not material.

                                     I.      BACKGROUND

      Lori and William signed an agreed final decree of divorce. They had two
children of the marriage, an elder son and younger daughter. In Part 7 of the
decree, “Conservatorship and Support,” under a sub-part labeled “Child Support,”
William was ordered to pay Lori $1,800 per month until one of several conditions
was met and then $1,500 per month until another condition was met. 1

      Part 8 of the decree, “Division of Marital Estate,” addressed the properties
and debts of Lori and William, the use and sale of the familial residence,
      1
          Those conditions are as follows:
      1. any child reaches the age of eighteen years, provided that, if the child is fully
         enrolled in an accredited secondary school in a program leading toward a high
         school diploma or enrolled in courses for joint high school and junior college
         credit pursuant to Section 130.008, Education Code, the periodic child-support
         payments shall continue to be due and paid until the end of the month in
         which the child graduates;
      2. any child marries;
      3. any child dies
      4. any child’s disabilities are otherwise removed for general purposes; or
      5. further order modifying this child support.
                                               2
contractual alimony, life insurance, federal income taxes, and “Education Beyond
High School.” Under the “Education Beyond High School” provision, the parties
agreed as follows:

        It is ordered and decreed that William Wade Bartlett shall pay 100%
        of all reasonable education expenses incurred to send each child either
        to college or to technical, vocational, or business school of his
        approval, provided the child is a full-time student and maintains at
        least a “C” or equivalent grade point average toward the completion
        of either a college bachelor’s degree or a technical, vocational, or
        business school diploma. This obligation includes tuition, activities
        fees, laboratory fees, books, room and board, health insurance and
        related uninsured healthcare expenses, college dues and expenses, and
        other charges normally related to such education. This obligation may
        be enforced by the parties or the child.
        The son began college in August 2012. Lori sued William in September
2012 for breach of contract because William refused to pay for the son’s college
expenses for the Fall 2012 semester. Initially, Lori paid for the college expenses.
Then, William paid the tuition for the Spring and Summer 2013 semesters. The
trial court admitted Plaintiff’s Exhibit 7, titled “Amounts Paid by Parties for 2012-
2013 School Semester,” which itemized the expenses as follows:

Amounts Paid by Lori Bartlett, 2012-2013        Amounts Paid by Wade Bartlett, 2012-2013
Application Fees for Trinity    $2,688.40       Tuition Paid 12/7/2012        $10,130.99
Tuition Fall, Paid 8/3/2012     $2,904.53
Tuition Fall, Paid 9/3/2012     $2,904.53
Tuition Fall, Paid 10/4/2012    $2,904.53
Tuition Fall, Paid 11/5/2012      $650.00
Textbooks for Fall                $350.00
Parking Pass for Fall              $73.00
Move-In Expenses                $1,470.52
Dorm Furnishings                  $821.99
Textbooks for Spring              $350.00
Parking Pass for Spring            $73.00

Total                          $15,190.50       Total                         $10,130.99



                                            3
       The son testified that after the Spring 2013 semester, his cumulative grade
point average (GPA) dropped below a “C” average to 1.929. But after finishing
the Summer 2013 semester, his cumulative GPA was at least a “C” average.

       The trial court signed a final judgment in Lori’s favor, finding that William
breached the college-expense provision of the agreed decree and that the son’s
“grade point average for his freshman year was at least a ‘C’ average.” The court
ordered William to reimburse Lori for the amounts she paid “per Exhibit P-7,
attached hereto as Appendix 2, and incorporated herein by reference as though
fully set forth herein.” Upon William’s request, the court signed findings of fact
and conclusions of law, awarding Lori $15,190.50. The court concluded that the
college-expense provision was “not a provision for child support under Chapter
154 of the Texas Family Code.”             The court also concluded that “the parties
intended the provision to be enforceable as a contract, as evidenced by their
signatures and agreement.” 2 William appealed.

                                  II.     CHILD SUPPORT

       William’s first, second, third, and fifth issues on appeal are premised on the
notion that the college-expense provision is one for “child support.” However,
following binding precedent from this court, we hold that the trial court did not
abuse its discretion by concluding that the son’s college expenses are not child
support. First we explain that the college expenses are not child support. Then we
address each of William’s issues in turn.




       2
         In Conclusions of Law Nos. 5, 6, and 7, the trial court rejected William’s defenses of
unclean hands, unenforceable order, and failure of condition precedent, respectively. The trial
court did not address William’s argument, raised for the first time in his motion for new trial,
that “any alleged contract was breached” due to the son’s failure to maintain a “C” average.

                                               4
A.     College Expenses Are Not Child Support

       In the context of determining venue, this court has held that a “payment
which is not to be made until after the child reaches the age of 18 is not child
support.” Busbey v. Busbey, 619 S.W.2d 472, 475 (Tex. Civ. App.—Houston
[14th Dist.] 1981, no writ) (holding that the adult son’s claim for an $800 money
judgment was not a claim for child support when it was based on the father’s
failure to release the amount of a savings account to the son when he turned 18,
pursuant to the marriage settlement agreement). Last year, the Dallas Court of
Appeals reaffirmed this understanding of the Family Code: “Child support, by
definition, applies only to a child under the age of 18 years who has not yet
graduated from high school or a high-school equivalent program.” In re W.R.B.,
No. 05-12-00776-CV, 2014 WL 1008222, at *4 (Tex. App.—Dallas Mar. 17,
2014, pet. denied). The court distinguished child support from “post-majority
support,” which “applies only to a non-disabled child who is 18 years of age or
older and is no longer enrolled in high school or a high-school equivalent
program.”       Id. (citing Tex. Fam. Code Ann. §§ 154.001(a), 154.002(a),
154.006(a)). The court held unequivocally that “post-majority support is not child
support.” Id. Consequently, the current version of Section 154.124(c), which
prohibits enforcement of child support by a breach of contract action,3 did not


       3
          Section 154.124 provides that parties may enter into a written agreement for child
support, and if the agreement is in the child’s best interest, the court shall render an order in
accordance with the agreement. See Tex. Fam. Code Ann. § 154.124(a)–(b). Paragraph (c)
currently provides, “Terms of the agreement pertaining to child support in the order may be
enforced by all remedies available for enforcement of a judgment, including contempt, but are
not enforceable as a contract.” Id. § 154.124(c). The version of the statute applicable to the
Bartletts’ agreed decree, however, read as follows: “Terms of the agreement in the order may be
enforced by all remedies available for enforcement of a judgment, including contempt, but are
not enforceable as contract terms unless provided by the agreement.” Act of May 20, 2003,
78th Leg., R.S., ch. 480, § 1, 2003 Tex. Gen. Laws 1747, 1747 (emphasis added).

                                               5
apply to the mother’s claim for post-majority expenses (such as college expenses).
See id. at *1, *4.

      William relies heavily on the Texas Supreme Court’s decisions in Elfeldt
and Bruni.     However, the court in those cases applied Section 154.124(c)’s
predecessor statute to post-majority payments that were continuations of
preexisting child support obligations. See Bruni v. Bruni, 924 S.W.2d 366, 367
(Tex. 1996) (applying predecessor statute when the parties entered into an
agreement for child support to continue until each child reached the age of twenty-
one; agreement itself was enforceable as a contract); Elfeldt v. Elfeldt, 730 S.W.2d
657, 658 (Tex. 1987) (applying predecessor statute to an “agreed child support
modification order,” which continued the father’s periodic child support payments
until the children completed four years of college; agreed order was not
enforceable as a contract).     Those types of orders for continued support are
different from the college-expense provision here, which was not included in the
“child support” part of the decree. William’s periodic child support payments
terminate under separate and distinct terms, whereas the college-expense provision
was an independent contractual promise included as part of the “Division of
Marital Estate.”

      William also relies on an Amarillo Court of Appeals decision that involved a
materially different decree. See Huffines v. McMahill, No. 07-10-00029-CV, 2010
WL 2836980 (Tex. App.—Amarillo July 20, 2010, no pet.) (mem. op.). Under the
agreed decree’s “Support” provision, the trial court ordered that “neither party is to
pay child support,” but the decree directed the father to provide health insurance
and sums for clothing, sports activity fees, school fees, future vehicle needs, and
half of the child’s unreimbursed medical expenses and college tuition. See id. at
*1. The father later refused to pay for half of the child’s college tuition, and the

                                          6
mother sued for breach of contract. Id. Of key importance to the Amarillo Court’s
conclusion that the college-expense provision was child support, the provision was
found in the “support” section of the decree and various expenses were listed in
lieu of periodic payments of support. See id. at *2. Unlike Huffines, the Bartletts’
decree included a separate section for child support that required William to make
periodic payments, and the college-expense provision was part of the decree’s
section regarding division of the marital estate.

      Finally, William argues for the first time in his reply brief on appeal that
Lori’s filing of a post-judgment petition for enforcement was a judicial admission
that she sought collection of a child support obligation. William waived this
argument by his failure to object to the introduction of contrary evidence at trial.
See, e.g., Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983)
(“The party relying on his opponent’s pleadings as judicial admissions of fact,
however, must protect his record by objecting to the introduction of evidence
contrary to that admission of fact and by objecting to the submission of any issue
bearing on the fact admitted.”); Lentz Eng’g, L.C. v. Brown, No. 14-10-00610-CV,
2011 WL 4449655, at *2 (Tex. App.—Houston [14th Dist.] Sept. 27, 2011, no
pet.) (mem. op.) (party waived judicial admission argument by failing to object to
the admission of evidence contrary to the alleged judicial admission). He also
waived the issue by failing raise it in his opening brief on appeal. See Priddy v.
Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied) (arguments raised for first time in reply brief are waived); see also
Cameron Cnty. v. Velasquez, 668 S.W.2d 776, 784 (Tex. App.—Corpus Christi




                                          7
1984, writ ref’d n.r.e.) (argument about judicial admission raised for first time in
motion for rehearing was waived). 4

       In sum, the trial court correctly concluded that the college-expense provision
in this case is not for child support, and therefore, the provision is enforceable by
contract regardless of Section 154.124(c) of the Family Code.

B.     Not a Void Order

       In his first issue, William contends the trial court abused its discretion by
enforcing a “void order” for support of a non-disabled child who was over eighteen
years old and had graduated from high school. William contends that the order or
agreement in this case violates the current version of Section 154.124(c), which
prohibits the enforcement of child support by contract. See Tex. Fam. Code Ann.
§ 154.124(c). As such, William argues the contract is void. See, e.g., In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 129–30 (Tex. 2004) (“As a rule,
parties have the right to contract as they see fit as long as their agreement does not
violate the law or public policy.”).

       We held above that the college-expense provision is not an agreement for
child support. Accordingly, Section 154.124(c) is inapplicable. 5

       William’s first issue is overruled.


       4
          Of course, Lori’s post-judgment petition for enforcement was not a live pleading at the
time of trial in this breach of contract action. William has not cited any authority, and this court
has found none, to support the notion that a party can judicially admit facts in a post-judgment
pleading (seeking enforcement of a prior final judgment) that would operate to undermine the
trial court’s prior judgment.
       5
          Further, even if the college-expense provision was one for child support, the 2003
amendment included a savings clause that made the amendment prospective only. See Act of
May 20, 2003, 78th Leg., R.S., ch. 480, § 2, 2003 Tex. Gen. Laws 1747, 1747. The prior version
of the statute, applicable to the Bartletts’ agreed decree, allowed child support agreements to be
enforceable by contract. See id. § 1; Bruni, 924 S.W.2d at 367–68.

                                                 8
C.    Elfeldt/Bruni Test Not Applicable

      In his second issue, William contends the trial court abused its discretion by
enforcing the agreed decree as a contractual agreement because it “fails the
Elfeldt/Bruni test.” When there is an agreed order or judgment providing for child
support and no separate written agreement between the parties, as here, then the
version of Section 154.124(c) applicable to the Bartletts 6 required “that the trial
court’s order provide for enforceability.” Bruni, 924 S.W.2d at 367. Elfeldt held
that the statute required the order or decree to “expressly provide . . . that its terms
are enforceable as contract terms.” Elfeldt, 730 S.W.2d at 657.

      However, as explained above, the Bartletts’ college-expense provision is not
an agreement for child support. Thus, we do not apply the Elfeldt/Bruni test or
Section 154.124(c).

      William’s second issue is overruled.

D.    Section 154.124(c) Not Applicable

      In his third issue, William contends the trial court abused its discretion by
enforcing the decree as a contract because enforcement is precluded by the current
version of Section 154.124(c), which states that child support is not enforceable by
contract. However, as explained above, the Bartletts’ college-expense provision is
not an agreement for child support. Thus, we do not apply Section 154.124(c).7

      William’s third issue is overruled.




      6
          See supra note 3.
      7
          See also supra note 5.

                                            9
E.    Health Insurance and Uninsured Health Care Expenses Not Child
      Support
      In his fifth issue, William contends the trial court lacked statutory authority
to order him to pay for health insurance coverage and uninsured health care
expenses in connection with the “Education Beyond High School” provision
because, in general, “medical support” is considered “child support” under the
Family Code. See Tex. Fam. Code Ann. § 154.183(a)(2). However, as explained
above, the Bartletts’ college-expense provision is not an agreement for child
support.

      Further, even if health insurance and uninsured health care expenses were
child support as a matter of law, we note that Lori did not recover any damages for
William’s failure to pay health insurance or uninsured health care expenses. Thus,
the trial court’s conclusion that these expenses were not child support did not
probably cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)
(no judgment may be reversed on appeal on the ground that the trial court made an
error of law unless the court of appeals concludes that the error probably caused
the rendition of an improper judgment).

      William’s fifth issue is overruled.

                         III.   FIRST MATERIAL BREACH

      In his fourth issue, William contends the trial court abused its discretion by
failing to find that a material breach of the contract occurred when the adult son
failed to maintain a cumulative “C” GPA. Accordingly, William contends that he
is “excused and discharged from further performance” under the contract: “when
the adult son’s GPA dropped below a ‘C’ average, the remaining terms of the
contract were not subject to enforcement because it constituted a material breach.”


                                            10
       Lori contends appellant waived this issue by not obtaining or requesting a
finding on the issue. We agree. “[A] party asserting affirmative defenses in trial
before the court must request findings in support of such a defense in order to
avoid waiver on appeal.” See Pinnacle Homes Inc., v. R.C.L. Offshore Eng’g Co.,
640 S.W.2d 629, 630 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.).
“Where the trial court files findings which do not establish any element of the
grounds of defense, the party relying upon that defense must file a request for
additional findings such as to avoid waiver of that defense on appeal.” (citation
omitted)). Here, the trial court specifically rejected three of William’s affirmative
defenses asserted in his written answer. The trial court did not address “material
breach,” as William did not plead this affirmative defense. 8 Although the trial
court found in its order (signed before its findings of fact and conclusions of law)
that the son’s GPA “for his freshman year was at least a ‘C’ average,” the trial
court never found that the son did or did not breach the contract. William made no
request for such a finding but rather alluded to the son’s alleged breach in a motion
for new trial.9




       8
          See Mustang Pipeline Co. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 197 (Tex.
2004) (material breach is an affirmative defense). Unless tried by consent, “the contention that a
party to a contract is excused from performance because of a prior material breach by the other
contracting party is an affirmative defense that must be affirmatively pleaded or it is waived.”
City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 746 (Tex. App.—Fort Worth
2008, pet. dism’d); see also Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 280–81 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied) (“Where an affirmative defense is not pleaded or
tried by consent, it is waived”; holding that a disclaimer defense was not tried by consent even
though the trial court expressly found in its conclusions that the disclaimer was conspicuous and
evidence of the disclaimer was introduced without objection).
       9
          See Monk v. Westgate Homeowners’ Ass’n, Inc., No. 14-07-00886-CV, 2009 WL
2998985, at *3–4 (Tex. App.—Houston [14th Dist.] Aug. 11, 2009, no pet.) (mem. op.) (holding
that an affirmative defense cannot be raised for the first time in a motion for new trial and is
waived when no findings are obtained).

                                               11
      Lori also contends that even if the son failed to maintain a “C” GPA and
“this constitutes a breach of the contract, it was not a material breach.” Assuming
for argument’s sake that the trial court’s finding about the son’s GPA related to an
affirmative defense of first material breach, that the son’s failure to maintain a “C”
GPA constituted a breach of contract, and that William did not waive this defense,
we hold that the trial court could have reasonably found that any breach was not
material as to the expenses that the court awarded to Lori. When a trial court
makes a finding on at least one element of a defense, “any omitted findings will be
deemed to support the judgment if evidence exists to support such findings.”
Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985) (citing Tex. R. Civ. P. 299).
“Whether a party’s breach of contract is so material as to render the contract
unenforceable is a question of fact to be determined by the trier of fact.” Levine v.
Steve Sharn Custom Homes, Inc., 448 S.W.3d 637, 654 (Tex. App.—Houston [1st
Dist.] 2014, pet. filed) (citing Henry v. Masson, 333 S.W.3d 825, 835 (Tex. App.—
Houston [1st Dist.] 2010, no pet.)). In determining whether the son’s breach was
material and whether William’s obligations should be discharged, we look to the
following circumstances:

      (1)    the likelihood that the son will cure his failure to perform, taking into
             account all of the circumstances;
      (2)    the extent to which the behavior of the son comports with standards of
             good faith and fair dealing;
      (3)    the extent to which the son will suffer forfeiture;
      (4)    the extent to which William will be deprived of the benefit which he
             reasonably expected;
      (5)    the extent to which William can be adequately compensated for the
             part of that benefit of which he will be deprived;
      (6)    the extent to which it reasonably appears to William that delay may
             prevent or hinder him in making reasonable substitute arrangements;
             and

                                          12
       (7)     the extent to which the agreement provides for performance without
               delay, but a material failure to perform or offer to perform on a stated
               day does not of itself discharge William’s remaining duties unless the
               circumstances, including the language of the agreement, indicate that
               performance or an offer to perform by that day is important.
See Mustang Pipeline Co. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 197 (Tex.
2004) (citing RESTATEMENT (SECOND) OF CONTRACTS §§ 241, 242 (1981)).

       In view of these factors, the record supports the trial court’s deemed finding
that any breach by the son was not material and did not excuse William’s
obligation to pay for expenses incurred before the breach. First, as the trial court
expressly found, the son brought his GPA above a “C” average after the Summer
2013 semester. Thus, the son actually cured any failure to perform that occurred
by his having a GPA below a “C” after the Spring 2013 semester. The trial court
could have concluded that the son’s behavior comported with standards of good
faith and fair dealing, as he testified his grades dipped below a “C” average
because his attendance suffered after surgery on his knee; he also was a football
player for the university. Excusing William’s performance as to all semesters
(including the Fall 2012 semester for which the son’s GPA was above a “C”)
would cause the son significant forfeiture. William was not deprived of the benefit
he expected because his son remained a full time student toward a bachelor’s
degree at a university and maintained a GPA above a “C” by the time of trial. And
there was evidence that William’s refusal to fulfill his obligations under the
agreement had nothing to do with the son’s failure to maintain a “C” GPA for the
Spring 2013 semester. 10 There is no evidence that the son’s one-semester lapse

       10
          The son testified that William did not want to pay for all four years. William testified,
as well, about his intentions: “The conversation I’ve had with my kids is that I would help as
much as I can and we want to try to pay for two years and we want your mother to pay for a year
and it’s my philosophy that they should have a one-year expense.” William did not testify that
he was deprived of any benefit by his son’s breach.

                                                13
prevented William from making “substitute arrangements.” Finally, the agreement
itself does not require performance on a semester-by-semester basis, nor does it
call for the forfeiture of obligations previously owed to the son (i.e., Fall 2012
expenses) for a breach occurring in a later semester. The agreement itself does not
explicitly require the son to reimburse William for expenses incurred for a prior
semester if the son ultimately does not obtain a “C” average in a later semester.11

       Accordingly, even if William had not waived this affirmative defense, the
record supports the trial court’s judgment awarding Lori damages in the amount of
her expenses incurred before the son’s alleged breach. William’s fourth issue is
overruled.

                                   IV.    CONCLUSION

       Having overruled all of William’s issues, we affirm the trial court’s
judgment.


                                    /s/           Sharon McCally
                                                  Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally. (Frost, C.J.,
concurring).




       11
         William also acknowledged during his direct testimony that the clause regarding a “C”
GPA does not provide guidance about “whether or not the contract is, at this point, null and
void” due to the son’s breach.

                                             14
