                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00058-CV


KENNETH RAY WALDROP                                                   APPELLANT

                                         V.

TERESA WALDROP                                                          APPELLEE

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

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                DISSENTING MEMORANDUM OPINION1

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      When a declaratory judgment case is over, the parties to a deed, will,

written contract, or other writings constituting a contract have some expectation

that the court will make a declaration regarding their rights under said deed, will,

written contract, or other writings constituting a contract. See Tex. Civ. Prac. &

Rem. Code Ann. § 37.004(a) (West 2015).            Whether the party believes the



      1
       See Tex. R. App. P. 47.4.
court’s ultimate decision is right or wrong, the party at least should have some

clarity regarding its rights.

       Here, the parties had such clarity at the trial court level. The central issue

below was whether the maintenance provision in the parties’ agreed divorce

decree was contractual in nature or subject to the spousal maintenance

requirements of chapter 8 of the family code.2 After the trial court made an

interlocutory ruling that the maintenance provision was contractual and not

subject to chapter 8’s spousal maintenance requirements, Appellant Kenneth

Ray Waldrop amended his petition to seek a declaratory judgment regarding the

circumstances in which a party could modify the subject maintenance provision.

After a bench trial, the trial court found that the subject maintenance provision

“was contractual in nature and not subject to Section Eight of the Texas Family

Code” and further found that the maintenance provision could only be modified

by the death of either Kenneth or Appellee Teresa Waldrop, the remarriage of

Teresa, the cohabitation of Teresa, or Teresa receiving her benefit from a

Kimberly Clark pension.

       On appeal, Kenneth challenges the trial court’s finding that the subject

maintenance provision is contractual and not subject to chapter 8’s spousal

maintenance requirements (his first issue) and challenges the trial court’s

declaration regarding the circumstances in which the subject maintenance


       2
       See Tex. Fam. Code Ann. § 8.001 (West 2006).

                                          2
provision could be modified (his second issue). But rather than addressing these

issues, the Majority assumes—without deciding—that the subject maintenance

provision calls for chapter 8 spousal maintenance and concludes that Kenneth

does not meet the modification requirements of chapter 8.3 According to the

Majority, Kenneth’s first two issues need not be reached because it concluded

that Kenneth did not establish a material and substantial change to his

circumstances—the standard for modification under chapter 8. See Tex. Fam.

Code Ann. § 8.057(c).

      As I see it, Kenneth’s second issue—whether the trial court erred in

declaring the circumstances required to modify the subject maintenance

provision—does not go away simply by assuming that chapter 8 applies.

Perhaps it would go away if the Majority actually reached Kenneth’s first issue

and held that the subject maintenance provision calls for chapter 8 spousal

maintenance, but the Majority makes no such holding. I fear the parties will be

back before the trial court (and ultimately us) in the near future to again

determine whether the maintenance obligation should be modified. The same

issues will need to be litigated then because we have not addressed them here.

Does the subject maintenance provision call for contractual maintenance, as the

trial court held, or does it call for chapter 8 spousal maintenance as the Majority

      3
        Under chapter 8, a trial court may modify a spousal maintenance
obligation “on a proper showing of a material and substantial change in
circumstances . . . relating to either party.” Tex. Fam. Code Ann. § 8.057(c)
(West Supp. 2016).

                                        3
assumes? Can the subject maintenance provision only be modified by the death

of either Kenneth or Teresa, the remarriage of Teresa, the cohabitation of

Teresa, or Teresa receiving her benefit from the Kimberly Clark pension, as the

trial court held, or are there other circumstances—like a material and substantial

change in Kenneth’s circumstances—that would allow for the modification of the

subject maintenance provision? Kenneth raised these issues, and we did not

address them.4 Because I think we should have, I respectfully dissent.



                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE


DELIVERED: September 29, 2016




      4
       It is particularly troubling to me that we do not reach Kenneth’s second
issue—the issue in which he challenges the trial court’s declaration of his right to
modify the subject maintenance provision—when we reach his fourth issue
concerning the award of attorney’s fees. As noted by the Majority, that award of
attorney’s fees was based on the suit being brought under the Uniform
Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009
(West 2015). It seems to me that if we uphold an award of attorney’s fees based
on a declaratory judgment then we should address the merits of the declaratory
judgment when they have been raised on appeal.

                                         4
