                                   NO. 07-06-0222-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                         PANEL D

                                     JULY 31, 2008

                         ______________________________


                       IN THE MATTER OF THE MARRIAGE OF

                        NANCY J. KLEIN AND W. MIKE KLEIN

                       _________________________________

       FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

              NO. 2001-514,023; HONORABLE DRUE FARMER, JUDGE

                         _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                 DISSENTING OPINION


      Contrary to the position taken by the majority, I would sustain Mike’s first issue,

reverse that portion of the Modified Order of Enforcement that awarded Nancy recovery

of $2,239.91, together with prejudgment interest, for sums paid for seasonal bedding plants

planted at the marital residence in June 2003, and render judgment that Nancy take

nothing by her claim as to that issue.
       As noted by the majority, the temporary orders gave Nancy exclusive possession

of the marital residence and obligated Mike to pay certain household expenses, including

“normal weekly lawn maintenance.”          Under the plain meaning concept of contract

construction, normal weekly lawn maintenance is not the same thing as specially planted

seasonal flowers. However, Nancy contends, and the majority agrees, that the obligation

to plant seasonal flowers was not an obligation “incurred solely by [her] . . . incurred [after]

May 27, 2001.” Nancy reasons that because the service was performed pursuant to a

“standing order” it was incurred jointly, and was thus Mike’s obligation. This argument,

however, ignores the fact that the work would not have been performed if she had not

scheduled the work and instructed the workers to complete the job. Nancy had exclusive

possession of the residence and was in control of any decision to incur an obligation not

expressly covered by the terms of the temporary order. Because I believe the obligation

was incurred solely by Nancy, and because I believe that it was not an obligation expressly

assumed by Mike (i.e. it was not weekly lawn maintenance), I would sustain Mike’s first

issue, reverse the judgment of the trial court and render judgment that Nancy take nothing

by her claim as to that issue. In all other respects, I concur with the majority.




                                                           Patrick A. Pirtle
                                                                Justice




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