                                 MEMORANDUM OPINION
                                        No. 04-10-00402-CV

                                        Dawn M. JOURDAN,
                                             Appellant

                                                   v.

                                       Michael K. JOURDAN,
                                              Appellee

                     From the 408th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2000-CI-15410
                             Honorable Gloria Saldana, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 11, 2011

AFFIRMED

           This is a post-divorce proceeding to enforce an agreement incident to divorce between

appellant Dawn Jourdan (“Dawn”) and appellee Michael Jourdan (“Michael”). The agreement

was incorporated into an agreed divorce decree and provided for the payment of contractual

alimony. See TEX. FAM. CODE ANN. § 7.006(a) (West 2006) (allowing divorcing parties to enter

into written agreements concerning support and maintenance). After a nonjury trial, the trial

court denied Dawn’s motion to enforce the agreement and granted Michael an offset for
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overpayments, as well as attorney’s fees. On appeal, Dawn contends the trial court erred in

denying her motion for enforcement of spousal maintenance and granting Michael’s claims for

offset and credit. She also argues it was error for the court to award Michael attorney’s fees. We

affirm.

                                            BACKGROUND

          Dawn and Michael married in 1985 and divorced in June 2001.                 They signed an

agreement incident to divorce, which was incorporated into a decree of divorce approved by the

trial court and signed on June 20, 2001. As part of the agreement, Michael agreed to pay Dawn

contractual alimony in the form of: (1) $3,500 per month, decreasing over time for twelve years

for a total of $318,000; and (2) payments to Chase Bank for the mortgage payment on the

residence awarded to Dawn until the note balance of $256,173.00 was paid in full.

          The divorce decree provides that Dawn “shall pay . . . [a]ny and all debts, charges,

liabilities and other obligations . . . related to property awarded to [her].” It also states that in the

event the mortgage payment increased or decreased because of ordinary market fluctuations,

Michael would pay the amount indicated on the annual escrow statements. With the exception of

the escrow statement for the first year after the divorce, and in violation of the agreement and

decree, Dawn did not furnish Michael with copies of the annual escrow statements.

          Michael subsequently learned he was not receiving credit for the full amount he thought

was being applied to the mortgage-payment component of the contractual alimony. In the spring

of 2008, Michael learned Dawn was not paying the property taxes or the homeowner’s insurance.

As a result, he stopped making the monthly cash contractual alimony payments. Michael’s

cessation of payments prompted Dawn to file a motion to enforce the decree and the agreement

incident to divorce. Michael filed an answer and counterclaim in which he denied Dawn’s



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claims, and sought an offset or credit for refunds of escrow balances that were wrongfully paid to

Dawn. He also requested attorney’s fees.

       On February 22, 2010, the trial court denied Dawn’s motion to enforce and granted

Michael an offset in the amount of $117,693.89. Michael applied this credit to the $75,000

remaining balance on the cash-payment component of the contractual alimony obligation, which

resulted in Dawn owing Michael $42,693.89, in addition to the $19,226.18 attorney’s fees that

the trial court awarded to Michael. The trial court then allowed $61,920.09 ($42,693.89 plus

$19,226.18) as an offset against Michael’s mortgage-balance obligation of $131,878.24 (as of

January 10, 2010). This left a balance of $69,958.17, which Michael is still obligated to pay.

       Dawn filed a motion for new trial on March 23, 2010. She also requested findings of fact

and conclusions of law, but these were not timely filed. See TEX. R. CIV. P. 296 (noting that

parties may request court to state in writing its findings of fact and conclusions of law and such

request shall be filed twenty days after judgment is signed). The notice of past-due findings was

not timely filed. See TEX. R. CIV. P. 297 (noting that party must file notice within thirty days

after filing original request for findings of fact if court fails to file timely findings of fact and

conclusions of law). Dawn appeals the trial court’s ruling.

                                            DISCUSSION

       A marital property agreement incorporated into a final divorce decree is treated as a

contract and its legal force and meaning are governed by the law of contracts, not by the law of

judgments. Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986). Moreover, an agreed judgment is

also covered by the law of contracts. Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex. App.—San

Antonio 2002, no pet.).




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       Under the law of contracts, in construing an agreement incident to divorce, a court must

look to the intentions of the parties as manifested in the written agreement. J.M. Davidson, Inc.

v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); Bishop, 74 S.W.3d at 879–80. Whether a contract

is ambiguous is a question of law that we review de novo. MCI Telecomm. Corp. v. Tex. Util.

Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999). A contract is not ambiguous if it can be given a

definite or certain meaning as a matter of law. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.

1983); Bishop, 74 S.W.3d at 880. This query for ambiguity must be decided by examining the

contract as a whole in light of the circumstances present when the contract was entered. Bishop,

74 S.W.3d at 880 (citing Columbia Gas Trans. Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587,

589 (Tex. 1996); Coker, 650 S.W.2d at 394). We consider the entire writing and attempt to

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

reference to the whole agreement. Webster, 128 S.W.3d at 229.

       The decree in this case is enforceable both as a contract and as an agreed judgment. See

Allen, 717 S.W.2d at 313; Bishop, 74 S.W.3d at 879. Neither party has pled ambiguity, and in

fact, both parties stipulated the agreement was unambiguous. However, Dawn argues that

according to the terms of the agreement and the decree, Michael agreed to make the mortgage

payments described in the note, and this included an obligation to pay property taxes and

homeowner’s insurance. Michael contends he was only required to pay the mortgage.

       The agreement provides that Michael shall make the mortgage payments in accordance

with the terms of the existing real estate lien note:

       “Michael K. Jourdan will pay for the benefit of Dawn M. Jourdan the [mortgage]
       . . . in accordance with the terms of the existing real estate lien note.”

       The only mortgage payments required under the note are monthly principal and interest

in the amount of $2,123.38:

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       “[Borrower] will pay principal and interest by making payments every month. . . .
       [] monthly payment will be in the amount of U.S $ 2,123.38.”

       The agreement clearly provides only for mortgage payments “in accordance with the

terms of the existing real estate lien note.” This note does not require the payment of taxes or

insurance—only principal and interest.       Therefore, even though Dawn urges a different

interpretation, differing interpretations of a contract do not amount to an ambiguity. See Kelley

Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998) (holding that mere

conflicting expectations or disputes are not enough to create ambiguity); see Consol. Petroleum,

Partners, I, LLC v. Tindle, 168 S.W.3d 894, 898–99 (Tex. App. 2005) (citing Birnbaum v. Swepi

LP, 48 S.W.3d 254, 257 (Tex. App.—San Antonio 2001, pet. denied) (noting courts cannot

change a contract simply because one of the parties comes to dislike its provisions or provides a

different meaning to them)). We hold the agreement clearly required Michael to pay mortgage

payments according to the terms of the note, and these terms only included monthly principal

and interest.

       Moreover, in construing contracts, courts must consider all the provisions with reference

to the entire document. Coker, 650 S.W.2d at 394. The agreement incident to the divorce

provides that the entire agreement of the parties consists of the agreement and the divorce decree.

The agreement states that Michael is to pay the “mortgage obligation,” but the divorce decree

provides that Dawn is responsible for paying “[a]ny and all debts, charges, liabilities and other

obligations . . . related to property awarded to [Dawn] . . . .” Therefore, we hold Michael was

required to pay principal and interest on the mortgage, while Dawn was responsible for all other

charges, including taxes and insurance.

       Dawn also complains the trial court erred in allowing Michael an offset and credit against

an obligation owed to a nonparty, the mortgage company. However, we hold the credit is against

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Michael’s obligation to Dawn pursuant to the terms of the agreement; it is not an offset against

their mutual obligation to the mortgage holder under the terms of the note. The credit merely

acknowledges that Michael has paid a certain amount, which the trial court credited against his

obligations to Dawn.

       Finally, Dawn argues the trial court erred in awarding attorney’s fees to Michael, because

she should have been the prevailing party in the enforcement suit. Dawn does not challenge the

reasonableness of the attorney’s fees awarded to Michael. See Aquila Sw. Pipeline, Inc. v.

Harmony Exploration, Inc., 48 S.W.3d 225, 240–41 (Tex. App.—San Antonio 2001, pet. denied)

(noting that when party challenges reasonableness of attorney’s fees, court may look at

sufficiency of evidence to support fees). Instead, Dawn argues that according to the agreement,

the prevailing party is entitled to recover such fees, and claims that because she should have been

the prevailing party, it was error to award fees to Michael. Because we have held the trial court

correctly entered judgment in favor of Michael, we hold the trial court did not err in awarding

attorney’s fees to Michael and overrule Dawn’s last point of error.

                                          CONCLUSION

       In sum, we overrule Dawn’s points of error and affirm the trial court’s judgment.



                                                            Marialyn Barnard, Justice




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