                                     NO. 07-10-00029-CV

                                IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                        JULY 20, 2010


                               DIANE HUFFINES, APPELLANT

                                               v.

                              TIMOTHY MCMAHILL, APPELLEE


             FROM THE COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY;

                  NO. CCL-559-06-E; HONORABLE JIM C. HOGAN, JUDGE


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


                                  MEMORANDUM OPINION

           Appellant Diane Huffines appeals a judgment awarding her former husband

Timothy McMahill damages for breach of an agreement to pay their son’s college

tuition.     Finding the trial court abused its discretion by enforcing the terms of the

agreement as a contract, we will reverse and render judgment that McMahill take

nothing.


                                          Background


           On March 7, 1989, the trial court signed a final decree of divorce dissolving the

marriage of Huffines and McMahill. Huffines was made sole managing conservator of
the parties’ son, and McMahill was responsible for payment of monthly child support. In

November 1998, the trial court signed an order granting McMahill’s motion to modify. In

the order, to which Huffines and McMahill agreed as to form and substance, the court

modified the terms of possession of the child. In addition, the order contained the

following paragraph eight:


       Support.


               IT IS ORDERED that neither party is to pay child support, except
       that Timothy McMahill is to continue to provide health insurance for [the
       child]. Timothy McMahill will provide for [the child’s] clothing needs, sports
       activity fees, school fees, and future vehicle needs. Timothy McMahill and
       Diane S. Huffines will each be responsible for one-half (1/2) the cost of
       [the child’s] college tuition. Unreimbursed medical expenses will be paid
       50% by Timothy McMahill and 50% by Diane S. Huffines. C.R. 12.

       By 2006, the parties’ son was over the age of eighteen and enrolled in college.

Huffines refused to pay for one-half of his tuition pursuant to the 1998 order. McMahill

filed suit but under a cause number separate from the previous family law proceeding.

The trial court awarded McMahill $8,712.14 in damages for Huffines’ breach of contract.

Huffines filed a motion for new trial that was overruled by operation of law.


                                             Analysis


       Huffines brings five issues, urging that the trial court abused its discretion by (1)

finding the 1998 order enforceable as a contract; (2) finding the 1998 order was not

superseded by a subsequent order of December 11, 2001; (3) enforcing the 1998 order

as a contract because the consideration for the contract failed; (4) awarding damages

on factually insufficient evidence; and (5) enforcing the 1998 agreement as a contract


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after finding that the agreement of the parties to each be responsible for one-half of their

son’s college tuition was not a provision for the support of a child.


       We review the trial court’s judgment under an abuse of discretion standard. See

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1991) (clear abuse of discretion). If the

trial court fails to accurately interpret the law or applies the law incorrectly, then it

abuses its discretion. Id.; Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-

42 (Tex. 1985). A trial court has no discretion in determining what the law is or properly

applying the law. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 643 (Tex.

2009) (citing In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 612 (Tex.

2006)).


       Orders modifying the support of a child fall under the purview of § 154.001 of the

Family Code. Tex. Fam. Code Ann. § 154.001 (Vernon 2008). Section 154.001(a)(1)

prohibits court-ordered child support for children past the age of eighteen. At the time

relevant to this appeal, Family Code § 154.124(c) provided contractual enforcement of

child support past a child’s eighteenth birthday. Elfeldt v. Elfeldt, 730 S.W.2d 657, 658

(Tex. 1987) (per curiam) (interpreting § 14.06, recodified as § 154.124, court held

parties to an agreement concerning the support of a non-disabled child over eighteen

must expressly provide in the order incorporating the agreement that its terms are

enforceable as contract terms for a contractual remedy to be available). To utilize the

exception, the parties to an order for support of a child had to agree that the terms

would be enforced contractually, or the order had to expressly incorporate a contractual

agreement. Id.; Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996) (discussing

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requirement of Elfeldt that in absence of separate written agreement and when order is

only written manifestation of parties’ agreement, order must provide for enforceability as

contract).1


       The order at the center of this case did not provide for contractual enforcement.

Elfeldt, 730 S.W.2d at 658; Bruni, 924 S.W.2d at 368. There is also no indication that

the parties made a written agreement for child support whose terms were incorporated

into the 1998 order. We conclude the trial court misapplied Family Code § 154.124(c) in

finding the agreement enforceable as a contract. See Bruni, 924 S.W.2d at 368.


       McMahill relies on the finding of the trial court to argue that the parties’

agreement for payment of their son’s college tuition was a contract and not an

agreement concerning child support. But this is a conclusion of law rather than a finding

of fact. See In the Interest of A.L.H.C., 49 S.W.3d 911, 918 (Tex.App.--Dallas 2001,

pet. denied) (judgment is interpreted like other written instruments and absent ambiguity

construction of written instrument is question of law). A trial court’s incorrect conclusion

of law is not binding on the appellate court. Cadle Co. v. Regency Homes, Inc., 21

S.W.3d 670, 682 (Tex. App.--Austin 2000, pet. denied). See Bexar County Criminal

Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 643 (Tex.App.--San Antonio 1989, no

writ) (erroneous conclusions of law are not binding on an appellate court.)




       1
         Family Code § 154.124(c) was amended, effective for agreements entered on
or after September 1, 2003. The amendment has no application here, and would not
lead to a different outcome in any event. See Martinez v. Costilla, No. 04-07-0691-CV,
2008 Tex. App. Lexis 6896, *2 n.1 (Tex.App.—San Antonio Sept. 10, 2008, no pet.)
(mem. op.) (discussing statutory amendment).
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       Paragraph eight of the 1998 order is labeled “support.” Its first sentence states

neither party shall pay child support except McMahill shall be responsible for his son’s

“clothing needs, sports activities fees, and future vehicle needs.” The following sentence

obligates McMahill and Huffines for payment of one-half of college tuition. The

paragraph then concludes with a sentence obligating McMahill and Huffines for

payment of unreimbursed medical expenses. One commentator observes, “[t]he most

common type of child support order is one that requires the parent who is not managing

conservator to pay the managing conservator a sum of money on a periodic basis.” 22

William V. Dorsaneo III, Texas Litigation Guide § 371A.03[2][a] (2006). But other types

of support are authorized. See Tex. Fam. Code Ann. § 154.001 (Vernon 2008) (either or

both parents may be ordered “to support a child in the manner specified by the order”);

§ 154.003 (specifying methods of payment). Child support payments may include a

specific expense, such as tuition. Rovner v. Rovner, 778 S.W.2d 905, 906 (Tex.App.—

Dallas 1989, writ denied). Here, the only reasonable reading of paragraph eight of the

1998 order is while neither party was obligated for periodic support payments each was

obligated for payment of one-half the cost of college tuition, as support of their son.


       We conclude the trial court abused its discretion by not correctly applying Family

Code § 154.124(c).


       We turn now to the question of harm and whether the error probably caused the

rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1). As noted, the instant suit

was filed as a separate breach of contract suit under its own cause number. The trial

court’s judgment and findings make clear the judgment is based only on a breach of

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contract theory. Because the 1998 order was not enforceable as a contract, the error of

the trial court resulted in an improper judgment.


                                       Conclusion


       Having sustained Huffines’ first issue and finding the error was not harmless, we

reverse the judgment of the trial court and render judgment that McMahill take nothing.

Our disposition of Huffines’ first issue makes unnecessary discussion of her remaining

issues. Tex. R. App. P. 47.1.




                                                             James T. Campbell
                                                                  Justice




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