      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00177-CV



                                John Carlton Ammann, Appellant

                                                  v.

                                   Diane G. Ammann, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
          NO. C2006-1282C, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                             MEMORANDUM OPINION


               This is an appeal from a trial court order denying appellant John Carlton Ammann’s

motion to terminate his obligation to make spousal support payments. We will affirm.


Background

               John1 filed a petition for divorce in December 2006. Diane filed an answer and

counter-petition for divorce in January 2007. On November 19, 2007, the parties executed a

document titled “Rule 11 Agreement for Divorce Decree” (the Rule 11 Agreement). The Rule 11

Agreement was filed with the court, and the court’s docket sheet indicates that the trial court granted

the divorce that day pending entry of a final decree. Paragraph 13 of the Rule 11 Agreement

provides: “John shall pay $1000/month in child support and $600/month alimony until [John and


       1
          Because John Carlton Ammann and appellee Diane G. Ammann have the same last name,
for clarity we will refer to them by their first names.
Diane’s youngest child] is emancipated.”2 The parties submitted a Final Decree of Divorce in

December 2008.       The decree recites: “This decree judicially pronounced and rendered on

November 19, 2007 and further noted on the court’s docket sheet on the same date, but signed on

December 17, 2008.”        The Final Decree of Divorce contains a provision titled “Spousal

Maintenance” that provides, in pertinent part:


       The Court finds that the parties agree that under the circumstances presented in this
       case, Diane G. Ammann is eligible for maintenance under the provisions of the Texas
       Family Code Chapter 8. Accordingly, John Carlton Ammann is ordered to pay as
       maintenance the sum of $600.00 per month to Diane G. Ammann, with the first
       payment being due on the first day of December, 2007 and a like amount being due
       on the fourteenth day of the [sic] of each consecutive month thereafter until the
       earliest of one of the following events occurs:

                1.     December 1, 2016;

                2.     death of either Petitioner or Respondent; . . . .


In January 2009, John filed a motion requesting that the trial court terminate his obligation to make

spousal support payments. In his motion John asserted, and Diane does not dispute, that Diane

“cohabits with another person in a permanent place of abode on a continuing, conjugal basis.” John

contended that, as a consequence, the trial court was required under section 8.056 of the family code

to terminate his obligation to pay spousal maintenance. See Tex. Fam. Code Ann. § 8.056(b)

(West 2006) (“After a hearing, the court shall terminate the maintenance order if the obligee cohabits

with another person in a permanent place of abode on a continuing, conjugal basis.”). Diane

countered that section 8.056 of the family code, which addresses termination of court-ordered


       2
           The record shows that this child’s 18th birthday is December 1, 2016.

                                                  2
spousal maintenance, does not apply because John’s payment obligation is not court-ordered spousal

maintenance, but is contractual alimony agreed upon by the parties and memorialized in the Rule 11

Agreement. After a hearing, the trial court denied John’s motion. This appeal followed.


Analysis

               The issue before us is whether John’s payment obligation is court-ordered spousal

maintenance governed by chapter 8 of the family code, which would require the relief John seeks,

or is contractual alimony governed by the parties’ Rule 11 Agreement. Before 1995, the award of

post-divorce alimony or spousal maintenance was held to be impermissible under the statutes and

public policy of Texas. Ex parte Casey, 944 S.W.2d 18, 19 (Tex. App.—Houston [14th Dist.] 1997,

pet. denied). Although it prohibited court-ordered alimony, the supreme court did allow parties to

agree to such awards contractually. See Francis v. Francis, 412 S.W.2d 29, 31 (Tex. 1967).

Effective September 1, 1995, the legislature authorized courts to award post-divorce spousal

maintenance, but strictly limited the circumstances under which they could do so. See Tex. Fam.

Code Ann. §§ 8.001-.305 (West. 2006). The legislature also provided that any court-awarded

spousal maintenance “terminates on the death of either party or on the remarriage of the obligee” and

must be terminated by the court “if the obligee cohabits with another person in a permanent place

of abode on a continuing, conjugal basis.” Id. § 8.056. The legislature authorized “maintenance”

in the context of a well-established legal distinction between court-ordered alimony, which was held

to be impermissible, and alimony by agreement, which was permitted even when incorporated into

a divorce decree. See McCollough v. McCollough, 212 S.W.3d 638, 645 (Tex. App.—Austin 2006,

no pet.). Whereas the availability and termination of court-ordered spousal maintenance are

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governed by chapter 8, the family code continued to permit the parties to a divorce to enter into

written agreements concerning the support of either spouse on terms other than those the court is

authorized to order. See Tex. Fam. Code Ann. § 7.006(a) (West 2006). Such maintenance

agreements are binding on the parties and, even when incorporated into divorce decrees, are

interpreted under general contract law. Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex.

App.—Dallas 2008, no pet.).3 As with any other contract, absent consent of the parties, the

provisions of such an agreement will not be modified or set aside except for fraud, accident or

mutual mistake of fact. Boyd v. Boyd, 545 S.W.2d 520, 523 (Tex. Civ. App.—Houston [1st Dist.]

1976, no writ).

                  The spousal support obligation at issue in this case arises out of the Rule 11

Agreement signed by the parties and filed with the court. In the Rule 11 Agreement, John and Diane

agreed that John would pay Diane alimony in the amount of $600 per month until their youngest

child is “emancipated.” John has made no allegation that the Rule 11 Agreement resulted from any

fraud, accident, or mistake. In his motion, John argued that the payment obligation should be

terminated because Diane “cohabits with another person in a permanent place of abode on a

continuing, conjugal basis.” The Rule 11 Agreement itself does not contain such a termination

provision. John contends, however, that the $600 per month payment is spousal maintenance

governed by chapter 8 of the family code, which does provide for the cessation of spousal




       3
         “The legislature’s evident intent in chapter 8 was to create narrow circumstances in which
previously prohibited forms of spousal support could be awarded, not to govern the forms of
contractual alimony previously permitted.” McCullough v. McCullough, 212 S.W.3d 638, 645 (Tex.
App.—Austin 2006, no pet.).

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maintenance payments in the event of cohabitation. See Tex. Fam. Code Ann. § 8.056. In support

of his position, John relies on the language contained in the divorce decree, specifically the

following:


       the parties agree that under the circumstances presented in this case, Diane G.
       Ammann is eligible for maintenance under the provisions of Texas Family Code
       Chapter 8. Accordingly, John Carlton Amman is ordered to pay as maintenance the
       sum of $600.00 per month to Diane G. Ammann . . . .


John does not contend that he did not agree to pay $600 per month in spousal support. He asserts,

though, that the parties “intend[ed] for the spousal support/alimony obligation to be governed by

chapter 8 of the Family Code,” and therefore the statutory conditions for termination apply.

               While the language of the divorce decree does refer to chapter 8, we are not

convinced that the parties agreed or intended for chapter 8 to govern, modify, or in anyway affect

their agreement regarding spousal support. The Rule 11 Agreement itself manifests no intent that

John’s payment obligation be governed by chapter 8 of the family code. See McCollough,

212 S.W.3d at 646. The reference to chapter 8 appears only in the divorce decree, not in the Rule 11

Agreement that created the alimony obligation. The Rule 11 agreement and the divorce decree

expressly state the events that terminate John’s payment obligation. The Final Divorce Decree states

that the payment obligation continues “until the earliest of one of the following events occurs: 1.

December 1, 2016; 2. death of either Petitioner or Respondent.” This termination provision is

consistent with the terms of the Rule 11 Agreement, and does not include or refer to the events that

would lead to termination of the maintenance obligation under chapter 8. See Tex. Fam. Code Ann.

§ 8.056. The decree contains no references to the factors the court must consider in determining the

                                                 5
nature, amount, duration, and manner of payments pursuant to chapter 8. In fact, John’s agreed

alimony obligation would have violated chapter 8 from its inception because it contemplates

payments over a period of more than three years. See id. § 8.054 (court may not order maintenance

that remains in effect for more than three years after date of order). The alimony provision contained

in the Rule 11 Agreement and incorporated into the Final Divorce Decree differs from, and exceeds,

the statutory provisions for the duration and termination of spousal maintenance. See id. §§ 8.054-

.056. The mere reference to family code chapter 8 in the divorce decree does not transform the

contractual alimony obligation into a court-ordered maintenance obligation governed by that chapter.

               The trial court correctly concluded that the parties intended to, and by executing the

Rule 11 Agreement did, create a contractual alimony agreement outside of the context of chapter 8,

and that John’s payment obligation is not court-ordered spousal maintenance governed by that

chapter. An agreed judgment based upon a settlement agreement, such as the divorce decree in the

present case, must be in strict or literal compliance with the terms of that settlement agreement.

Vickrey v. American Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976). A trial court has no

power to supply terms, provisions or conditions not previously agreed upon by the parties.

McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex. App.—Dallas 1992, writ denied).4 The trial




       4
          When the terms of an agreed judgment conflict with the underlying Rule 11 Agreement,
the court with jurisdiction to do so should modify the judgment to conform to the settlement
agreement. See McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex. App.—Dallas 1992, writ
denied). If the complaint is raised on appeal, the appellate court may modify the conflicting term
to conform to the settlement agreement if the discrepancy in the terms results from a clerical error.
Id. If the conflict is based upon judicial error, the appellate court must reverse the judgment and
remand it to the trial court for entry of a judgment that conforms to the terms of the parties’
agreement. Clanin v. Clanin, 918 S.W.2d 673, 678 (Tex. App.—Fort Worth 1996, no writ).

                                                  6
court properly declined to construe the divorce decree in a manner inconsistent with the Rule 11

Agreement and did not err in denying John’s motion to terminate his obligation to pay Diane

alimony of $600 per month until December 1, 2016. We overrule John’s appellate issue.


                                       CONCLUSION

              Having overruled John Carlton Ammann’s single appellate issue, we affirm the trial

court’s judgment.



                                            _____________________________________________

                                            David Puryear, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: October 28, 2010




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