Affirmed in Part, Reversed and Remanded in Part, and Opinion filed May 21,
2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00161-CV

                    JOHN STEPHEN PHILIPS, Appellant
                                       V.

                          GAIL MCNEASE, Appellee

                   On Appeal from the 247th District Court
                           Harris County, Texas
                     Trial Court Cause No. 1997-57363

                                  OPINION

      This post-divorce action to modify the terms of contractual alimony involves
two separate claims: one asserted under the Family Code and another under the law
of contracts. On appeal from a summary judgment, we conclude that the trial court
erred by disposing of the Family Code claim because that claim was not
specifically addressed in a motion for summary judgment. We reverse the
judgment in part and remand for an adjudication of that claim. As for the contract
claim, we conclude that summary judgment was proper and we affirm the trial
court’s judgment.

                                 BACKGROUND

      When John and Gail divorced in 1998, the trial court incorporated the terms
of a written agreement into their final decree of divorce. One of the terms stated
that John would provide a continuing measure of support to Gail in the form of
“contractual alimony.” John agreed to pay Gail $1,500 per month for her entire
life, terminating only in the event of her remarriage. Even if John predeceased
Gail, he agreed that any remaining obligations would be binding on his estate.

      In 2002, John filed a petition to modify the terms of his contractual alimony,
which he described as “maintenance and support.” John asserted that a
modification was available under Chapter 8 of the Texas Family Code because
there had been a material and substantial change of circumstances since the
rendition of the divorce decree. John alleged that Gail’s income had substantially
increased and that she had sufficient resources to meet her reasonable needs.
Alleging further that his own income had decreased, John requested a
corresponding decrease in his support payments to Gail.

      John also sought other relief, asking for a complete termination of his
contractual alimony. He alleged that the terms of his contractual alimony
contravened the terms of statutory maintenance. He also alleged that his
contractual   alimony   lacked   consideration    and     that   it   was   void   for
unconscionability.

      Gail responded that the trial court lacked jurisdiction over the case. She
claimed that John’s petition to modify constituted an impermissible collateral



                                         2
attack on the final decree of divorce. She also argued that a modification was
precluded by res judicata and collateral estoppel.

      In 2003, the trial court rejected Gail’s arguments and found that a material
and substantial change had occurred in the circumstances of the parties. The court
entered an order that modified the divorce decree by reducing John’s alimony
obligations from $1,500 per month to $1,250 per month. All other terms remained
unchanged. The court denied John’s request to terminate his contractual alimony,
and neither party appealed from the judgment.

      In 2012, John filed another petition to modify. Once again, he broadly
asserted two grounds for relief. In the first ground, which we identify as the
“Family Code Claim,” John claimed that a modification was available under
Chapter 8 of the Family Code. He alleged that his circumstances had materially
and substantially changed because he had recently suffered a heart attack, which
caused him to incur about $40,000 in medical expenses. He further alleged that he
had to forfeit a bonus when he lost his job, and that he had since taken on
additional dependents.

      In his second ground for relief, which we identify as the “Contract Claim,”
John claimed that the terms of the divorce decree should be set aside because of a
multitude of contract theories. Most of the theories addressed the issue of contract
formation. Those theories were lack of consideration, unconscionability, undue
influence, duress, extrinsic fraud, and mistake of fact. In addition to these theories,
John asserted a “frustration of purpose” theory for reasons unrelated to contract
formation.

      Gail filed several motions in response. In a plea to the jurisdiction, Gail
asserted that the trial court had no authority to act under the Family Code. She
explained that the Family Code applies to court-ordered maintenance, but not
                                          3
contractual alimony. Because the divorce decree explicitly provided that John’s
support payments were in the form of “contractual alimony,” Gail argued that any
attempt to modify or abrogate John’s obligation must be governed by contract law
principles.

      Gail also moved for summary judgment on traditional and no-evidence
grounds. In both of her motions, Gail restricted her arguments to the Contract
Claim. In her no-evidence motion, she asserted that there was no evidence to
support any theory alleged under the Contract Claim. In her traditional motion, she
argued that each theory was barred by res judicata, with the exception of
frustration of purpose. In the alternative, she argued that each theory, including
frustration of purpose, failed as a matter of law. Gail did not seek summary
judgment on the Family Code Claim.

      In response to Gail’s plea, John argued that the trial court had already
established its jurisdiction when it granted relief in the first modification
proceeding. John argued further that contractual alimony was governed by the
Family Code, and that the word “alimony” as used in the final decree of divorce “is
for all practical purposes synonymous with maintenance.”

      John also asserted that res judicata did not apply and that there were fact
issues that precluded a summary judgment. In support of these arguments, John
attached more than forty exhibits to his summary-judgment response. Gail filed a
list of written objections, complaining that nearly every one of those exhibits had
not been authenticated and was inadmissible as hearsay.

      In 2013, the trial court sustained Gail’s evidentiary objections and granted
her motions for summary judgment. The court signed a “Final Judgment,” which
purported to dismiss the entirety of John’s petition to modify. The recitals reflect
that the trial court considered Gail’s plea to the jurisdiction at the same time as the
                                          4
motions for summary judgment, but the court did not expressly address the plea to
the jurisdiction in any of its rulings. At the bottom of the judgment, a Mother
Hubbard clause provided: “All other relief not herein granted is hereby DENIED.”

                              ISSUES PRESENTED

      John raises five issues in this appeal. In his first issue, he contends that the
trial court erred by dismissing the Family Code Claim. In his second and third
issues, he contends that the trial court erred by granting Gail’s traditional and no-
evidence motions for summary judgment. In his fourth issue, he contends that the
trial court erred by sustaining Gail’s objections to his summary-judgment evidence.
And in his fifth issue, he contends that perpetual spousal alimony is against the
public policy of the state.

                              FAMILY CODE CLAIM

      John contends that we must reverse the trial court’s judgment because it
grants more relief than what Gail requested. John focuses his argument on the
dismissal of the Family Code Claim. He explains that this claim was not addressed
in either of Gail’s motions for summary judgment. Rather, it was addressed in her
plea to the jurisdiction, and according to John, there was no ruling on the plea to
the jurisdiction.

      If the judgment did not actually dispose of this claim, and the trial court had
jurisdiction over the claim, then the judgment is not final for purposes of appeal.
Under such circumstances, we must dismiss the appeal, instead of reverse the
judgment. See Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (per curiam);
Lentino v. Frost Nat’l Bank, 159 S.W.3d 651, 655 (Tex. App.—Houston [14th
Dist.] 2003, no pet.). The outcome depends on whether this court has appellate
jurisdiction. Although neither party has briefed the issue, we have an independent


                                          5
duty to confirm that we have jurisdiction over the appeal. See SJ Med. Ctr., L.L.C.
v. Estahbanati, 418 S.W.3d 867, 870 (Tex. App.—Houston [14th Dist.] 2013, no
pet.). Therefore, we address this threshold question first.

I.    Appellate Jurisdiction

      This court’s jurisdiction is established exclusively by constitutional and
statutory enactments. See Tex. Const. art. V, § 6; Tex. Gov’t Code § 22.220.
Unless one of the sources of our authority specifically enables an interlocutory
appeal, we only have jurisdiction over an appeal taken from a final judgment. See
Tex. Civ. Prac. & Rem. Code §§ 51.012, 51.014; N.E. Indep. Sch. Dist. v.
Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).

      A judgment issued without a conventional trial is final for purposes of
appeal if and only if it actually disposes of all claims and parties then before the
court, regardless of its language, or it states with unmistakable clarity that it is a
final judgment as to all claims and parties. See Lehmann v. Har-Conn Corp., 39
S.W.3d 191, 192–93 (Tex. 2001). Because a final judgment does not have to be in
any particular form, deciding whether a judicial decree is a final judgment must be
determined from its language and the record in the case. Id. at 195. If the judgment
does not dispose of every pending claim but is “clearly and unequivocally” final on
its face, the judgment is not interlocutory merely because the record does not
afford a legal basis for the adjudication. Id. at 206. Rather, the judgment is final but
erroneous, and it must be reversed. Id.

      The judgment here contains a recitals paragraph indicating that the trial court
considered four separate motions, each filed by Gail: (1) a plea to the jurisdiction,
(2) a traditional motion for summary judgment, (3) a no-evidence motion for
summary judgment, and (4) a list of objections to John’s summary-judgment


                                           6
evidence. In the same recitals paragraph, the trial court sustained Gail’s evidentiary
objections and granted her motions for summary judgment.

      A single decretal paragraph follows. It says: “It is therefore ORDERED,
ADJUDGED and DECREED that Summary Judgment be entered for [Gail], and
[John’s] Petition to Modify Alimony Payments is hereby dismissed. Court costs
are assessed against [John].”

      After that, there is a Mother Hubbard clause and a sentence declaring that
“THIS IS A FINAL JUDGMENT.”

      The judgment does not contain Lehmann-type language, explicitly providing
that the “judgment finally disposes of all parties and all claims and is appealable.”
But that omission is not dispositive. The record shows that John and Gail are the
only parties to this lawsuit, and John asserted his only two claims (the Family Code
Claim and the Contract Claim) in his petition to modify. Gail did not have any
counterclaims. By expressly dismissing the petition to modify, the trial court left
no parties or claims to be adjudicated. Even if the trial court lacked a legal basis for
the dismissal, its judgment contains unmistakable language of finality. We
accordingly conclude that we have appellate jurisdiction.

II.   Analysis

      Proceeding now to the merits of John’s argument, we first note that there
was a ruling on Gail’s plea to the jurisdiction. The recitals paragraph in the court’s
judgment reflects that the court considered Gail’s plea at the same time as her
motions for summary judgment. By failing to take express action on the plea, the
trial court implicitly denied it when the court rendered a judgment containing a
Mother Hubbard clause.



                                           7
      The denial of Gail’s plea says nothing, however, about whether the trial
court correctly dismissed the Family Code Claim. For that question, we must
examine the motions for summary judgment, which are the only dispositive
motions in the case. If grounds for dismissing the Family Code Claim were not
expressly set forth in a motion for summary judgment, then the trial court erred by
granting the summary judgment. See McConnell v. Southside Indep. Sch. Dist., 858
S.W.2d 337, 339 (Tex. 1993) (holding that a trial court errs if it grants a summary
judgment on an issue not raised in a motion for summary judgment); Narnia Invs.,
Ltd. v. Harvestons Sec., Inc., No. 14-10-00244-CV, 2011 WL 3447611, at *3–5
(Tex. App.—Houston [14th Dist.] Aug. 9, 2011, no pet.) (mem. op.) (same).

      Gail did not address the Family Code Claim in her motions for summary
judgment. As indicated above, both motions exclusively address the Contract
Claim. Because the motions provide no basis for disposing of the Family Code
Claim, we conclude that the trial court’s judgment is erroneous and overbroad.

      On appeal, Gail does not attempt to broaden the scope of her motions so that
the grounds she asserts in them extend to the Family Code Claim. Instead, Gail
argues that John waived any error regarding the scope of the final judgment
because he never objected that it was overbroad. We disagree with Gail’s waiver
argument. A trial objection is not required if the grounds expressly set forth in the
motion are insufficient as a matter of law to support the summary judgment. See
Welch v. McDougal, 876 S.W.2d 218, 226 (Tex. App.—Amarillo 1994, writ
denied) (reversing a summary judgment because the movants did not address each
of the non-movant’s claims, despite movants’ appellate argument that the non-
movants had failed to preserve error).

      Gail argues next that, even if the summary judgment is erroneous, it should
not be sent back because the trial court lacks jurisdiction over the Family Code

                                         8
Claim. Gail explains that the trial court’s authority under the Family Code is
limited to modifying the terms of court-ordered maintenance, which is separate and
distinct from contractual alimony. Because the final decree of divorce expressly
provides that John is to pay contractual alimony, Gail argues that the trial court has
no authority to even consider the Family Code Claim.

      Gail’s argument is more merits-based than jurisdictional. A trial court has
ample authority under the Family Code to modify the terms of a divorce decree.
See, e.g., Tex. Fam. Code § 8.057. Gail contends that a modification could not
happen here because the grounds set forth in John’s petition are not recognized
under the Family Code. But whether John has stated valid grounds for relief under
the Family Code does not answer whether the trial court has jurisdiction over this
modification proceeding. A court can have jurisdiction even where the plaintiff is
incapable of prevailing. See, e.g., Brown v. De La Cruz, 156 S.W.3d 560, 569
(Tex. 2004) (rendering a judgment that the plaintiff take nothing, rather than
dismissing the case for want of jurisdiction, after concluding that the plaintiff could
have no private cause of action under the Property Code).

      A trial court’s jurisdiction, like ours, is established by constitutional and
statutory enactments. See Tex. Const. art. V, § 8; Tex. Gov’t Code 24.007. The
court in this case, the 247th Judicial District Court, has the same jurisdiction that is
generally afforded to all trial courts in the state, but the Legislature has instructed
that it “shall give preference to family law matters.” See Tex. Gov’t Code
§ 24.424(b). These matters include “divorce and marriage annulment.” Id.
§ 24.601(b)(3).

      John sought a modification of his divorce decree, which clearly falls within
the scope of a “family law matter.” We therefore conclude that the trial court has
subject-matter jurisdiction over the Family Code Claim. That claim must now be

                                           9
remanded to the trial court for it to determine, in the first instance, whether the
claim has any merit. We express no opinion as to how the trial court should rule,
nor do we comment on whether the trial court acted properly or improperly by
reducing John’s alimony obligation in the first modification proceeding.

                             CONTRACT CLAIM

      In his second and third issues, John challenges the trial court’s summary
judgment, which dismissed his Contract Claim on traditional and no-evidence
grounds.

      As indicated above, the Contract Claim is a collection of many different
contract theories asserted by John to void or discharge his duty to pay contractual
alimony. We address one of the contract theories, frustration of purpose, in the
context of Gail’s no-evidence motion for summary judgment, and we address the
remainder through the lens of Gail’s traditional motion. We begin with the no-
evidence motion. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004).

I.    No-Evidence Motion

      “Frustration of purpose” is an excuse to performance that is sometimes
described as “impossibility of performance” or “commercial impracticability.” See
Ramirez Co. v. Hous. Auth. of City of Houston, 777 S.W.2d 167, 173 n.11 (Tex.
App.—Houston [14th Dist.] 1989, no writ). Under this theory, an obligor may be
excused from performing a contract if an event occurs and the contract was made
on the basic assumption that the event would not occur. See Restatement (Second)
of Contracts § 261; Chevron Phillips Chem. Co. v. Kingwood Crossroads, L.P.,
346 S.W.3d 37, 52 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).



                                        10
      Texas has recognized three contexts in which the excuse may be available:
(1) the death or incapacity of a person necessary for performance, (2) the
destruction or deterioration of a thing necessary for performance, and (3) a change
in the law that prevents a person from performing. See Tractebel Energy Mktg.,
Inc. v. E.I. Du Pont De Nemours & Co., 118 S.W.3d 60, 65 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied).

      To be excused under this theory, John had to show supervening
circumstances that made his performance impossible. See Centex Corp. v. Dalton,
840 S.W.2d 952, 954 (Tex. 1992). John alleged that he met this standard for two
reasons, both of which were asserted under the Family Code Claim. First, John
alleged that Gail’s economic situation has dramatically improved, such that she no
longer needs to receive alimony to meet her reasonable needs. Second, he alleged
that his own economic situation has deteriorated because he has incurred
significant debt and he has taken on additional dependents.

      In her no-evidence motion for summary judgment, Gail asserts that she is
entitled to judgment as a matter of law because there is no evidence that John’s
performance has actually become impossible.

      When a movant asserts that there is no evidence of one or more essential
elements of a claim, the burden rests with the nonmovant to present evidence
raising a genuine issue of material fact as to the elements specified in the motion.
See Tex. R. Civ. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
(Tex. 2006). We will sustain a no-evidence motion when (1) there is a complete
absence of evidence of a vital fact, (2) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact,
(3) the evidence offered to prove a vital fact is no more than a mere scintilla, or
(4) the evidence conclusively establishes the opposite of the vital fact. See City of

                                         11
Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). The evidence is insufficient if
it is so weak as to do no more than create a mere surmise or suspicion that the
challenged fact exists. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l
Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009).

      John attached many exhibits to his summary-judgment response. Several of
those exhibits purport to show that Gail has ample financial resources at her
disposal. Some exhibits also support John’s claim that he has financial obligations
outside of his contractual alimony.

      We need not determine whether the trial court properly sustained Gail’s
objections to any of these exhibits. Even if we assumed that the exhibits were
authenticated and admissible, they do not support John’s claim that his
performance has become impossible. At best, the exhibits show that John’s
performance is more difficult now than in 1998, when he originally agreed to the
contractual alimony. John’s performance cannot be excused simply because it has
become economically burdensome. See Huffines v. Swor Sand & Gravel Co., Inc.,
750 S.W.2d 38, 40 (Tex. App.—Fort Worth 1988, no writ).

      Because there is no evidence that John’s performance has been made
impossible by a supervening circumstance, we conclude that his frustration of
purpose theory fails as a matter of law. The trial court correctly granted Gail’s no-
evidence motion on this point.

II.   Traditional Motion

      In his current petition, John alleges that his contractual alimony should be
voided for other reasons that were discoverable at the time of contract formation.
Those reasons are lack of consideration, unconscionability, undue influence,
duress, extrinsic fraud, and mistake of fact.


                                          12
      In her traditional motion, Gail argues that res judicata precludes John from
relitigating his claims of lack of consideration and unconscionability. She argues
that the other claims are also barred because they could have been raised in the first
modification proceeding.

      The doctrine of res judicata holds that a final judgment bars the parties and
their privies from bringing a second suit not only on matters actually litigated, but
also on causes of action or defenses which arise out of the same subject matter and
which might have been litigated in the first suit. See Compania Financiara Libano,
S.A. v. Simmons, 53 S.W.3d 365, 367 (Tex. 2001) (per curiam). Res judicata is an
affirmative defense, and to prove it, the defendant must show each of the following
elements: (1) a prior final judgment on the merits by a court of competent
jurisdiction; (2) identity of the parties or those in privity with them; and (3) a
second action based on the same claims that were raised or could have been raised
in the first action. See Tex. R. Civ. P. 94; Citizens Ins. Co. of Am. v. Daccach, 217
S.W.3d 430, 449 (Tex. 2007).

      As the movant below, Gail carried the burden of conclusively establishing
all elements of her affirmative defense. See Friendswood Dev. Co. v. McDade &
Co., 926 S.W.2d 280, 282 (Tex. 1996) (per curiam). Only if she proved her case
did the burden shift to John to raise an issue of material fact. See Tex. R. Civ. P.
166a(c); Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). We
review the trial court’s summary judgment de novo, considering all of the evidence
in the light most favorable to John. See Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003).

      Gail did not attach to her motion a copy of the prior judgment, but the
judgment was contained in the court’s own files, and the court was allowed to take

                                         13
judicial notice of that judgment. See Tex. R. Civ. P. 166a(c) (proper summary-
judgment evidence includes “authenticated and certified public records, if any, on
file at the time of the hearing”); Sparkman v. Kimmey, 970 S.W.2d 654, 659 (Tex.
App.—Tyler 1998, pet. denied) (trial court could consider its own files in
summary-judgment action based on res judicata). Moreover, John judicially
admitted in his petition that there is a prior final judgment, and Gail was entitled to
rely on that admission in her motion for summary judgment. See Tex. R. Civ. P.
166a(c) (proper summary-judgment evidence includes the “admissions” of the
parties); H20 Solutions, Ltd. v. PM Realty Group, LP, 438 S.W.3d 606, 620 (Tex.
App.—Houston [1st Dist.] 2014, pet. denied). We conclude that the first element of
res judicata has been conclusively established.

      The record shows that the prior judgment was between just John and Gail.
Thus, Gail conclusively established that the first modification proceeding involved
the same parties as the current modification proceeding. The second element has
been met.

      To prove the third element, Gail attached to her motion a copy of the petition
from the first modification proceeding. In that petition, John alleged that his
agreement lacked consideration “because there was no detriment to [Gail], (i.e.,
forbearance, loss or responsibility), in the undertaking of the benefits.” John also
alleged that the agreement was unconscionable and overreaching because his
obligations continued indefinitely until Gail remarried or died.

      In the current modification proceeding, John alleges a lack of consideration
because he received nothing of value from Gail. He further alleges that the
agreement is unconscionable because the terms are grossly one-sided. Because
these are the exact same theories that were raised and rejected in the first
modification proceeding, the doctrine of res judicata prevents John from

                                          14
relitigating them now. As to the claims of lack of consideration and
unconscionability, Gail demonstrated that she is entitled to judgment as a matter of
law.

       John did not allege undue influence, duress, extrinsic fraud, or mistake of
fact during the first modification proceeding, but Gail argues in her motion that he
could have raised these claims. We agree. All of these claims relate to issues of
contract formation.1 Thus, they are claims that were known or should have been
known at the time of the first modification proceeding, and with reasonable
diligence, could have been brought at that time. Res judicata bars John from
asserting those claims in a second action. Cf. In re Estate of Cantu, No. 04-10-
00389-CV, 2011 WL 446640, at *2 (Tex. App.—San Antonio Feb. 9, 2011, no
pet.) (mem. op.) (res judicata barred a will contestant from asserting forgery in a
second action where the contestant previously attempted to set aside the will on the
basis of undue influence and lack of testamentary capacity); Martinez v.
Arredondo, 406 S.W.2d 513, 514 (Tex. Civ. App.—Beaumont 1966, no writ) (res
judicata barred a will contestant from raising undue influence in a second action
where the contestant previously attempted to set aside the will on the basis that the
testatrix was bound by a prior irrevocable will).

       1
         The factual bases for John’s claims are not set forth in his petition to modify. During a
deposition and in his summary-judgment response, John explained that Gail unduly influenced
him with feelings of guilt. He also asserted that his undue influence claim arose from a
misperception that he and Gail were using the same attorney during the divorce.
       For his duress claim, John explained that Gail threw a knife at him “months” before the
divorce, and she sent an embarrassing email to his coworkers during the divorce.
        For his fraud claim, John explained that there were discussions that his alimony
obligations would not create “a forever situation.” He also asserted that Gail misled him into
believing that they had the same attorney during the divorce, when in fact, only she had
representation.
      For his mistake claim, John explained that there was a belief that the contractual alimony
would only be temporary.

                                               15
      We hold that Gail conclusively established her affirmative defense as to each
of John’s contract theories, excluding frustration of purpose. The burden then
shifted to John to show that summary judgment was improper.

      John did not raise any specific fact questions as to Gail’s affirmative
defense. On this issue, his summary-judgment response contained just three short
sentences:

      The court should not be persuaded by [Gail’s] argument to the effect
      that [John’s] contractual defenses are barred by res judicata. First, no
      court in Texas has yet held that contractual defenses to the
      enforcement of an alimony agreement are compulsory claims, as
      opposed to merely permissive claims, in a modification proceeding
      governed under the family code. Second, some of the contractual
      defenses raised now, including frustration of purpose, might not have
      arisen at the time of the previous modification.

      The premise in John’s first point is faulty. The Contract Claim seeks a
termination of John’s contractual alimony, not a modification of it. The claim is
therefore governed by the law of contracts. See McGoodwin v. McGoodwin, 671
S.W.2d 880, 882 (Tex. 1984) (“[A property settlement] agreement, though
incorporated into a final divorce decree, is treated as a contract, and its legal force
and its meaning are governed by the law of contracts, not by the law of
judgments.”). Furthermore, it is well-established that res judicata applies to actions
sounding in contract. See Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav.,
837 S.W.2d 627, 631 (Tex. 1992).

      The second point lacks merit as well. Gail did not argue in her traditional
motion that res judicata barred John’s claim for frustration of purpose. Instead, she
argued that the other contract theories were barred because they were known, or
should have been known, at the time of the first modification hearing. John did not
cite or produce any evidence showing that he was incapable of asserting these

                                          16
other theories in his first lawsuit. Because John failed to raise a fact issue, we
conclude that Gail is entitled to judgment as a matter of law.

                                 PUBLIC POLICY

      In his last issue, John argues that the terms of his contractual alimony are
“antithetical to centuries-old public policy.” John bases this broadly-worded
argument on two separate points, which we address in turn.

      John first claims that his alimony obligations are against public policy
because they were not reduced to writing before the trial court rendered the final
decree of divorce. We are not aware of any requirement that there be a prior
written manifestation of the parties’ agreement. The case law actually holds that
the decree itself may operate as the written manifestation of the parties’ agreement.
See Mackey v. Mackey, 721 S.W.2d 575, 579 (Tex. App.—Corpus Christi 1986, no
writ) (“[I]t is not necessary that there be a written agreement separate and apart
from the agreed decree.”).

      John’s second policy argument focuses on the indefinite nature of his
alimony obligation. He describes his obligation as “perpetual,” and contends that
this is contrary to the terms of court-ordered spousal maintenance. The comparison
is not appropriate however. John’s obligation is contractual, rather than court-
ordered, and the terms of his contract do not have to adhere to the same sorts of
terms that might otherwise restrict a court.

      John was free to negotiate different terms during the pendency of his
divorce, but he did not. A deal is a deal, and we will enforce John’s contractual
obligation to the fullest extent that the law of contracts will allow. See, e.g.,
Cardwell v. Sicola-Cardwell, 978 S.W.2d 722, 728 (Tex. App.—Austin 1998, pet.
denied) (holding that obligor’s estate was bound to pay contractual alimony even


                                          17
after the obligor’s death). The terms of his contractual alimony are not void for
being against public policy. See Francis v. Francis, 412 S.W.2d 29, 33 (Tex. 1967)
(“[O]bligations assumed by the husband in separation agreements or contracts to
make payments for the support of the wife after divorce becomes final are not
obligations to pay alimony and do not violate the public policy of this State.”).

                                   CONCLUSION

      Without reaching the merits of John’s fourth issue, we reverse the trial
court’s judgment to the extent that it erroneously disposes of the Family Code
Claim, and we remand the case to the trial court for an adjudication of that claim.
In all other respects, the trial court’s judgment is affirmed.




                                        /s/     Tracy Christopher
                                                Justice



Panel consists of Justices Christopher, Donovan, and Wise.




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