i          i     i                                                                 i       i      i




                                MEMORANDUM OPINION

                                       No. 04-07-00691-CV

                                       Mario MARTINEZ,
                                            Appellant

                                                 v.

                                       Melinda COSTILLA,
                                             Appellee

                   From the 83rd Judicial District Court, Val Verde County, Texas
                                       Trial Court No. 26243
                           Honorable Carl Pendergrass, Judge Presiding

Opinion by:      Alma L. López, Chief Justice

Sitting:         Alma L. López, Chief Justice
                 Catherine Stone, Justice
                 Sandee Bryan Marion, Justice

Delivered and Filed: September 10, 2008

REVERSED AND RENDERED

           Mario Martinez (“Martinez”) and Melinda Costilla (“Costilla”) are the parents of two

children, Mario A. Martinez (“Mario”) and Cecilia Ann Martinez (“Cecilia”). Martinez appeals the

trial court’s judgment awarding Costilla damages for Martinez’s breach of a contractual provision

to pay one-half of the children’s college expenses which was contained in the parties’ 1994 final

divorce decree. In his first issue on appeal, Martinez contends that the contractual provision in the

1994 divorce decree is not enforceable as a contract based on section 14.06 of the Texas Family
                                                                                                     04-07-00691-CV


Code. Alternatively, in his second issue, Martinez asserts that his obligation under the provision

ceased to exist because Mario was not enrolled on a full-time basis. We reverse the trial court’s

judgment, and we render judgment that Costilla recover damages from Martinez in the sum of

$2,150.14.

                                      ENFORCEABILITY OF PROVISION

         In his first issue, Martinez contends that the contractual provision was not enforceable under

section 14.06 of the Texas Family Code1 because: (1) the provision did not expressly state that it was

enforceable as a contract; and (2) no written agreement existed because Martinez did not sign the

1994 divorce decree. Martinez failed to assert either of these arguments before the trial court.

         The only argument Martinez raised before the trial court with regard to the enforceability of

the provision in question was that section 153.007(c) of the Texas Family Code expressly prohibited

its enforcement as a contract. Martinez belatedly made this argument on the day of trial in a motion

to dismiss. Martinez’s argument in his motion failed to take into consideration that section

153.007(c) is contained in Chapter 153 of the Texas Family Code governing Conservatorship,

Possession, and Access, and section 153.007 addresses agreements containing provisions for

conservatorship and access.2 TEX. FAM. CODE ANN. § 153.007 (Vernon Supp. 2008). Martinez’s

motion failed to cite section 14.06 or address its subsequent codification and the applicability of the

         1
           With respect to “Child Support,” section 14.06 was recodified in 1995 as section 154.124 of the Texas Family
Code. Act of April 6, 1995, 74th Leg., R.S., ch. 20 § 1, 1995 Tex. Gen. Laws 113, 162. At that time, section 154.124
provided, “Terms of [an agreement between the parties containing provisions for support of the child] may be enforced
by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as contract terms
unless provided by the agreement.” Id. (emphasis added). Section 154.124 was amended in 2003 to delete the phrase
“unless provided by the agreement.” TEX. FAM. CODE ANN. § 154.124 (Vernon Supp. 2008); Act of May 20, 2003, 78th
Leg, R.S., ch. 480 § 1, 2003 Tex. Gen. Laws. 1747. The amendment applies only to an agreement concerning child
support entered into on or after September 1, 2003. Act of May 20, 2003, 78th Leg, R.S., ch. 480 § 2, 2003 Tex. Gen.
Laws. 1747.
         2
         As opposed to Chapter 154 of the Texas Family Code governing “Child Support,” and section 154.124
addressing agreements pertaining to child support. TEX. FAM. CODE ANN. § 154.124 (Vernon Supp. 2008).

                                                          -2-
                                                                                       04-07-00691-CV


subsequent amendments to the codified section. A party will not be permitted to take a position on

appeal that is not presented in the trial court. Mandell v. Hamman Oil & Refining Co., 822 S.W.2d

153, 162-63 (Tex. App.—Houston [1st Dist.] 1991, writ denied); see also Alamo Fireworks, Inc. v.

Truckload Fireworks, Inc., No. 08-01-00229-CV, 2002 WL 313191, at *7 (Tex. App.—El Paso

Feb. 28, 2002, no pet.) (noting error not preserved where trial argument was very different from one

complained of on appeal) (not designated for publication); In re M.J.M.L., 31 S.W.3d 347, 353

(Tex. App.—San Antonio 2000, pet. denied) (noting error not preserved where issue on appeal was

different from one urged at trial). Because Martinez failed to present the complaints made in his

first issue to the trial court, they are not preserved for our review.

                                    CESSATION OF OBLIGATION

        In his second issue, Martinez asserts that his obligation under the provision ceased because

both children were not enrolled in college on a full-time basis. Costilla responds that the trial court

properly concluded that the parties’ intent was to provide for the education of their children.

        The provision in dispute reads as follows:

        CONTRACTUAL CHILD SUPPORT
                Petitioner, MELINDA MARTINEZ and Respondent, MARIO MARTINEZ,
        hereby consent and contract that additional child support for the children, in addition
        to the court ordered child support decreed above, will be provided for the children’s
        expenses for attending any school of higher learning beyond the high school level.
        Both Petitioner and Respondent agree to pay one-half each for expenses such as
        tuition, room and board, books and travel for each child’s expenses for their
        education beyond high school level. This contract is in effect as long as any of the
        children are enrolled in a school of higher learning on a full-time basis, (the child
        must be enrolled for a minimum of twelve (12) hours or more during any semester
        at the institution). The contract will cease if any of the children are not enrolled
        on a full-time basis and will not extend beyond five years after each child
        graduates from high school.




                                                  -3-
                                                                                      04-07-00691-CV


(emphasis added). In his brief, Martinez argues that the term “any” means “one or both;” therefore,

because Mario was not enrolled on a full-time basis, the contract ceased as to both children.

Alternatively, Martinez asserts that the second sentence could be interpreted to mean the contract

would only cease for any child who does not attend school on a full-time basis; therefore, the

contract only ceased with regard to Mario but not Cecilia. Although Costilla criticizes the

interpretation proffered by Martinez, she does not offer an alternative interpretation that would

harmonize the problematic use of the term “any” in the final two sentences.

       An agreed divorce decree is a contract subject to the usual rules of contract interpretation.

McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984); Guerrero v. Guerra, 165 S.W.3d

778, 782 (Tex. App.—San Antonio 2005, no pet.). Our primary concern in interpreting a contract

is ascertaining the true intent of the parties. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118,

121 (Tex. 1996). We examine the writing as a whole in an effort to harmonize and give effect to

all the provisions of the contract so that none will be rendered meaningless. Coker v. Coker,

650 S.W.2d 391, 393 (Tex. 1983); Guerrero, 165 S.W.3d at 782. We presume that the parties to a

contract intend every clause to have some effect, and we give terms their plain, ordinary, and

generally accepted meaning unless the instrument shows that the parties used them in a technical

or different sense. Heritage Res., Inc., 939 S.W.2d at 121. If the contract can be given a certain or

definite legal meaning or interpretation, then it is not ambiguous, and the court will construe it as

a matter of law. Coker, 650 S.W.2d at 393; Guerrero, 165 S.W.3d at 782. If, however, a contract

is capable of more than one reasonable interpretation, it is ambiguous. Am. Mfrs. Mut. Ins. Co. v.

Schaefer, 124 S.W.3d 154, 157 (Tex. 2003); Guerrero, 165 S.W.3d at 782. Merely because the

parties argue different interpretations does not make an agreement ambiguous.             Guerrero,



                                                 -4-
                                                                                        04-07-00691-CV


165 S.W.3d at 782. This court will enforce an unambiguous contract as written. Heritage Res., Inc.,

939 S.W.2d at 121.

        Although Costilla drafted her pleadings in an effort to avoid the fact that Mario was not

enrolled in college during the fall semester of 2005, the evidence is undisputed that he was on

scholastic dismissal that semester from the University of Texas at Austin, and Costilla testified, “He

had to sit out a semester and that’s the reason why he did not attend in fall of 2005.” Accordingly,

the evidence is undisputed that Mario was not enrolled on a full-time basis during the fall semester

of 2005.

        While we agree that the parties’ intent was to provide for their children’s education, the

language used reveals that the parties also intended to place certain limits on their willingness to do

so. Although the contractual language provides that the contract will remain in effect as long as

“any” of the children are enrolled in a school of higher learning on a full-time basis, it also provides

that the contract will cease if “any” of the children are not enrolled on a full-time basis. Although

these provisions appear to conflict, we must examine the writing as a whole in an effort to

harmonize and give effect to all the provisions of the contract, and we presume the parties intended

every clause to have some effect. Heritage Res., Inc., 939 S.W.2d at 121; Coker, 650 S.W.2d at 393;

Guerrero, 165 S.W.3d at 782. The final sentence of the provision states, “The contract will cease

if any of the children are not enrolled on a full-time basis and will not extend beyond five years after

each child graduates from high school.” Because the prior sentence provided the contract would

remain in effect if any of the children, meaning either child, was enrolled on a full-time basis, the

parties could not have intended for the contract to cease as to both children if either child was not

enrolled on a full-time basis. By referring to “each child” in the final predicate phrase, the language



                                                  -5-
                                                                                                   04-07-00691-CV


of the two sentences in context reveals the parties’ intent that the contractual obligation would

continue if either child was enrolled on a full-time basis, but that the obligation would end at

different times for each child. Thus, the contractual obligation would cease as to a given child if that

child: (1) was not enrolled on a full-time basis; or (2) was still attending college more than five years

after he or she graduated from high school. This interpretation harmonizes and gives effect to all

the provisions of the contract and is consistent with the parties’ intent to provide for the children’s

education with certain limitations.

        Because Mario was not enrolled on a full-time basis during the fall semester of 2005,

Martinez was not contractually obligated to pay for one-half of his expenses after that date.

Martinez was, however, contractually obligated to pay one-half of Cecilia’s expenses.

                                                 CONCLUSION

        The trial court’s judgment is reversed, and judgment is rendered that Costilla recover

damages from Martinez in the sum of $2,150.14.3

                                                              Alma L. López, Chief Justice




        3
         This sum is based on the following calculation:
        Fall 2005         Tuition paid      $1065.50
                          Books paid        $ 463.50
        Spring 2006       Tuition paid      $ 641.50 ($1041.50 from Costilla’s petition less $400 grant credit)
                          Books paid        $ 129.96 ($194.06 from Costilla’s petition less $64.10 return credit)
        Fall 2006         Tuition paid      $ 826.50
                          Books paid        $ 463.31
        Spring 2007       Tuition paid      $ 710.00 ($1110 from petition less $400 grant credit)
                                            $4300.27 divided by 2 = $2,150.14

                                                        -6-
