                             NUMBER 13-09-00563-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

PATRICIA M. JOHNSON,                                                         Appellant,

                                            v.

WAYNE VENTLING,                                                               Appellee.


                    On appeal from the 94th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION
       Before Chief Justice Valdez and Justices Yañez and Garza
                Memorandum Opinion by Justice Garza
       Appellant, Patricia M. Johnson, challenges the trial court’s denial of her motion to

enforce contractual alimony provisions agreed to by appellee, Wayne Ventling. By two

issues, Johnson contends: (1) that the trial court erred in determining that the contractual

alimony provisions were unenforceable; and (2) that she is entitled to a judgment of

$142,500, representing the amount of alimony alleged to be due from Ventling, as well as

interest and attorney’s fees. We reverse and remand.

                                     I. BACKGROUND

       This case involves a thirteen-year romantic relationship which devolved into a

fifteen-year series of legal liaisons. Johnson and Ventling cohabited from 1982 to 1995.

Following the advice of his attorney that a common-law marriage existed and that a formal
decree regarding property division was in his best interest, Ventling filed for divorce. The

parties consented to the terms of the divorce and a “Final Decree of Divorce” was entered

on April 13, 1995. The decree stated that “the relationship between [Ventling] and

[Johnson] is dissolved” and provided for the disposition of the parties’ community property,

including a lump sum payment to be made from Ventling to Johnson in the amount of

$25,537. The decree, which was signed by the trial court as well as both parties and their

attorneys,1 further stated as follows:

        Alimony

                It is the mutual desire of the parties to provide a continuing measure
        of support for [Johnson] after the dissolution of the relationship between the
        parties. These support payments undertaken by [Ventling] are intended to
        qualify as contractual alimony as that term is defined in section 71(a) of the
        Internal Revenue Code of 1986 (“the Code”), as amended, and are intended
        to be includable in the gross income of [Johnson] under section 71(a) of the
        Code and deductible by [Ventling] under section 215(a) of the Code. All
        provisions of this article will be interpreted in a manner consistent with that
        intention.

                Contractual Obligations

               This alimony obligation undertaken by [Ventling] is contractual in
        nature and is not an obligation imposed by order or decree of court.

                Terms, Conditions, and Contingencies

                Amount. [Ventling] will pay to [Johnson] $2,500.00 per month as and
        for alimony.

                ....

             Term. The payments will be for eighty-four (84) months with the last
        payment being March 1, 2002.

                ....

               Default and Acceleration. [Ventling] agrees that time is of the essence
        in the payment of the periodic alimony payments. If default is made by
        [Ventling] in the prompt payment of any periodic amounts due under the
        terms of this agreement and such default continues for a period of more than
        60 days, the entire remaining alimony obligation of [Ventling], at the option
        of [Johnson], shall then be accelerated and shall become immediately due
        and payable, together with an amount sufficient to reimburse [Johnson] for
        any tax and/or penalty resulting from such default by [Ventling].

         1
           The parties’ signatures on the final decree appeared at the conclusion of the docum ent underneath
the following statem ent: “APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE.”

                                                     2
              ....

       Clarifying Orders

              Without affecting the finality of this Decree of Divorce, this Court
       expressly reserves the right to make orders necessary to clarify and enforce
       this decree.

       In October of 1995, Johnson filed a motion for enforcement, contending that

Ventling failed to deliver certain community property to her as provided in the decree. In

response, Ventling filed a cross-motion for enforcement. The parties settled this dispute.

Johnson then filed a second motion for enforcement in September of 1997, alleging that

Ventling had (1) failed to make the $25,537 lump sum payment as required by the decree,

and (2) failed to make the last three alimony payments. Johnson sought acceleration of

the entire alimony amount as provided in the decree.          In response to this second

enforcement motion, Ventling raised a novel defense, arguing that the parties had in fact

never been married. Contending that Johnson had deceived him into believing that they

were in a common-law marriage, Ventling asked the trial court to: (1) vacate the 1995

decree; (2) rescind the parties’ agreement “on the grounds of mistake, accident, fraud,

laches, limitations, and failure of consideration”; and (3) “non-suit” his divorce action.

Although more than two years had passed since the trial court’s entry of the final decree,

Ventling asserted that the trial court retained plenary power to vacate the decree because,

assuming the parties were never actually married, the decree merely stated the parties’

rights as to their jointly-owned property and was not a final judgment completely disposing

of his divorce action. See Tex. Prop. & Cas. Ins. Guar. Ass’n v. De Los Santos, 47 S.W.3d

584, 587 (Tex. App.–Corpus Christi 2001, no pet.) (“A judgment which settles all the legal

issues and rights between the parties is final and appealable.”) (citing Hinde v. Hinde, 701

S.W.2d 637, 639 (Tex. 1985) (per curiam)).

       Johnson later moved for summary judgment on her enforcement motion. In arguing

the motion before the trial court, Johnson’s attorney announced that the parties had




                                             3
stipulated that they were, in fact, never married.2 Ventling stipulated that he, in fact, had

not made the payments as required by the 1995 decree. The trial court then denied

Johnson’s motion for summary judgment, granted Ventling’s request to “non-suit” the

divorce action, and authorized Johnson to amend her pleadings. Johnson did so, alleging

that the parties were involved in a “domestic partnership” for thirteen years and asking the

trial court to enforce the community property disposition as provided in the 1995 decree.

        Following various continuances and delays, the parties returned to the trial court for

a hearing on March 16, 2001. At that time, Ventling reiterated his position that Johnson

had fraudulently induced him into believing that they were married and that, but for this

inducement, he would not have agreed to the terms of the 1995 decree. In an order dated

July 25, 2001, the trial court concluded that “the agreed judgment remains interlocutory,”

vacated the 1995 decree “pursuant to the Court’s continuing plenary power,” and

dismissed the case by approving Ventling’s “non-suit” of the divorce action. The trial court

also awarded attorney’s fees to Ventling.3

        Johnson appealed this judgment, and we concluded that the trial court lacked

jurisdiction to vacate the 1995 decree. Johnson v. Ventling, 132 S.W.3d 173, 179 (Tex.

        2
          Johnson testified that she was receiving m ilitary widow’s benefits from a prior m arriage, and that
those benefits would term inate if she rem arried.
        3
            After the July 25, 2001 judgm ent, the trial court entered the following findings of fact:

        Nowhere in the order of April 13, 1995, or any other order, judgm ent, or decree before or
        since, did the Trial Court find the parties to be m arried. In fact, subsequently, by judicial
        stipulation and finding by the Trial Court, it was resolved that [the parties] were not and had
        never been m arried. In the absence of a m arriage, there was no com m unity property estate,
        or existence of a spousal relationship . . .

        The Trial Court and [Ventling] were of the opinion and conclusion on April 13, 1995, that the
        purpose of that hearing was granting unto the parties a divorce, and term inating their m arital
        status. The Court and [Ventling] would not discover until after April 13, 1995, that [Johnson]
        denied the existence of a m arriage relationship . . .

The court further pronounced the following conclusions of law:

        A decree or court order which includes a provision for the paym ent of alim ony, even
        contractual alim ony, suffers from a failure of consideration if in fact the parties are not and
        were never m arried . . .

        A m oney judgm ent to equalize, or m ade incident to effecting a just and right division of
        com m unity property, is a legal nullity and a legal fiction, when in fact the parties were never
        m arried and thus, as a m atter of law, there can be no com m unity property estate. A
        judgm ent upon such grounds fails for want of consideration.

                                                         4
App.–Corpus Christi 2004, no pet.). Although the parties agreed that they were never

married, we nevertheless held that the 1995 decree “was a final divorce judgment and not

interlocutory at the time the trial court signed the 2001 judgment.” Id. at 178. Because the

decree was a final judgment, the trial court’s plenary jurisdiction to vacate the decree

expired thirty days after it was signed. Id.; see TEX . R. CIV. P. 329b(d). We further

concluded that “the decree contained findings sufficient to establish the jurisdictional basis

for a valid judgment,” and therefore, “the decree is not void and may not be collaterally

attacked.” Johnson, 132 S.W.3d at 178 (citing Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.

2003) (“In general, as long as the court entering a judgment has jurisdiction of the parties

and the subject matter and does not act outside its capacity as a court, the judgment is not

void.”); Toles v. Toles, 113 S.W.3d 899, 914 (Tex. App.–Dallas 2003, pet. denied)).

Because the trial court had no jurisdiction to sign the 2001 judgment vacating the 1995

decree, we dismissed the appeal for want of jurisdiction. Id. at 179.

        Johnson then instituted proceedings in Iowa, where Ventling resided, seeking to

domesticate the 1995 decree and enforce the alimony provisions in that state. In an order

dated January 30, 2007, the Iowa court allowed enforcement of the $25,537 lump sum

property division payment but disallowed enforcement of the contractual alimony

provisions, noting that the obligations expressed therein did not constitute a “judgment”

enforceable in Iowa. Johnson then returned to Texas in an effort to secure such a

judgment. Specifically, Johnson sought a judgment for the total amount of Ventling’s

alimony obligations, accelerated according to the terms of the decree, as well as damages

for adverse tax consequences and attorney’s fees. In response, Ventling again asserted

defenses of fraud, accident, mistake, estoppel, illegality, res judicata, statute of limitations,

failure of consideration, and statute of frauds. On June 16, 2009, the trial court rendered

judgment in favor of Ventling, denying all relief requested by Johnson.4 The trial court


        4
          The June 16, 2009 judgm ent was at least the third final judgm ent rendered by the trial court in this
case. After a hearing on January 16, 2009, the trial court rendered its original judgm ent on March 11, 2009
granting Johnson’s m otion for enforcem ent and awarding to Johnson: (1) $306,375, representing the
outstanding alim ony balance and accrued interest; (2) $61,121.20, representing dam ages for adverse tax

                                                       5
subsequently entered the following findings of fact and conclusions of law:

        Findings of Fact

        1.       On April 13, 1995, the Trial Court signed a final judgment in the above
                 entitled and numbered cause;

        2.       The final judgment included a separate provision that Wayne Ventling
                 pay Patricia M. Johnson spousal alimony in the amount of $2,500.00
                 per month for a term of 84 months;

        3.       On September 26, 1997, Patricia Johnson filed a Motion to Enforce
                 the judgment, alleging a failure by Wayne Ventling to pay money due
                 her in the April 13, 1995 judgment, and a failure to make spousal
                 alimony payments;

        4.       An Answer to the enforcement suit was filed by Wayne Ventling, in
                 which affirmative defenses were raised;

        5.       No jury was demanded by either party, and all matters of fact and of
                 law were submitted to the Trial Court for resolution.

        6.       The alimony provision of the final decree of divorce signed April 13,
                 2005, as stated in the decree on page 7, was intended to qualify as
                 contractual alimony as that term was defined in section 71(a) of the
                 Internal Revenue Code of 1986.

        Conclusions of Law

        7.       Texas Family Code Chapter 9 provides that a party affected by a
                 decree of divorce providing for a division of property “as provided by
                 Chapter 7" may request enforcement of that decree.

        8.       Chapter 7 of the Texas Family Code allows a trial court, in a decree
                 of divorce, to order a division of the estate of the parties.

        9.       As the [sic] Patricia M. Johnson has openly confessed that the parties
                 were never married, and were never divorced, whatever property or
                 property rights which may have been acquired or accumulated by or
                 between them prior to April 13, 1995, was not community property.

        10.      On the date this court’s final judgment was signed in this case, April
                 13, 1995, a trial court judgment or court order judicially imposing the
                 payment of spousal alimony was void because alimony, as defined in
                 26 United States Code 71, requires the existence of a marriage. The
                 provisions within the 1995 Decree pertaining to alimony are therefore


consequences and accrued interest; (3) $60,863.46, representing the lum p sum property settlem ent paym ent
and accrued interest; and (4) $76,620.38 in attorney’s fees, $9,070.23 in court costs, $7,500 in attorney’s fees
in the event of an appeal to this court and $5,000 in attorney’s fees in the event of an appeal to the Texas
Suprem e Court. On April 13, 2009, the trial court rendered an am ended final judgm ent (1) om itting the
interest on the outstanding alim ony, (2) om itting the dam ages for adverse tax consequences, and (3) awarding
a reduced am ount of attorney’s fees. Finally, after a second hearing on June 9, 2009, the trial court vacated
the two previous judgm ents and rendered its judgm ent denying Johnson’s m otion for enforcem ent in its
entirety.

                                                       6
                  not enforceable.

         11.      Patricia Johnson’s motions to enforce the Decree and her request for
                  judgment on the balance she alleges is due for alimony payments
                  under the Decree must be denied.

         12.      Patricia Johnson’s Declaratory Judgment Action seeking a declaration
                  that she is entitled to alimony under the 1995 Decree must be denied.

         13.      Patricia Johnson’s claims for attorneys fees are denied.

         14.      Patricia Johnson’s claim for post judgment interest is denied.

This appeal followed.5

                                                 II. DISCUSSION

         On appeal, Johnson argues by two issues that the trial court erred in denying her

motion to enforce the contractual alimony provisions of the 1995 decree.6 By her first

issue, Johnson claims that the trial court erred because: (1) our decision in 2004 is the

“law of the case” and contradicts the trial court’s ruling; (2) Ventling’s affirmative defenses

to Johnson’s enforcement action amounted to an impermissible collateral attack on the

1995 decree; (3) any “irregularity” in the 1995 decree “regarding the parties’ pleaded

common law marital status would at most make the judgment voidable” and therefore not

vulnerable to collateral attack; and (4) the trial court “had a duty to exercise its inherent



         5
            Ventling m oved this Court to dism iss the appeal for want of jurisdiction, contending that Johnson’s
notice of appeal was untim ely. See T EX . R. A PP . P. 26.1 (stating that a notice of appeal m ust be filed within
30 days after the judgm ent is signed, or within 90 days after the judgm ent is signed if any party tim ely files a
m otion to m odify the judgm ent). Johnson filed her notice of appeal on Septem ber 14, 2009, which was ninety
days after the judgm ent was signed. According to Johnson, the notice was tim ely because she had filed a
m otion to vacate the judgm ent on July 21, 2009, thereby extending the deadline for filing a notice of appeal.
See id. Ventling argued that Johnson’s m otion to vacate was itself untim ely and that it therefore did not serve
to extend the deadline. See T EX . R. C IV . P. 329b(g) (stating that a m otion to m odify a judgm ent m ust be filed
within thirty days after the judgm ent is signed). However, although Johnson’s m otion to vacate was file
stam ped by the District Clerk as having been received on July 21, 2009— m ore than thirty days after the
judgm ent was signed—the m otion was actually m ailed by Johnson to the trial court m anager on July 15, 2009.
W e denied Ventling’s m otion to dism iss the appeal because Johnson’s m otion to vacate, having been m ailed
to the trial court m anager within thirty days following the signing of the judgm ent, was sufficient under the
applicable rules to extend the deadline for filing a notice of appeal. See T EX . R. C IV . P. 5 (“If any docum ent
is sent to the proper clerk . . . and is deposited in the m ail on or before the last day for filing sam e, the sam e,
if received by the clerk not m ore than ten days tardily, shall be filed by the clerk and be deem ed tim ely filed.”);
Stokes v. Aberdeen Ins. Co., 917 S.W .2d 267, 268 (Tex. 1996) (“For purposes of determ ining whether a party
files a docum ent tim ely (thereby establishing appellate deadlines), we hold that m ailing the docum ent to the
proper court address is conditionally effective as m ailing it to the proper court clerk’s address.” (Em phasis in
original)).
         6
           Johnson does not challenge the trial court’s judgm ent as it relates to the lum p sum property
settlem ent paym ent or the dam ages for adverse tax consequences as provided in the 1995 decree.

                                                          7
power to enforce the terms” of the decree. By her second issue, Johnson argues that,

because the contractual alimony provisions are in fact enforceable, she is entitled to a

judgment of $142,500, representing the payments due from Ventling, as well as interest

and attorney’s fees.

1.       Standard of Review

         On appeal, a trial court’s conclusions of law are reviewed de novo and will be

reversed only if they are erroneous as a matter of law.7                           Villagomez v. Rockwood

Specialties, Inc., 210 S.W.3d 720, 727, 728 (Tex. App.–Corpus Christi 2006, pet. denied)

(citing Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex. App.–Austin 1999, pet.

denied); Hofland v. Fireman’s Fund Ins. Co., 907 S.W.2d 597, 599 (Tex. App.–Corpus

Christi 1995, no writ)). We will uphold the trial court’s conclusions upon any legal theory

supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794

(Tex. 2002); Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.–Houston [1st Dist.]

1996, no writ).

2.       Applicable Law

         Unlike other forms of spousal maintenance, contractual alimony is not void as being

in violation of state public policy. Birdwell v. Birdwell, 819 S.W.2d 223, 225-27 (Tex.

App.–Fort Worth 1991, pet. denied); see Francis v. Francis, 412 S.W.2d 29, 32-33 (Tex.

1967) (holding that permanent alimony contravenes the public policy of the state).8

Instead, “an assumed obligation for spousal support is properly characterized as a

contractual duty having ‘whatever legal force the law of contracts will give to it.’” Woolam



         7
          In his brief on appeal, Ventling notes correctly that “[f]indings of fact in a case tried to the court have
the sam e force and dignity as a jury’s verdict upon questions.” Anderson v. City of Seven Points, 806 S.W .2d
791, 794 (Tex. 1991); Valley Diagnostic Clinic, P.A. v. Dougherty, 287 S.W .3d 151, 155 (Tex. App.–Corpus
Christi 2009, no pet.). However, only the trial court’s conclusions of law— not its findings of fact— are in
dispute here.
         8
            The Texas Fam ily Code explicitly allows parties to a divorce proceeding to enter into a written
agreem ent concerning spousal m aintenance. See T EX . F AM . C OD E A N N . § 7.006(a) (Vernon 2006). Under
that statute, if the court finds that the term s of such a written agreem ent are “just and right,” those term s then
becom e binding on the court. Id. § 7.006(b). The decree at issue here does not explicitly state whether the
trial court found the term s of the parties’ alim ony agreem ent to be “just and right”; however, the trial court’s
signature on the decree strongly indicates that it approved of the term s contained therein.

                                                         8
v. Tussing, 54 S.W.3d 442, 447 (Tex. App.–Corpus Christi 2001, no pet.) (quoting Francis,

412 S.W.2d at 31). When an agreement for the payment of alimony is executed by the

parties and incorporated into the judgment of divorce, it is binding on the parties and is

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

App.–Dallas 2008, no pet.) (citing O’Benar v. O’Benar, 410 S.W.2d 214, 217 (Tex. Civ.

App.–Dallas 1968, writ dism’d); Vickers v. Vickers, 553 S.W.2d 768, 769-70 (Tex. Civ.

App.–Beaumont 1977, no writ); Pollard v. Steffens, 161 Tex. 594, 602, 343 S.W.2d 234,

239 (1961)). Further, a party’s signature approving the contents of an agreed divorce

decree has been found to be a binding attestation of that party’s agreement to contractual

support provisions, even in the absence of a separate written support agreement. See

Rousseau v. Rousseau Sprecher, 843 S.W.2d 300, 301 (Tex. App.–Houston [14th Dist.]

1992, no writ) (requirement that agreement for contractual alimony must be in writing is

satisfied if divorce decree specifies terms of agreement and parties sign divorce decree);

Mackey v. Mackey, 721 S.W.2d 575, 579 (Tex. App.–Corpus Christi 1986, no writ)

(rejecting the argument that a party’s approval of the form and content of an agreed

divorce decree was merely consent to entry of the decree and not execution of the

contract). “As with any other contract, absent consent of the parties, the provisions of the

agreement will not be modified or set aside except for fraud, accident or mutual mistake

of fact.” Schwartz, 247 S.W.3d 804 (citing Boyd v. Boyd, 545 S.W.2d 520, 523 (Tex. Civ.

App.–Houston [1st Dist.] 1976, no writ)).

       In general, a judgment rendered by consent has the same force as a judgment

entered after protracted litigation, except “to the extent that the consent excuses error and

operates to end all controversy between the parties.” Birdwell, 819 S.W.2d at 226 (citing

McCray v. McCray, 584 S.W.2d 279 (Tex. 1979); Wagner v. Warnasch, 156 Tex. 334, 295

S.W.2d 890, 892 (1956)). “Thus, in suits to enforce agreed judgments, parties may not

raise contractual defenses because such defenses constitute impermissible collateral

attacks on the prior judgments.” Id. at 226-27 (quoting Ex parte Gorena, 595 S.W.2d 841,

844 (Tex. 1979)); see Chess v. Chess, 627 S.W.2d 513, 516 (Tex. App.–Corpus Christi

                                             9
1982, no writ).

3.     Analysis

       We agree in part with Johnson’s argument that our 2004 opinion is the “law of the

case” and contradicts the judgment on appeal. Under the “law of the case” doctrine,

questions of law decided on appeal to a court of last resort will govern the case throughout

its subsequent stages. Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex.

2006) (citing Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). By narrowing the

issues in successive stages of the litigation, the doctrine is intended to achieve uniformity

of decision as well as judicial economy and efficiency. Briscoe v. Goodman Corp., 102

S.W.3d 714, 716 (Tex. 2003). As noted, in 2004 we concluded that the 1995 decree was

a final divorce judgment, is “not void,” and “may not be collaterally attacked.” Johnson, 132

S.W.3d at 178 (citing Putegnat v. Putegnat, 706 S.W.2d 702, 703-04 (Tex. App.–Corpus

Christi 1986, no writ) (“It is well established in Texas that a divorce judgment, unappealed,

and regular on its face, is not subject to a collateral attack in a subsequent suit.”)). The law

of the case doctrine precludes us from reconsidering these issues. See id. Johnson

contends that, because of this, the trial court was compelled to enforce the contractual

alimony provisions contained in the 1995 decree.

       In response, Ventling sets forth several arguments. First, he claims that the

contractual alimony provisions were “not part of the decree” and “expressly not part of any

judgment,” citing the language in the decree stating that the alimony obligation “is

contractual in nature and is not an obligation imposed by order or decree of court.” We

disagree. It is true that the alimony obligation is contractual in nature; the court did not

have the authority to impose alimony obligations without the parties’ consent. See Francis,

412 S.W.2d at 32-33. However, the alimony terms were set forth entirely within the order,

which was entitled “Final Decree of Divorce” and which was signed by the trial court as well

as the parties and their attorneys. The fact that the decree stated that the alimony

obligation is not “imposed by order or decree of court” does not alter the fact that the terms

were agreed to by the parties and approved by the trial court, as evidenced by its

                                              10
signature. Because the contractual alimony terms were incorporated into the judgment of

divorce, they are binding on the parties. Schwartz, 247 S.W.3d at 806 (citing O’Benar, 410

S.W.2d at 217; Vickers, 553 S.W.2d at 769-70; Pollard, 161 Tex. at 602, 343 S.W.2d at

239).

        Ventling asserts further that “the non-existence of a marriage prevents a party from

filing a motion to enforce [contractual alimony] because there is no division of a marital

estate to enforce.” However, Ventling does not direct us to any authority supporting this

point other than the trial court’s 2001 conclusion of law—which itself did not cite any

supporting case law or statute—stating that “[a] decree or court order which includes a

provision for the payment of alimony, even contractual alimony, suffers from a failure of

consideration if in fact the parties are not and never were married.” Even if we were to

adopt this proposition of law—for which we find no persuasive authority—our 2004 opinion

compels the conclusion that contractual defenses, such as failure of consideration, are now

unavailable to Ventling because the instant proceeding is a collateral attack on the 1995

decree. See Johnson, 132 S.W.3d at 178-79 (“We hold that Ventling’s challenge to the

enforceability of the decree in this proceeding amounted to an impermissible collateral

attack.”); Birdwell, 819 S.W.2d at 226-27 (“[I]n suits to enforce agreed judgments, parties

may not raise contractual defenses because such defenses constitute impermissible

collateral attacks on the prior judgments.”). We note also that the now-stipulated lack of

a “marital estate” has no bearing on the issue of contractual alimony, which, if awarded,

is not part of the “just and right” division of the marital estate in a divorce proceeding.

        Moreover, the fact that both parties now claim that they were never married is

immaterial. Ventling’s original petition for divorce asserted that the parties “have a

common law marriage” and the final decree dissolved that purported marriage under terms

consented to by both parties with advice of counsel. Both parties signed the final decree,

acknowledging that they “approved and consented to” the terms “as to both form and

substance.” Neither party appealed the decree, which was a final divorce judgment.

Johnson, 132 S.W.3d at 178, 179. Regardless of whether the parties now deny that they

                                             11
were ever married, the 1995 decree clearly implied that they were and that a common-law

marriage was the “relationship” between them that was being terminated.9

         Just as the trial court in 2001 lacked the plenary power to vacate the 1995 decree,

the trial court in 2009 was without the authority to refuse to enforce the decree’s alimony

provisions based on Ventling’s contractual defenses. However, as noted, a final judgment

may be attacked in a collateral proceeding if it is shown that the consent given to the

judgment was the result of extrinsic fraud,10 accident, or mutual mistake of fact. See

Schwartz, 247 S.W.3d at 804 (citing Boyd, 545 S.W.2d at 523). Ventling has continuously,

since his original motion to vacate in 1997, pleaded fraud and other affirmative defenses

in his attempt to avoid the alimony obligations, but at no point in the last thirteen years has

the trial court explicitly ruled on the veracity of those pleadings.

         We conclude that the trial court’s denial of Johnson’s motion to enforce the

contractual alimony provisions in the 1995 decree, without reaching a conclusion as to

Ventling’s allegations of extrinsic fraud, accident, or mutual mistake of fact, was erroneous

as a matter of law. See Villagomez, 210 S.W.3d at 728. Johnson’s issues are therefore

sustained in part. On remand, the trial court is instructed to determine, based on all the



         9
           Ventling notes that the section 71 Internal Revenue Code defines “alim ony” as “paym ent . . .
received by (or on behalf of) a spouse . . . .” 26 U.S.C. § 71(b)(1)(A) (em phasis added). Ventling argues that,
because he and Johnson were never m arried, and because the contractual alim ony provisions contained in
the 1995 decree specifically referenced this statute, the contract is unenforceable. The trial court appears
to have adopted this reasoning in its conclusions of law. However, Internal Revenue Code section 71
specifically provides that it its definitions are applicable only to that section. See id. § 71(b). Moreover, the
issue of whether the paym ents are properly characterized as “alim ony” for the purposes of federal tax law is
irrelevant to the issue we consider here; that is, whether the term s of the 1995 decree are enforceable.
         10
            Extrinsic fraud is defined as “fraud that denies a losing party the opportunity to fully litigate at trial
all the rights or defenses that could have been asserted.” Browning v. Prostok, 165 S.W .3d 336, 347 (Tex.
2005) (citing Montgomery v. Kennedy, 669 S.W .2d 309, 312 (Tex. 1984)). It generally includes wrongful
conduct occurring outside of the adversarial proceedings. Id. (citing Alexander v. Hagedorn, 148 Tex. 565,
575, 226 S.W .2d 996, 1002 (1950)). The fraud m ust be collateral to the m atter tried and not som ething which
was actually or potentially in issue. Id. (citing Montgomery, 669 S.W .2d at 312). By contrast, intrinsic fraud,
which m ay not form the basis of a collateral attack, “relates to the m erits of the issues [that] were presented
and presum ably were or should have been settled in the form er action.” Id. at 347-48 (citing Tice v.
Pasadena, 767 S.W .2d 700, 702 (Tex. 1989)). Here, Ventling alleged in his response to Johnson’s 1997
m otion for enforcem ent that the alim ony agreem ent “was the result of fraud, accident, m istake, and other
im proper m otives of Patricia M. Johnson.” T hese affirm ative defenses are based on conduct by Johnson
alleged to have occurred outside of the adversarial proceedings, and could not have been settled prior to entry
of the 1995 decree. See id. at 347 (citing Alexander, 148 Tex. at 575, 226 S.W .2d at 1002); id. at 347-48
(citing Tice, 767 S.W .2d at 702). Accordingly, these defenses, if proven, would sustain Ventling’s attack on
the 1995 decree.

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evidence, whether Johnson fraudulently induced Ventling to agree to the terms of the 1995

decree, or whether Ventling’s affirmative defenses of accident or mutual mistake of fact are

meritorious. If Ventling does not prove one of these affirmative defenses, the trial court

must render judgment against Ventling with respect to this collateral attack on the 1995

decree, with such judgment to include: (1) $142,500 in damages, representing the unpaid

contractual alimony; (2) appropriate prejudgment interest, see Johnson & Higgins of Tex.,

Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998) (permitting the award of

prejudgment interest based on general principles of equity); (3) reasonable attorney’s fees;

and (4) costs of court.

                                     III. CONCLUSION

       We reverse the judgment of the trial court and remand for further proceedings

consistent with this opinion.



                                                 DORI CONTRERAS GARZA
                                                 Justice

Delivered and filed the
15th day of July, 2010.




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