                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-11-00657-CV
                             _________________

                 IN THE INTEREST OF M.E.M. and M.M.M.

________________________________________________________________________

                   On Appeal from the 253rd District Court
                          Liberty County, Texas
                         Trial Cause No. CV57731
________________________________________________________________________

                          MEMORANDUM OPINION

      Margaret Ann Moody appeals the trial court’s order terminating Terry Don

Moody’s obligation to make monthly payments to Margaret toward his adult

children’s college education expenses.

                         I. FACTUAL BACKGROUND

      Margaret and Terry were divorced in 1996. They had two children together,

M.E.M., who was seven years old at the time of the divorce, and M.M.M., who

was three years old at the time of the divorce. As a result of an agreement between

the parties, the court entered an agreed divorce decree appointing Margaret the sole


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managing conservator of the children, and Terry as possessory conservator. The

decree provided that Terry was to pay child support for the two children of the

marriage. The decree contained a separate provision under the subtitle, “Additional

Child Support Obligation for Education Beyond High School,” whereby after the

children completed high school, if either child pursued a higher education, Terry

would provide additional support to Margaret to defray those expenses. According

to the decree, Margaret would apply these funds towards the costs of providing a

higher education for each child so enrolled. The parties also stipulated that the

decree is a contract, except with regard to the parent-child provisions.       Both

Margaret and Terry approved and consented to both the form and substance of the

decree. No appeal was taken from the original agreed divorce decree.

      In August 1999, Margaret and Terry agreed to a modification of the original

agreed divorce decree, resulting in Terry agreeing to pay an increased amount of

child support until the children’s 18th birthday or their graduation from high

school.   The agreed modification order stipulated “that all other terms and

provisions of the Agreed Final Decree of Divorce signed February 9, 1996,

including, but not limited to all obligations identified as additional child support

shall remain in full force and effect.” Both Margaret and Terry consented to the




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form and content of this modification order.       No appeal was taken from the

modification order.

      Terry filed a petition to modify the parent-child relationship, seeking, among

other things, to terminate “support payments[,]” “which applies to child support

after 18 and graduation.” Terry later amended his petition to modify to include a

request for declaratory judgment. Terry sought a finding that the provision in the

original decree ordering Terry to make payments to Margaret beyond the

children’s 18th birthdays and subsequent to their graduation from high school was

unenforceable.

      The trial court entered an order titled, “Order Terminating Child Support

Beyond Eighteen and Graduation from High School[,]” that forms the basis of this

appeal. The order terminates Terry’s obligation “to pay child support for [M.E.M.

and M.M.M.] beyond the age of 18 years and graduation from high school[.]”

Margaret filed a motion for new trial, which the trial court denied. Margaret

appealed.

      On appeal, Margaret argues that the trial court abused its discretion when it

granted Terry’s petition to modify and request for declaratory judgment because

the evidence is legally insufficient to support the trial court’s judgment. For the

reasons discussed below, we reverse the trial court’s order.

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                        II. DECLARATORY JUDGMENT

      In his request for declaratory judgment, Terry contends that the Texas

Family Code does not support the original divorce decree’s provision ordering him

to pay college expenses for his children after they reach age 18 or graduate from

high school. Terry argues, therefore, that the provision in the 1996 decree was

unenforceable. He challenges the validity of the section of the decree titled,

“Additional Child Support Obligation for Education Beyond High School,” which

provides, “that [Terry] has agreed, and IT IS THEREFORE ORDERED AND

DECREED, that [Terry] shall pay to [Margaret], the amount of $845.00 per month,

for so long as any child is enrolled in a college . . . not to exceed a period of five

years per child.” We conclude that Terry’s request for declaratory judgment is an

impermissible collateral attack of the original divorce decree.

      A collateral attack on a judgment is an attempt to avoid the binding effects

of provisions of a judgment, in a proceeding not instituted for the purpose of

correcting, modifying, or vacating the judgment. Jones v. Jones, 900 S.W.2d 786,

787-88 (Tex. App.—San Antonio 1995, writ denied) (quoting Hogan v. City of

Tyler, 602 S.W.2d 555, 558 (Tex. Civ. App.—Tyler 1980, writ ref’d n.r.e.). “A

direct attack--such as an appeal, a motion for new trial, or a bill of review--

attempts to correct, amend, modify or vacate a judgment and must be brought

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within a definite time period after the judgment’s rendition.” PNS Stores, Inc. v.

Rivera, 379 S.W.3d 267, 271 (Tex. 2012). Judgments are subject to collateral

attack if they are void, but not if they are merely voidable or erroneous. See Jones,

900 S.W.2d at 788. A judgment is void only when the court rendering the

judgment did not have jurisdiction over the parties, jurisdiction over the subject

matter, jurisdiction to enter the judgment, or the capacity to act as a court. PNS

Stores, 379 S.W.3d at 272 (quoting Travelers Ins. Co. v. Joachim, 315 S.W.3d 860,

863 (Tex. 2010)); Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987). If a final

judgment is based on erroneous holdings as to substantive law, it is not void, but

merely voidable, and cannot be collaterally attacked. See Cook, 733 S.W.2d at 140;

see also Berry v. Berry, 786 S.W.2d 672, 673 (Tex. 1990).

      Terry did not attack the 1996 decree by direct appeal, writ of error, or bill of

review. Terry has not shown that the court lacked jurisdiction or the capacity to act

when it entered the original agreed divorce decree. His request for declaratory

judgment is based solely on his argument that the decree’s provision stems from an

erroneous application of the substantive law; therefore, even if he were correct, and

the provision at issue in the 1996 agreed decree was unenforceable, the decree

would not be void, but only voidable. See Cook, 733 S.W.2d at 140; see also

Berry, 786 S.W.2d at 673. We conclude that Terry’s request for declaratory

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judgment was an improper attempt to collaterally attack the 1996 divorce decree.

See In re D.S., 76 S.W.3d 512, 517-19 (Tex. App.—Houston [14th Dist.] 2002, no

pet.); In re Marriage of Williams, 998 S.W.2d 724, 727-28 (Tex. App.—Amarillo

1999, no pet.); In re Marriage of Vogel, 885 S.W.2d 648, 650-51 (Tex. App.—

Amarillo 1994, writ denied).

                           III. PETITION TO MODIFY

      On appeal, Margaret also argues that the trial court abused its discretion in

modifying the original divorce decree to nullify the college tuition provision. Terry

filed a petition to modify the original agreed divorce decree, alleging that his

obligation to pay all support ended when his children reached the age of 18 and

graduated from high school. The trial court granted Terry’s request, modifying the

original decree, ending Terry’s obligation to pay under the divorce decree.

      We review an order modifying a divorce decree for an abuse of discretion.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); see also In re J.E.P., 49

S.W.3d 380, 386 (Tex. App.—Fort Worth 2000, no pet.). A trial court abuses its

discretion when it acts in an unreasonable or arbitrary manner. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court

also abuses its discretion if it misapplies the law to established facts. State v. Sw.

Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975). We will reverse the trial court’s

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modification order only when it appears from the record as a whole that the trial

court abused its discretion. See In re D.S., 76 S.W.3d 512, 520 (Tex. App.—

Houston [14th Dist.] 2002, no pet.); see also Gillespie v. Gillespie, 644 S.W.2d

449, 451 (Tex. 1982).

A. Effect of the 1999 Agreed Modification Order on the Parties’ Contractual

Agreement

      The trial court found no basis to enforce the payments beyond age 18 and

graduation from high school. Margaret argues the trial court abused its discretion

in terminating Terry’s obligation to pay for the children’s college tuition because

this obligation was based on a contractual agreement between the parties. In

support of her position, she relies on the provision in the decree which states, “The

parties have consented to the terms of this decree and stipulated that it is a contract,

except with regard to the parent-child provisions.” However, the trial court found

that Margaret’s filing of the August 1999 motion to modify amounted to “an

adversarial effort[,] which terminated any previously existing contractual

provisions governing an initial agreement concerning child support.” We disagree.

      When an order modifies a prior child support order, it only supersedes the

prior order “to the extent a modification is ordered.” In re Clark, No. 10-03-00037-

CV, 2004 WL 1632768, at *5 (Tex. App.—Waco July 21, 2004, orig. proceeding)

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(mem. op.); see also In re W.M.R., No. 02-11-00283-CV, 2012 WL 5356275, at *3

(Tex. App.—Fort Worth Nov. 1, 2012, no pet.) (mem. op.); Office of the Attorney

Gen. of Tex. v. Wilson, 24 S.W.3d 902, 906 (Tex. App.—Dallas 2000, no pet.).

Here, the modification order only modified the amount of Terry’s monthly child

support obligation and did not modify any other provision in the original decree of

divorce. There is no indication in the modification order that the parties intended to

modify any portion of the original divorce decree other than Terry’s statutory child

support obligation. There is support in the modification order that the parties

intended to preserve Terry’s obligation regarding his daughters’ college tuition.

The modification order specifically states, “that all other terms and provisions of

the Agreed Final Decree of Divorce signed February 9, 1996, including, but not

limited to all obligations identified as additional child support shall remain in full

force and effect.” The provision Terry challenges is subtitled, “Additional Child

Support Obligation for Education Beyond High School.” A plain reading of the

trial court’s modification order supports that it only modified certain provisions in

the decree. Nothing in the modification order modifies the provisions the parties

put in place to pay for their children’s education after they graduated from high

school or turned 18. We conclude the trial court erred in finding that the 1999

motion to modify terminated that provision.

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B. Trial Court’s Authority to Modify the Agreed Divorce Decree

          The issue we must next resolve is whether the trial court had authority to

modify the provision in the agreed divorce decree creating Terry’s obligation to

help pay the college tuitions of M.E.M. and M.M.M. Section 156.001 of the

Family Code limits a trial court’s authority to modify a final decree by providing

that “[a] court with continuing, exclusive jurisdiction may modify an order that

provides for the conservatorship, support, or possession of and access to a child.”

See Tex. Fam. Code Ann. § 156.001 (West 2008). The provision at issue here

states,

                 The Court finds that [Terry] has agreed, and IT IS
          THEREFORE ORDERED AND DECREED, that [Terry] shall pay to
          [Margaret], the amount of $845.00 per month, for so long as any child
          is enrolled in a college or university, technical, vocational, or business
          school not to exceed a period of five years per child. Such funds shall
          be applied by [Margaret] toward the costs of providing higher
          education for each child enrolled.

This provision clearly does not relate to conservatorship, possession, or access to a

child. In contrast with his statutory child support obligations, which require Terry

to provide financial support for the basic needs of his minor children, the college-

tuition provision, by its express language, is a provision solely to provide for the

college education of Terry’s adult children. We conclude the college tuition

provision of the agreed divorce decree is not something the trial court could have

                                              9
ordered without the agreement of the parties. See id. § 154.001. Accordingly, we

hold the trial court had no authority to modify this provision after the agreed

judgment became final. See id. § 156.001.

      The writing at issue here is an agreed decree. An agreed decree is a consent

judgment and thus has the same degree of finality and binding force as a judgment

rendered by the court at the conclusion of an adversary proceeding. See McCray v.

McCray, 584 S.W.2d 279, 281 (Tex. 1979) (citing Pollard v. Steffens, 343 S.W.2d

234, 239 (1961)). Without the consent of the parties, the trial court cannot modify

or set aside a provision of the agreement except for fraud, accident, or mutual

mistake of fact. Boufaissal v. Boufaissal, 251 S.W.3d 160, 161-162 (Tex. App.—

Dallas 2008, no pet.); Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex. App.—

Dallas 2008, no pet.). Terry has not alleged the decree resulted from any fraud,

accident, or mutual mistake of fact. Terry did not file a direct appeal from the

agreed divorce decree, nor has he shown the trial court lacked jurisdiction or

capacity to act, therefore; the agreed decree is final. See PNS Stores, 379 S.W.3d at

272. Accordingly, we conclude the trial court abused its discretion in modifying

the agreed divorce decree and we reverse and render judgment setting aside the

trial court’s order of September 1, 2011.




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      REVERSED AND RENDERED.


                                            ___________________________
                                                 CHARLES KREGER
                                                      Justice

Submitted on October 4, 2012
Opinion Delivered February 28, 2013

Before Gaultney, Kreger, and Horton, JJ.




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