                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00064-CV


JERRY DWAYNE LEE, JR.                                            APPELLANT

                                      V.

DANELLE CHARLENE LEE                                              APPELLEE


                                   ----------

           FROM THE 97TH DISTRICT COURT OF CLAY COUNTY
                  TRIAL COURT NO. 2012-0063C-CV

                                   ----------

                       MEMORANDUM OPINION 1

                                   ----------

     Appellant Jerry Dwayne Lee, Jr. appeals from the trial court’s summary

judgment for Appellee Danelle Charlene Lee. Because we hold that the agreed

spousal maintenance in the parties’ agreed decree is not court-ordered spousal




     1
      See Tex. R. App. P. 47.4.
maintenance under chapter 8 of the family code, we affirm the trial court’s

judgment.

      On May 10, 2012, Jerry and Danelle’s divorce hearing occurred. Jerry

represented himself, was present, and “agreed to the terms of th[e] [d]ivorce

[d]ecree.” Danelle, who also apparently represented herself, was not present but

had signed a waiver of service and had already signed the decree, “agreeing to

[its] terms.” No court reporter recorded the hearing because Jerry, Danelle, and

the trial judge all “agreed to not make a record.” The agreed decree contains the

following provision:

      11.    Spousal Maintenance

      The parties request that this court award maintenance to
      [Danelle] in the amount of $2000.00 per month for 60 months for
      the following reasons:

      Support and care.

      In addition, [Danelle] lacks the property and earning ability in the
      labor market to adequately provide for . . . her own reasonable
      needs.

      THEREFORE, THE COURT ORDERS that Petitioner pay to
      Respondent for spousal maintenance the sum of $2000.00 per
      month. Maintenance shall be paid monthly for 60 months. The first
      maintenance payment shall be due on Thursday, May 10, 2012.
      The obligation to pay future maintenance is terminated upon
      the death of either party or the remarriage of the party receiving
      maintenance.       All payments shall be made to any address
      designated in writing by the recipient. [Emphasis added.]




                                       2
      On the last page of the eight-page decree, after the trial judge’s signature,

the parties affixed their signatures to indicate their agreement “to the terms of this

Decree.”

      Less than fifteen months later, Jerry filed a “Motion to Terminate

Maintenance Obligation” under section 8.056 of the family code because Danelle

was cohabitating “with another person with whom [she] ha[d] a dating or romantic

relationship in a permanent place of abode on a continuing basis.” Danelle, who

did not contest that she was cohabitating with a romantic partner in a permanent

place of abode on a continuing basis, 2 filed a motion for summary judgment,

contending that she

      [wa]s entitled to summary judgment as a matter of law because the
      divorce decree is a contractual agreement to spousal maintenance
      and not Court Ordered Spousal Maintenance under Chapter 8 of the
      Family Code. In the Divorce Decree, that is agreed to by the parties,
      the parties request the court to award maintenance in the amount
      set forth in the decree. The Decree is a confirmation of the parties’
      agreement and is contractual, as a debt, in nature. In Kee v. Kee,
      S.W.3d 812, 814[] (Dallas 2010), the Court stated that “Chapter 8
      does not apply to an alimony provision in a divorce decree that
      restates a parties’ contractual agreement for alimony.” The decree
      only provides two ways in which the obligation to pay support
      terminate[s]:

      a. The death of either party; or

      b. The remarriage of the party receiving maintenance.




      2
       See Tex. R. App. P. 38.1(g).



                                          3
The trial court granted Danelle’s motion for summary judgment, from which Jerry

appeals.

      In three issues, Jerry contends that the agreed spousal maintenance is

nevertheless spousal maintenance governed by chapter 8 of the family code, that

the agreed spousal maintenance is not contractual alimony, and that his

pleadings raise a genuine issue of material fact by alleging Danelle’s cohabitation

with another man.

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. 3 We review a summary judgment de novo. 4 We consider the evidence

presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could, and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not. 5       We indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor. 6 A




      3
       Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
      4
       Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
      5
       Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848.
      6
       20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).



                                        4
defendant who conclusively negates at least one essential element of a cause of

action is entitled to summary judgment on that claim. 7

      Although the agreed maintenance award has some common elements with

court-ordered spousal maintenance under chapter 8 of the family code, in that (1)

the award’s duration and amount do not exceed the stated, statutory maximums

for court-ordered maintenance, 8 (2) the decree provides that the maintenance

awarded is for Danelle’s “[s]upport and care,” and (3) the decree also provides

that she “lacks the property and earning ability in the labor market to adequately

provide for . . . her own reasonable needs,” 9 there is no indication in the record

that the trial court considered all of the statutory factors in determining

maintenance. 10 The record likewise does not reveal any evidence that Danelle

(who was absent from the hearing) overcame the presumption against

maintenance, 11 or, by awarding maintenance for sixty months as the parties

requested, that the trial court followed the statutory requirement to “limit the

      7
       Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see
Tex. R. Civ. P. 166a(b), (c).
      8
       See Tex. Fam. Code Ann. §§ 8.054(a)(1), .055(a)(1) (West Supp. 2014).
      9
       See id. §§ .051(2)(B), .052(1), (4), (8); see also § 8.001(1) (West 2006).
      10
         See id. § 8.052 (“A court that determines that a spouse is eligible to
receive maintenance under this chapter shall determine the nature, amount,
duration, and manner of periodic payments by considering all relevant
factors . . . .”).
      11
          See id. §8.053.



                                         5
duration of a maintenance order to the shortest reasonable period that allows the

spouse seeking maintenance to earn sufficient income to provide for the

spouse’s minimum reasonable needs[.]” 12

      Further, despite Jerry’s attempt to distinguish contractual alimony provided

in an agreement incident to divorce or partition and exchange agreement from

the spousal maintenance agreement he entered into with Danelle as part of the

agreed decree of divorce, that the agreed spousal support is part of the decree

and not incident to it is not relevant to our treatment of the decree as a binding

contract. “An agreed divorce decree, such as the one in this case, is a contract

subject to the usual rules of contract construction.” 13 As we have previously

explained,

      Our primary concern when interpreting an agreement is to ascertain
      and give effect to the intent of the parties as it is expressed in the
      agreement. We examine the writing as a whole in an effort to
      harmonize and give effect to all the provisions so that none will be
      rendered meaningless. If the agreement 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. 14

      The agreed decree provides two ways to terminate the agreed spousal

maintenance obligation:     death and remarriage.       It does not provide that

      12
       Id. § 8.054.
      13
       In re W.L.W., 370 S.W.3d 799, 804 (Tex. App.—Fort Worth 2012, orig.
proceeding).
      14
      Chafin v. Isbell, No. 02-10-00007-CV, 2011 WL 946653, at *4 (Tex.
App.—Fort Worth Mar. 17, 2011, no pet.) (mem. op. on reh’g) (citations omitted).



                                        6
Danelle’s cohabitation with another could terminate Jerry’s obligation.      The

decree is not ambiguous; we therefore hold that the trial court correctly granted

Danelle’s motion for summary judgment as a matter of law. Accordingly, we

overrule Jerry’s three issues and affirm the trial court’s judgment.




                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DELIVERED: February 12, 2015




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