Dawn M. Jourdan v. Michael K. Jourdan ( 2011 )

MEMORANDUM OPINION
No. 04-10-00402-CV
Dawn M. JOURDAN,
Appellant
v.
Michael K. JOURDAN,
Appellee
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-15410
Honorable Gloria Saldana, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: May 11, 2011
AFFIRMED
This is a post-divorce proceeding to enforce an agreement incident to divorce between
appellant Dawn Jourdan (“Dawn”) and appellee Michael Jourdan (“Michael”). The agreement
was incorporated into an agreed divorce decree and provided for the payment of contractual
alimony. See TEX. FAM. CODE ANN. § 7.006(a) (West 2006) (allowing divorcing parties to enter
into written agreements concerning support and maintenance). After a nonjury trial, the trial
court denied Dawn’s motion to enforce the agreement and granted Michael an offset for
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overpayments, as well as attorney’s fees. On appeal, Dawn contends the trial court erred in
denying her motion for enforcement of spousal maintenance and granting Michael’s claims for
offset and credit. She also argues it was error for the court to award Michael attorney’s fees. We
affirm.
BACKGROUND
Dawn and Michael married in 1985 and divorced in June 2001. They signed an
agreement incident to divorce, which was incorporated into a decree of divorce approved by the
trial court and signed on June 20, 2001. As part of the agreement, Michael agreed to pay Dawn
contractual alimony in the form of: (1) $3,500 per month, decreasing over time for twelve years
for a total of $318,000; and (2) payments to Chase Bank for the mortgage payment on the
residence awarded to Dawn until the note balance of $256,173.00 was paid in full.
The divorce decree provides that Dawn “shall pay . . . [a]ny and all debts, charges,
liabilities and other obligations . . . related to property awarded to [her].” It also states that in the
event the mortgage payment increased or decreased because of ordinary market fluctuations,
Michael would pay the amount indicated on the annual escrow statements. With the exception of
the escrow statement for the first year after the divorce, and in violation of the agreement and
decree, Dawn did not furnish Michael with copies of the annual escrow statements.
Michael subsequently learned he was not receiving credit for the full amount he thought
was being applied to the mortgage-payment component of the contractual alimony. In the spring
of 2008, Michael learned Dawn was not paying the property taxes or the homeowner’s insurance.
As a result, he stopped making the monthly cash contractual alimony payments. Michael’s
cessation of payments prompted Dawn to file a motion to enforce the decree and the agreement
incident to divorce. Michael filed an answer and counterclaim in which he denied Dawn’s
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claims, and sought an offset or credit for refunds of escrow balances that were wrongfully paid to
Dawn. He also requested attorney’s fees.
On February 22, 2010, the trial court denied Dawn’s motion to enforce and granted
Michael an offset in the amount of $117,693.89. Michael applied this credit to the $75,000
remaining balance on the cash-payment component of the contractual alimony obligation, which
resulted in Dawn owing Michael $42,693.89, in addition to the $19,226.18 attorney’s fees that
the trial court awarded to Michael. The trial court then allowed $61,920.09 ($42,693.89 plus
$19,226.18) as an offset against Michael’s mortgage-balance obligation of $131,878.24 (as of
January 10, 2010). This left a balance of $69,958.17, which Michael is still obligated to pay.
Dawn filed a motion for new trial on March 23, 2010. She also requested findings of fact
and conclusions of law, but these were not timely filed. See TEX. R. CIV. P. 296 (noting that
parties may request court to state in writing its findings of fact and conclusions of law and such
request shall be filed twenty days after judgment is signed). The notice of past-due findings was
not timely filed. See TEX. R. CIV. P. 297 (noting that party must file notice within thirty days
after filing original request for findings of fact if court fails to file timely findings of fact and
conclusions of law). Dawn appeals the trial court’s ruling.
DISCUSSION
A marital property agreement incorporated into a final divorce decree is treated as a
contract and its legal force and meaning are governed by the law of contracts, not by the law of
judgments. Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986). Moreover, an agreed judgment is
also covered by the law of contracts. Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex. App.—San
Antonio 2002, no pet.).
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Under the law of contracts, in construing an agreement incident to divorce, a court must
look to the intentions of the parties as manifested in the written agreement. J.M. Davidson, Inc.
v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); Bishop, 74 S.W.3d at 879–80. Whether a contract
is ambiguous is a question of law that we review de novo. MCI Telecomm. Corp. v. Tex. Util.
Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999). A contract is not ambiguous if it can be given a
definite or certain meaning as a matter of law. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.
1983); Bishop, 74 S.W.3d at 880. This query for ambiguity must be decided by examining the
contract as a whole in light of the circumstances present when the contract was entered. Bishop,
74 S.W.3d at 880 (citing Columbia Gas Trans. Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587,
589 (Tex. 1996); Coker, 650 S.W.2d at 394). We consider the entire writing and attempt to
harmonize and give effect to all the provisions of the contract by analyzing the provisions with
reference to the whole agreement. Webster, 128 S.W.3d at 229.
The decree in this case is enforceable both as a contract and as an agreed judgment. See
Allen, 717 S.W.2d at 313; Bishop, 74 S.W.3d at 879. Neither party has pled ambiguity, and in
fact, both parties stipulated the agreement was unambiguous. However, Dawn argues that
according to the terms of the agreement and the decree, Michael agreed to make the mortgage
payments described in the note, and this included an obligation to pay property taxes and
homeowner’s insurance. Michael contends he was only required to pay the mortgage.
The agreement provides that Michael shall make the mortgage payments in accordance
with the terms of the existing real estate lien note:
“Michael K. Jourdan will pay for the benefit of Dawn M. Jourdan the [mortgage]
. . . in accordance with the terms of the existing real estate lien note.”
The only mortgage payments required under the note are monthly principal and interest
in the amount of $2,123.38:
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“[Borrower] will pay principal and interest by making payments every month. . . .
[] monthly payment will be in the amount of U.S $ 2,123.38.”
The agreement clearly provides only for mortgage payments “in accordance with the
terms of the existing real estate lien note.” This note does not require the payment of taxes or
insurance—only principal and interest. Therefore, even though Dawn urges a different
interpretation, differing interpretations of a contract do not amount to an ambiguity. See Kelley
Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998) (holding that mere
conflicting expectations or disputes are not enough to create ambiguity); see Consol. Petroleum,
Partners, I, LLC v. Tindle, 168 S.W.3d 894, 898–99 (Tex. App. 2005) (citing Birnbaum v. Swepi
LP, 48 S.W.3d 254, 257 (Tex. App.—San Antonio 2001, pet. denied) (noting courts cannot
change a contract simply because one of the parties comes to dislike its provisions or provides a
different meaning to them)). We hold the agreement clearly required Michael to pay mortgage
payments according to the terms of the note, and these terms only included monthly principal
and interest.
Moreover, in construing contracts, courts must consider all the provisions with reference
to the entire document. Coker, 650 S.W.2d at 394. The agreement incident to the divorce
provides that the entire agreement of the parties consists of the agreement and the divorce decree.
The agreement states that Michael is to pay the “mortgage obligation,” but the divorce decree
provides that Dawn is responsible for paying “[a]ny and all debts, charges, liabilities and other
obligations . . . related to property awarded to [Dawn] . . . .” Therefore, we hold Michael was
required to pay principal and interest on the mortgage, while Dawn was responsible for all other
charges, including taxes and insurance.
Dawn also complains the trial court erred in allowing Michael an offset and credit against
an obligation owed to a nonparty, the mortgage company. However, we hold the credit is against
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Michael’s obligation to Dawn pursuant to the terms of the agreement; it is not an offset against
their mutual obligation to the mortgage holder under the terms of the note. The credit merely
acknowledges that Michael has paid a certain amount, which the trial court credited against his
obligations to Dawn.
Finally, Dawn argues the trial court erred in awarding attorney’s fees to Michael, because
she should have been the prevailing party in the enforcement suit. Dawn does not challenge the
reasonableness of the attorney’s fees awarded to Michael. See Aquila Sw. Pipeline, Inc. v.
Harmony Exploration, Inc., 48 S.W.3d 225, 240–41 (Tex. App.—San Antonio 2001, pet. denied)
(noting that when party challenges reasonableness of attorney’s fees, court may look at
sufficiency of evidence to support fees). Instead, Dawn argues that according to the agreement,
the prevailing party is entitled to recover such fees, and claims that because she should have been
the prevailing party, it was error to award fees to Michael. Because we have held the trial court
correctly entered judgment in favor of Michael, we hold the trial court did not err in awarding
attorney’s fees to Michael and overrule Dawn’s last point of error.
CONCLUSION
In sum, we overrule Dawn’s points of error and affirm the trial court’s judgment.
Marialyn Barnard, Justice
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