Jeffery B. Kaiser v. Anita K. M. Silfvast

Opinion issued December 23, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-08-00496-CV ——————————— Jeffery B. Kaiser, Appellant V. Anita K. M. Silfvast, Appellee On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 1998-49588 MEMORANDUM OPINION Appellant, Jeffery Kaiser, appeals the trial court’s judgment that awards appellee, Anita Silfvast, his former wife, $80,000 in unpaid alimony and $7,500 in attorney’s fees. In two issues, Kaiser contends that the trial court rendered a judgment that (1) violated the intent of the parties, and (2) constituted an unenforceable penalty. We affirm. BACKGROUND In August 1988, Kaiser married Silfvast, a citizen of Finland. During their marriage, the couple had two children and resided in Houston, Texas. Kaiser and Silfvast separated in September 1998, and Kaiser petitioned for divorce one month later. The primary issue in the divorce was the domicile restriction requested by Kaiser, who sought to prevent Silfvast from removing the children from the United States to Finland. In May 1999, the parties entered into a Mediation Agreement. Under the Mediation Agreement, the children’s domicile was restricted to Harris, Fort Bend, or Montgomery Counties in Texas “until further order of the court.” The mediation agreement noted that Kaiser’s support obligations for Silfvast were contingent upon her residence in one of the three counties, and if she decided to move outside of those areas, then Kaiser’s support obligations “evaporate[d]” immediately, along with any restrictions on Silfvast’s and the children’s residence. On June 21, 1999, two events occurred. First, the couple signed a “Contract for Support of Wife” (“Contract for Support”). The Contract obligated Kaiser to pay alimony on the fifteenth day of each month until May 15, 2004. Section 1.05(c)(3) of the Contract provided that Kaiser’s alimony obligation would terminate: Upon [Silfvast’s] moving herself and the children to a residence outside of Harris County, Fort Bend or the Woodlands in Montgomery County, Texas. The Contract also provided in section 1.09, entitled “Default and Acceleration”: If default is made by [Kaiser] 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 sixty (60) days, the entire remaining alimony obligation of [Kaiser], at the option of Receiving Party, [Silfvast], shall then be accelerated and shall become immediately due and payable . . . unless [Silfvast] has moved outside Harris County, Fort Bend or the Woodlands in Montgomery County, Texas in which case the alimony will terminate. On June 21, the trial court also entered the Final Decree of Divorce (“the Decree”). The Mediation Agreement was merged into the Decree. The Decree provided that the Decree controlled over any conflicting provisions in the Mediation Agreement. The Decree also incorporated the parties’ Contract for Support. Neither the Decree nor the Contract for support specified which document controlled in cases of conflicting provisions. The Decree provided: In the event [Kaiser] defaults on payment of child support, payment of alimony, payment of private school tuition for the minor children or reimbursement to [Silfvast] . . . , the residence restriction relating to primary residence of the children . . . shall immediately terminate and [Silfvast] shall be immediately released from any obligation to continue to maintain primary residence of the children within Harris County, Texas, Fort Bend County, Texas, or the Woodlands in Montgomery County, Texas. It is further ordered that, should [Kaiser] default on any of the support or reimbursement obligations set out above, [Silfvast] shall have the right to move to Finland with the children . . . . Default for purpose of the clause is defined as [Kaiser] being more than twenty (20) days late on the payment of any of the above referenced obligations . . . or [Kaiser] failing to make a support payment or reimbursement payment as set out above within fifteen (15) days of a due date more than five (5) times in a calendar year. In 2001, Kaiser failed to make payments on his alimony obligation for the August 15, September 15, and October 15 due dates. On November 3, 2001, Silfvast sent a certified letter notifying Kaiser of his default. She also notified Kaiser that because his default on the alimony payments was beyond 60 days, she was providing notice of acceleration and accelerating the remaining alimony obligation. On November 20, 2001, Kaiser made a payment to Silfvast of $5,000 that Silfvast accepted. On December 24, 2001, Silfvast traveled with the children to Finland. On January 2, 2002, Silfvast notified Kaiser of her intent to stay with the children in Finland. Silfvast later returned to the United States and resided in Harris County. Silfvast sued Kaiser for breach of the Contract for Support on December 18, 2003. Kaiser counterclaimed for breach of contract, fraudulent inducement, and intentional infliction of emotional distress. The trial court held a bench trial on January 29, 2008. Both parties submitted trial briefs over the next several months outlining their legal arguments and responding to the opposing party’s arguments. On May 13, 2008, the trial court rendered judgment in favor of Silfvast and granted Silfvast a recovery of $80,000 in unpaid contractual alimony and $7,500 in attorney’s fees. Kaiser formally requested the trial court file its Findings of Fact and Conclusions of Law. The trial court did not file any findings or conclusions. This appeal followed. ACCELERATION OF ALIMONY OBLIGATION In his first issue, Kaiser contends the trial court erred by allowing Silfvast to recover $80,000 in unpaid contractual alimony. He contends the trial court based its order on a misinterpretation of the intent of the parties as expressed in their divorce decree and its incorporated agreements. A. Standard of Review In a bench trial, where no findings of fact and conclusions of law are filed, the trial court’s judgment implies all necessary findings of fact to support it.[1] Ryan v. Abdel-Salam, 39 S.W.3d 332, 335 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Lopez v. Hansen, 947 S.W.2d 587, 589 (Tex. App.—Houston [1st Dist.] 1997, no writ). When the implied facts are supported by evidence, it is our duty to uphold judgment on any theory of law applicable to the case. Lopez, 947 S.W.2d at 589. B. Applicable Law Here, the parties entered into a contract for spousal support. 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, writ denied). 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 v. Tussing, 54 S.W.3d 442, 447 (Tex. App.–Corpus Christi 2001, no pet.). When an agreement for the payment of alimony is executed by the parties and incorporated into the judgment of divorce, as it was in this case, 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.). An agreed divorce decree is also subject to the usual rules of contract interpretation. Chapman v. Abbot, 251 S.W.3d 612, 616 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Our primary concern in interpreting a contract is to ascertain and give effect to the true intentions of the parties as expressed in the written agreement. Id. To achieve this objective, courts should examine the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Id. We accord contract language its plain, grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated. Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex. 1985); Chapman, 251 S.W.3d at 617. Because the Contract for Support was integrated into the divorce decree, we may read the two instruments together to ascertain the parties’ intent and we construe both documents as a single, unified instrument. See Fort Worth Indep. School Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000); Gray & Co. Realtors, Inc. v. Atlantic Housing Found., Inc., 228 S.W.3d 431, 436 (Tex. App.—Dallas 2007, no pet.) (“instruments pertaining to the same transaction may be read together to ascertain the parties’ intent,” and “in appropriate instances, courts may construe all the documents as if they were part of a single, unified instrument”). C. Analysis Kaiser contends that the trial court misinterpreted the intent of the parties as expressed in the written Contract for Support and Decree. Kaiser asserts the actual intent of the parties was that Kaiser’s alimony obligation, and Silfvast’s right to collect on that obligation, would terminate if she moved their children to Finland, notwithstanding his default or her acceleration. The Decree and Contract for Support both define default similarly. Default under either document is defined as Kaiser “being more than twenty (20) days late on the payment of any [alimony] or [Kaiser] failing to make a[n alimony] payment . . . within fifteen (15) days of a due date more than five (5) times in a calendar year.” Kaiser was more than 20 days late on the January, February, April, August, September, and October alimony due dates. The record shows that Kaiser, therefore, defaulted on his contractual alimony obligation. Under the Decree, if Kaiser “defaults on payment of . . . alimony . . . the residence restriction relating to the primary residence of the children . . . shall immediately terminate and [Silfvast] shall be immediately released from any obligation to continue to maintain primary residence of the children within Harris County, Texas, Fort Bend County, Texas or the Woodlands in Montgomery County, Texas.” Additionally, “should [Kaiser] default on [the alimony obligation, Silfvast] shall have the right to move to Finland with the children . . . .” Because Kaiser was in default, Silfvast was immediately released from any residency obligation. The Contract for Support defined when Silfvast could accelerate the alimony payments, once Kaiser was in default. The Contract for Support states: The Paying Party, [Kaiser], agrees that time is of the essence in the payment of the periodic alimony payments. If default is made by Paying Party 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 sixty days (60) days, the entire remaining alimony obligation of Paying Party, at the option of Receiving Party, [Silfvast], shall then be accelerated and shall become immediately due and payable . . . . The record shows that October 28, 2001, was the first date that Kaiser was in default for more than 60 days. Once Kaiser was in default for over 60 days, Silfvast had the right to accelerate under the Contract for Support, which, as the parties agree, she did on November 3, 2001. Once Silfvast accelerated, she cut off Kaiser’s right to cure his default and the entire remaining alimony obligation became due and payable. EMC Mortg. Corp. v. Window Box Ass’n, Inc., 264 S.W.3d 331, 337 (Tex. App.—Waco 2008, no pet.) (holding notice of acceleration, in absence of contrary agreement or waiver, cuts off debtor’s right to cure default and gives notice that entire debt is due and payable) (citing Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232, 234 (Tex. 1982)). Kaiser contends that even if the debt was already accelerated, the accelerated obligation disappeared once Kaiser moved to Finland. The crux of Kaiser’s argument before the trial court and on appeal is based upon the final sentence of the “Default and Acceleration” paragraph in the Contract for Support. That provision states, “If [Kaiser] defaults . . . the entire remaining alimony obligation of Paying Party, at the option of Receiving Party, [Silfvast], shall then be accelerated and shall become immediately due and payable . . . unless [Silfvast] has moved outside Harris County, Fort Bend County or the Woodlands in Montgomery County, Texas, in which case the alimony will terminate.” Kaiser asserts that this sentence indicates the intent of the parties was that Kaiser’s alimony obligation immediately terminated if Silfvast moved outside the three- county area, notwithstanding Kaiser’s default or Silfvast’s acceleration. We disagree. The language of the Default and Acceleration provision means that Silfvast would not be able to accelerate if she had previously defaulted herself by moving outside the three-county area prior to his default, or if she had moved outside the three-county area prior to her acceleration. On the date she accelerated, Silfvast still resided in Harris County. Because Silfvast still resided in the three-county area at the time she accelerated, she had the right to accelerate. Once she accelerated, the debt became due and payable, and the residency provision in the Default and Acceleration paragraph was no longer applicable. Kaiser also contends Silfvast could not “unilaterally revive” his alimony obligation once she returned from Finland and again established residency in the three-county area. Because Kaiser’s accelerated alimony obligation was due and payable once Silfvast accelerated, Kaiser’s accelerated obligation did not “terminate” when Silfvast moved to Finland, and, therefore, Silfvast did not need to revive the accelerated obligation when she returned to the U.S. Taking into consideration that (1) Kaiser defaulted, (2) Kaiser remained in default for more than 60 days, (3) Silfvast accelerated Kaiser’s unpaid alimony obligation, and (4) Silfvast was still a resident of Harris County when she accelerated, we hold that the trial court did not err by awarding Silfvast the $80,000 in unpaid contractual alimony in accordance with the parties’ contractual terms. See Lopez, 947 S.W.2d at 589. We overrule Kaiser’s first issue. PENALTY In his second issue, Kaiser asserts that the acceleration clause, which was incorporated into the final divorce decree, acted as an unenforceable penalty. Unlike an ordinary contract, a divorce decree is a final judgment and must be appealed within the trial court’s plenary power, at most 105 days after the judgment is signed. See Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009); In re Provine, 312 S.W.3d 824, 829–30 (Tex. App.—Houston [1st Dist.] 2009, no pet.). If an appeal is not timely perfected from the divorce decree, res judicata bars a subsequent collateral attack. Hagen, 282 S.W.3d at 902; Treadway v. Shanks, 110 S.W.3d 1, 5 (Tex. App.—Houston [1st Dist.] 2000), aff’d, 110 S.W.3d 444 (Tex. 2003). Even if a final judgment is erroneous or voidable, it is not void and subject to collateral attack if a trial court had jurisdiction over the parties and subject matter. Hagan, 282 S.W.3d at 902; See also Jones v. Jones, 900 S.W.3d 786, 788 (Tex. App.—San Antonio 1995, writ. denied). Here, the final divorce decree incorporating the “Contract for Support of Wife” was entered by the trial court on June 21, 1999. Our record contains no suggestion that either party objected to or appealed from the final divorce decree. Kaiser may not now collaterally attack a provision of an unappealed divorce decree by characterizing it as an unenforceable penalty. See Jones, 900 S.W.3d at 788. We overrule Kaiser’s second issue. CONCLUSION We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Alcala and Massengale. [1] The Rules of Civil Procedure provide that within 20 days after the judgment is signed, any party may request the trial court to state in writing its findings of fact and conclusions of law. Tex. R. Civ. P. 296. The record shows that Kaiser timely requested findings of facts and conclusions of law, but that the trial court did not respond. If the trial court fails to file timely findings of fact and conclusions of law, the requesting party must file a notice of past due findings of fact and conclusions of law within 30 days after filing the original request to prevent waiver of error regarding a court’s failure to file its findings of fact and conclusions of law. Tex. R. Civ. P. 297; Lopez v. Hansen, 947 S.W.2d 587, 589 (Tex. App.−Houston [1st Dist.] 1997, no writ). The record does not show that Kaiser filed a notice of past due findings of fact and conclusions of law.