Pleading Correct Cause of Action Critical

When the parents modified their divorce decree, they agreed that each would pay 50% of certain expenses for their two children. These expenses included:

  • Private school expenses;
  • Tutoring expenses;
  • Summer camp fees;
  • Educational or recreational trips for the children;
  • Educational testing;
  • Buying the children automobiles at age 16, together with insurance; and
  • College expenses, to include tuition, books, room and board and reasonable fraternity expenses.

After the children graduated from high school, the mother sued the father, contending that he owed her $118,296,92 in unpaid reimbursements under the modification order. The mother filed a motion for enforcement, in which she sought not only a judgment but both civil and criminal contempt as remedies. However, the trial court awarded the mother only $11,777.92 in child support arrearages.

On appeal, the mother argued that the trial court had abused its discretion by failing to grant her judgment for the entire $118,296.92. But the court of appeals affirmed the trial court. In re W.R.B., No. 05-12-00776-CV (Tex. App. – Dallas Feb. 20, 2014) (mem. op.).

The court of appeals explained that with certain exceptions not relevant to the case, a court may order child support only until removal of the child’s disabilities for general purposes, the marriage or death of the child, or a finding by a court that the child is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program. Although parties may contract for post-majority support, as the parties did here, post-majority support is not child support.

The mother claimed that Texas Family Code section 154.124(c) prohibited her from attempting to enforce the agreement by a breach of contract action. Section 154.124(c) reads:

Terms of [a written] agreement pertaining to child support in the order may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract.

Accordingly, the mother pled her case as a motion for enforcement rather than a cause of action for breach of contract. But – since post-majority support is not child support – section 154.124(c) did not apply. Perhaps the mother might have prevailed had she filed suit for breach of contract.

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