In the final divorce decree, the trial court approved and incorporated the parties’ Agreement Incident to Divorce (“AID”). The parties agreed the father would pay $11,500 in monthly Contract Support Payments to the mother to provide her and the two children an “alternative lifestyle.” They would travel and live abroad so the children could learn other languages and cultures. The mother agreed to maintain this lifestyle and spend the Contract Support Payments to support it as a condition precedent to receiving the payments. The AID also included a provision that the father could send a notice if the mother failed to comply with a material term or condition. If she failed to cure the breach within 30 days, the Contract Support Payments would be abated until she complied.
Father Grows Concerned About Children’s Upbringing
The mother and children traveled within the U.S. and several countries abroad until July 2018. The father grew concerned about the children’s lack of structured education and their health and hygiene by the summer of 2018.
The mother informed the father she and the children would stay in British Columbia to take care of her parents. Although she expressed an intent to stay in Canada temporarily, the father was concerned she would try to establish permanent residency there.
The father sent her a notice that she was violating the court order and her obligations under the agreement. He claimed he had the right to current possession of the children. He also asserted that the children’s permanent residence was required to be in Dallas County and he had not consented for them to move to Canada. He asked the mother to return them, but she declined.
The father did not pay the Contract Support Payment the next month and filed a modification petition and requested a temporary restraining order and an order of attachment. The court issued a temporary restraining order and a writ of attachment, but the mother still refused to send the children back.
Trial Court Enters Temporary Orders
Following a hearing, the court issued temporary orders requiring the mother to return the children within 50 miles of the father’s home by September 20, 2018. The temporary orders established an alternating weekly possession schedule and restricted the children’s residence to Dallas County, with the mother having the exclusive right to designate their primary residence.
She brought them back to Texas on September 25 and moved to enforce the Contract Support Payment.
The father petitioned for declaratory judgment that the Contract Support Payments were not required after October 1, 2018. He also asked the court to find he was not required to pay the August payment because the mother violated the decree and AID by trying to establish residency in Canada.
Mother’s Enforcement Action Denied – Mother Appeals
The trial court denied the mother’s enforcement motion and granted the father’s petition for declaratory judgment, finding the father’s obligation to make the Contract Support payments was suspended or abated as of October 1, 2018 until the mother complied with the contractual requirements.
The mother moved for reconsideration, arguing she had cured the default identified in the father’s notice. She also asked for clarification of what she needed to do to end the abatement. The trial court denied her reconsideration.
The mother appealed.
The AID stated, ““Wife agrees as a condition precedent to receiving the Contract Support Payments to maintain such lifestyle as contemplated by Husband and Wife by expending the Contract Support Payments, as necessary, for such purpose.” The father argued payment obligation was conditioned upon the mother maintaining the alternative lifestyle described in the AID. He also argued she was required to spend the full amount of the monthly payments on maintaining that lifestyle.
The appeals court disagreed with the father’s interpretation of the condition precedent, finding the mother was not required to spend the full amount of the payments on the alternative lifestyle. The language required her to expend those payments as necessary to maintain the alternative lifestyle. The appeals court further noted that the language did not require the children to be in school full time as a condition precedent to the payments. The mother’s failure to have the children continuously enrolled in schools could lead to a notice of breach with a resulting withholding of the Contract Support Payments, but that did not transform the contractual requirement into a condition precedent to receiving the payments.
Appeals Court Finds that Mother Failed to Maintain Children’s Lifestyle
Nevertheless, the appeals court found the mother had not met the condition precedent. Although she was not required to spend the full amount of the payments on the alternative lifestyle, she was required to maintain the alternative lifestyle.
The mother argued that the father had required the children to live in Dallas, which prevented her from traveling and living abroad as required by the AID. The appeals court noted that it was the trial court, not the father, that required the children to be in Dallas with alternating possession. The trial court had effectively found the alternative lifestyle was not in the children’s best interest anymore.
The appeals court found the mother had not satisfied the condition precedent to receiving the Contract Support Payments since September 2018. The trial court therefore had not erred in denying her enforcement motion.
The appeals court affirmed the trial court’s judgment.
Contractual Terms in a Divorce Require In-Depth Understanding – Contact McClure Law Group Today
Anyone entering a divorce agreement should carefully consider any proposed condition precedent. It is important to understand what is required and what may occur to prevent the condition from being satisfied. If you are facing divorce, a skilled Texas divorce attorney can work with you to try to negotiate a fair agreement or proceed to further action if necessary. Schedule a consultation with McClure Law Group by calling 214.692.8200.