NUMBER 13-09-00563-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

PATRICIA M. JOHNSON, Appellant,

v.

WAYNE VENTLING, Appellee.

 

On appeal from the 94th District Court of Nueces County, Texas.

 

MEMORANDUM OPINION ON REHEARING

Before Chief Justice Valdez and Justices Yañez and Garza

Memorandum Opinion on Rehearing by Justice Garza

We grant the motion for rehearing filed by appellant, Patricia M. Johnson, vacate

and withdraw our previous memorandum opinion and judgment dated July 15, 2010, and

issue the following in its place.

In this appeal, Johnson challenges the trial court’s denial of her motion to enforce

contractual alimony provisions agreed to by appellee, Wayne Ventling. By two issues,

Johnson contends: (1) that the trial court erred in determining that the contractual alimony

provisions were unenforceable; and (2) that she is entitled to a judgment of $142,500,

representing the amount of alimony alleged to be due from Ventling, as well as interest and
 The parties’ signatures on the final decree appeared at the conclusion of the document underneath 1

the following statement: “APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE.”

2

attorney’s fees. We reverse and remand.

I. BACKGROUND

This case involves a thirteen-year romantic relationship which devolved into a

fifteen-year series of legal liaisons. Johnson and Ventling cohabited from 1982 to 1995.

Following the advice of his attorney that a common-law marriage existed and that a formal

decree regarding property division was in his best interest, Ventling filed for divorce. The

parties consented to the terms of the divorce and a “Final Decree of Divorce” was entered

on April 13, 1995. The decree stated that “the relationship between [Ventling] and

[Johnson] is dissolved” and provided for the disposition of the parties’ community property,

including a lump sum payment to be made from Ventling to Johnson in the amount of

$25,537. The decree, which was signed by the trial court as well as both parties and their

attorneys, further stated as follows: 1

Alimony

It is the mutual desire of the parties to provide a continuing measure

of support for [Johnson] after the dissolution of the relationship between the

parties. These support payments undertaken by [Ventling] are intended to

qualify as contractual alimony as that term is defined in section 71(a) of the

Internal Revenue Code of 1986 (“the Code”), as amended, and are intended

to be includable in the gross income of [Johnson] under section 71(a) of the

Code and deductible by [Ventling] under section 215(a) of the Code. All

provisions of this article will be interpreted in a manner consistent with that

intention.

Contractual Obligations

This alimony obligation undertaken by [Ventling] is contractual in

nature and is not an obligation imposed by order or decree of court.

Terms, Conditions, and Contingencies

Amount. [Ventling] will pay to [Johnson] $2,500.00 per month as and

for alimony.

. . . .

Term. The payments will be for eighty-four (84) months with the last
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payment being March 1, 2002.

. . . .

Default and Acceleration. [Ventling] agrees that time is of the essence

in the payment of the periodic alimony payments. If default is made by

[Ventling] 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

60 days, the entire remaining alimony obligation of [Ventling], at the option

of [Johnson], shall then be accelerated and shall become immediately due

and payable, together with an amount sufficient to reimburse [Johnson] for

any tax and/or penalty resulting from such default by [Ventling].

. . . .

Clarifying Orders

Without affecting the finality of this Decree of Divorce, this Court

expressly reserves the right to make orders necessary to clarify and enforce

this decree.

In October of 1995, Johnson filed a motion for enforcement, contending that

Ventling failed to deliver certain community property to her as provided in the decree. In

response, Ventling filed a cross-motion for enforcement. The parties settled this dispute.

Johnson then filed a second motion for enforcement in September of 1997, alleging that

Ventling had (1) failed to make the $25,537 lump sum payment as required by the decree,

and (2) failed to make the last three alimony payments. Johnson sought acceleration of

the entire alimony amount as provided in the decree. In response to this second

enforcement motion, Ventling raised a novel defense, arguing that the parties had in fact

never been married. Contending that Johnson had deceived him into believing that they

were in a common-law marriage, Ventling asked the trial court to: (1) vacate the 1995

decree; (2) rescind the parties’ agreement “on the grounds of mistake, accident, fraud,

laches, limitations, and failure of consideration”; and (3) “non-suit” his divorce action.

Although more than two years had passed since the trial court’s entry of the final decree,

Ventling asserted that the trial court retained plenary power to vacate the decree because,

assuming the parties were never actually married, the decree merely stated the parties’

rights as to their jointly-owned property and was not a final judgment completely disposing
 Johnson testified that she was receiving military widow’s benefits from a prior marriage, and that 2

those benefits would terminate if she remarried. She stipulated to the lack of a marriage in order to avoid

federal prosecution for collecting those benefits throughout her thirteen-year cohabitation with Ventling.

Johnson v. Ventling, 132 S.W .3d 173, 175 (Tex. App.–Corpus Christi 2004, no pet.).

 After the July 25, 2001 judgment, the trial court entered the following findings of fact: 3

Nowhere in the order of April 13, 1995, or any other order, judgment, or decree before or

since, did the Trial Court find the parties to be married. In fact, subsequently, by judicial

stipulation and finding by the Trial Court, it was resolved that [the parties] were not and had

never been married. In the absence of a marriage, there was no community property estate,

or existence of a spousal relationship . . .

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of his divorce action. See Tex. Prop. & Cas. Ins. Guar. Ass’n v. De Los Santos, 47 S.W.3d

584, 587 (Tex. App.–Corpus Christi 2001, no pet.) (“A judgment which settles all the legal

issues and rights between the parties is final and appealable.”) (citing Hinde v. Hinde, 701

S.W.2d 637, 639 (Tex. 1985) (per curiam)).

Johnson later moved for summary judgment on her enforcement motion. In arguing

the motion before the trial court, Johnson’s attorney announced that the parties had

stipulated that they were, in fact, never married. Ventling stipulated that he, in fact, had 2

not made the payments as required by the 1995 decree. The trial court then denied

Johnson’s motion for summary judgment, granted Ventling’s request to “non-suit” the

divorce action, and authorized Johnson to amend her pleadings. Johnson did so, alleging

that the parties were involved in a “domestic partnership” for thirteen years and asking the

trial court to enforce the community property disposition as provided in the 1995 decree.

Following various continuances and delays, the parties returned to the trial court for

a hearing on March 16, 2001. At that time, Ventling reiterated his position that Johnson

had fraudulently induced him into believing that they were married and that, but for this

inducement, he would not have agreed to the terms of the 1995 decree. In an order dated

July 25, 2001, the trial court concluded that “the agreed judgment remains interlocutory,”

vacated the 1995 decree “pursuant to the Court’s continuing plenary power,” and

dismissed the case by approving Ventling’s “non-suit” of the divorce action. The trial court

also awarded attorney’s fees to Ventling.3
The Trial Court and [Ventling] were of the opinion and conclusion on April 13, 1995, that the

purpose of that hearing was granting unto the parties a divorce, and terminating their marital

status. The Court and [Ventling] would not discover until after April 13, 1995, that [Johnson]

denied the existence of a marriage relationship . . .

The court further pronounced the following conclusions of law:

A decree or court order which includes a provision for the payment of alimony, even

contractual alimony, suffers from a failure of consideration if in fact the parties are not and

were never married . . .

A money judgment to equalize, or made incident to effecting a just and right division of

community property, is a legal nullity and a legal fiction, when in fact the parties were never

married and thus, as a matter of law, there can be no community property estate. A

judgment upon such grounds fails for want of consideration.

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Johnson appealed this judgment, and we concluded that the trial court lacked

jurisdiction to vacate the 1995 decree. Johnson v. Ventling, 132 S.W.3d 173, 179 (Tex.

App.–Corpus Christi 2004, no pet.). Although the parties agreed that they were never

married, we nevertheless held that the 1995 decree “was a final divorce judgment and not

interlocutory at the time the trial court signed the 2001 judgment.” Id. at 178. Because the

decree was a final judgment, the trial court’s plenary jurisdiction to vacate the decree

expired thirty days after it was signed. Id.; see TEX. R. CIV. P. 329b(d). We further

concluded that “the decree contained findings sufficient to establish the jurisdictional basis

for a valid judgment,” and therefore, “the decree is not void and may not be collaterally

attacked.” Johnson, 132 S.W.3d at 178 (citing Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.

2003) (“In general, as long as the court entering a judgment has jurisdiction of the parties

and the subject matter and does not act outside its capacity as a court, the judgment is not

void.”); Toles v. Toles, 113 S.W.3d 899, 914 (Tex. App.–Dallas 2003, pet. denied)).

Because the trial court had no jurisdiction to sign the 2001 judgment vacating the 1995

decree, we dismissed the appeal for want of jurisdiction. Id. at 179.

Johnson then instituted proceedings in Iowa, where Ventling resided, seeking to

domesticate the 1995 decree and enforce the alimony provisions in that state. In an order

dated January 30, 2007, the Iowa court allowed enforcement of the $25,537 lump sum

property division payment but disallowed enforcement of the contractual alimony
 The June 16, 2009 judgment was at least the third final judgment rendered by the trial court in this 4

case. After a hearing on January 16, 2009, the trial court rendered its original judgment on March 11, 2009

granting Johnson’s motion for enforcement and awarding to Johnson: (1) $306,375, representing the

outstanding alimony balance and accrued interest; (2) $61,121.20, representing damages for adverse tax

consequences and accrued interest; (3) $60,863.46, representing the lump sum property settlement payment

and accrued interest; and (4) $76,620.38 in attorney’s fees, $9,070.23 in court costs, $7,500 in attorney’s fees

in the event of an appeal to this court and $5,000 in attorney’s fees in the event of an appeal to the Texas

Supreme Court. On April 13, 2009, the trial court rendered an amended final judgment (1) omitting the

interest on the outstanding alimony, (2) omitting the damages for adverse tax consequences, and (3) awarding

a reduced amount of attorney’s fees. Finally, after a second hearing on June 9, 2009, the trial court vacated

the two previous judgments and rendered its judgment denying Johnson’s motion for enforcement in its

entirety.

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provisions, noting that the obligations expressed therein did not constitute a “judgment”

enforceable in Iowa. Johnson then returned to Texas in an effort to secure such a

judgment. Specifically, Johnson sought a judgment for the total amount of Ventling’s

alimony obligations, accelerated according to the terms of the decree, as well as damages

for adverse tax consequences and attorney’s fees. In response, Ventling again asserted

defenses of fraud, accident, mistake, estoppel, illegality, res judicata, statute of limitations,

failure of consideration, and statute of frauds. On June 16, 2009, the trial court rendered

judgment in favor of Ventling, denying all relief requested by Johnson. The trial court 4

subsequently entered the following findings of fact and conclusions of law:

Findings of Fact

1. On April 13, 1995, the Trial Court signed a final judgment in the above

entitled and numbered cause;

2. The final judgment included a separate provision that Wayne Ventling

pay Patricia M. Johnson spousal alimony in the amount of $2,500.00

per month for a term of 84 months;

3. On September 26, 1997, Patricia Johnson filed a Motion to Enforce

the judgment, alleging a failure by Wayne Ventling to pay money due

her in the April 13, 1995 judgment, and a failure to make spousal

alimony payments;

4. An Answer to the enforcement suit was filed by Wayne Ventling, in

which affirmative defenses were raised;

5. No jury was demanded by either party, and all matters of fact and

of law were submitted to the Trial Court for resolution.

6. The alimony provision of the final decree of divorce signed April 13,

2005, as stated in the decree on page 7, was intended to qualify as
 Ventling moved this Court to dismiss the appeal for want of jurisdiction, contending that Johnson’s 5

notice of appeal was untimely. See TEX. R. APP. P. 26.1 (stating that a notice of appeal must be filed within

thirty days after the judgment is signed, or within ninety days after the judgment is signed if any party timely

files a motion to modify the judgment). Johnson filed her notice of appeal on September 14, 2009, which was

ninety days after the judgment was signed. According to Johnson, the notice was timely because she had

filed a motion to vacate the judgment on July 21, 2009, thereby extending the deadline for filing a notice of

appeal. See id. Ventling argued that Johnson’s motion to vacate was itself untimely and that it therefore did

not serve to extend the deadline. See TEX. R. CIV. P. 329b(g) (stating that a motion to modify a judgment must

be filed within thirty days after the judgment is signed). However, although Johnson’s motion to vacate was

file stamped by the District Clerk as having been received on July 21, 2009—more than thirty days after the

judgment was signed—the motion was actually mailed by Johnson to the trial court manager on July 15, 2009.

W e denied Ventling’s motion to dismiss the appeal because Johnson’s motion to vacate, having been mailed

to the trial court manager within thirty days following the signing of the judgment, was sufficient under the

applicable rules to extend the deadline for filing a notice of appeal. See TEX. R. CIV. P. 5 (“If any document

is sent to the proper clerk . . . and is deposited in the mail on or before the last day for filing same, the same,

if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed timely filed.”);

Stokes v. Aberdeen Ins. Co., 917 S.W .2d 267, 268 (Tex. 1996) (“For purposes of determining whether a party

7

contractual alimony as that term was defined in section 71(a) of the

Internal Revenue Code of 1986.

Conclusions of Law

7. Texas Family Code Chapter 9 provides that a party affected by a

decree of divorce providing for a division of property “as provided by

Chapter 7" may request enforcement of that decree.

8. Chapter 7 of the Texas Family Code allows a trial court, in a decree

of divorce, to order a division of the estate of the parties.

9. As the [sic] Patricia M. Johnson has openly confessed that the parties

were never married, and were never divorced, whatever property or

property rights which may have been acquired or accumulated by or

between them prior to April 13, 1995, was not community property.

10. On the date this court’s final judgment was signed in this case, April

13, 1995, a trial court judgment or court order judicially imposing the

payment of spousal alimony was void because alimony, as defined in

26 United States Code 71, requires the existence of a marriage. The

provisions within the 1995 Decree pertaining to alimony are therefore

not enforceable.

11. Patricia Johnson’s motions to enforce the Decree and her request for

judgment on the balance she alleges is due for alimony payments

under the Decree must be denied.

12. Patricia Johnson’s Declaratory Judgment Action seeking a declaration

that she is entitled to alimony under the 1995 Decree must be denied.

13. Patricia Johnson’s claims for attorneys fees are denied.

14. Patricia Johnson’s claim for post judgment interest is denied.

This appeal followed.5
files a document timely (thereby establishing appellate deadlines), we hold that mailing the document to the

proper court address is conditionally effective as mailing it to the proper court clerk’s address.” (Emphasis in

original)).

 Johnson does not challenge the trial court’s judgment as it relates to the lump sum property 6

settlement payment or the damages for adverse tax consequences as provided in the 1995 decree.

 In his brief on appeal, Ventling notes correctly that “[f]indings of fact in a case tried to the court have 7

the same force and dignity as a jury’s verdict upon questions.” Anderson v. City of Seven Points, 806 S.W .2d

791, 794 (Tex. 1991); Valley Diagnostic Clinic, P.A. v. Dougherty, 287 S.W .3d 151, 155 (Tex. App.–Corpus

Christi 2009, no pet.). However, only the trial court’s conclusions of law—not its findings of fact—are in

dispute here.

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II. DISCUSSION

On appeal, Johnson argues by two issues that the trial court erred in denying her

motion to enforce the contractual alimony provisions of the 1995 decree. By her first 6

issue, Johnson claims that the trial court erred because: (1) our decision in 2004 is the

“law of the case” and contradicts the trial court’s ruling; (2) Ventling’s affirmative defenses

to Johnson’s enforcement action amounted to an impermissible collateral attack on the

1995 decree; (3) any “irregularity” in the 1995 decree “regarding the parties’ pleaded

common law marital status would at most make the judgment voidable” and therefore not

vulnerable to collateral attack; and (4) the trial court “had a duty to exercise its inherent

power to enforce the terms” of the decree. By her second issue, Johnson argues that,

because the contractual alimony provisions are in fact enforceable, she is entitled to a

judgment of $142,500, representing the payments due from Ventling, as well as interest

and attorney’s fees.

1. Standard of Review

On appeal, a trial court’s conclusions of law are reviewed de novo and will be

reversed only if they are erroneous as a matter of law. Villagomez v. Rockwood 7

Specialties, Inc., 210 S.W.3d 720, 727, 728 (Tex. App.–Corpus Christi 2006, pet. denied)

(citing Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex. App.–Austin 1999, pet.

denied); Hofland v. Fireman’s Fund Ins. Co., 907 S.W.2d 597, 599 (Tex. App.–Corpus

Christi 1995, no writ)). We will uphold the trial court’s conclusions upon any legal theory
 The Texas Family Code explicitly allows parties to a divorce proceeding to enter into a written 8

agreement concerning spousal maintenance. See TEX. FAM. CODE ANN. § 7.006(a) (Vernon 2006). Under

that statute, if the court finds that the terms of such a written agreement are “just and right,” those terms then

become binding on the court. Id. § 7.006(b). The decree at issue here does not explicitly state whether the

trial court found the terms of the parties’ alimony agreement to be “just and right”; however, the trial court’s

signature on the decree strongly indicates that it approved of the terms contained therein.

9

supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794

(Tex. 2002); Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.–Houston [1st Dist.]

1996, no writ).

2. Applicable Law

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, pet. denied); see Francis v. Francis, 412 S.W.2d 29, 32-33 (Tex.

1967) (holding that permanent alimony contravenes the public policy of the state).8

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.) (quoting Francis,

412 S.W.2d at 31). When an agreement for the payment of alimony is executed by the

parties and incorporated into the judgment of divorce, 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.) (citing O’Benar v. O’Benar, 410 S.W.2d 214, 217 (Tex. Civ.

App.–Dallas 1968, writ dism’d); Vickers v. Vickers, 553 S.W.2d 768, 769-70 (Tex. Civ.

App.–Beaumont 1977, no writ); Pollard v. Steffens, 161 Tex. 594, 602, 343 S.W.2d 234,

239 (1961)). Further, a party’s signature approving the contents of an agreed divorce

decree has been found to be a binding attestation of that party’s agreement to contractual

support provisions, even in the absence of a separate written support agreement. See

Rousseau v. Rousseau Sprecher, 843 S.W.2d 300, 301 (Tex. App.–Houston [14th Dist.]

1992, no writ) (requirement that agreement for contractual alimony must be in writing is

satisfied if divorce decree specifies terms of agreement and parties sign divorce decree);
10

Mackey v. Mackey, 721 S.W.2d 575, 579 (Tex. App.–Corpus Christi 1986, no writ)

(rejecting the argument that a party’s approval of the form and content of an agreed

divorce decree was merely consent to entry of the decree and not execution of the

contract). “As with any other contract, absent consent of the parties, the provisions of the

agreement will not be modified or set aside except for fraud, accident or mutual mistake

of fact.” Schwartz, 247 S.W.3d 804 (citing Boyd v. Boyd, 545 S.W.2d 520, 523 (Tex. Civ.

App.–Houston [1st Dist.] 1976, no writ)).

In general, a judgment rendered by consent has the same force as a judgment

entered after protracted litigation, except “to the extent that the consent excuses error and

operates to end all controversy between the parties.” Birdwell, 819 S.W.2d at 226 (citing

McCray v. McCray, 584 S.W.2d 279 (Tex. 1979); Wagner v. Warnasch, 156 Tex. 334, 295

S.W.2d 890, 892 (1956)). “Thus, in suits to enforce agreed judgments, parties may not

raise contractual defenses because such defenses constitute impermissible collateral

attacks on the prior judgments.” Id. at 226-27 (quoting Ex parte Gorena, 595 S.W.2d 841,

844 (Tex. 1979)); see Chess v. Chess, 627 S.W.2d 513, 516 (Tex. App.–Corpus Christi

1982, no writ).

3. Analysis

We agree in part with Johnson’s argument that our 2004 opinion is the “law of the

case” and contradicts the judgment on appeal. Under the “law of the case” doctrine,

questions of law decided on appeal to a court of last resort will govern the case throughout

its subsequent stages. Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex.

2006) (citing Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). By narrowing the

issues in successive stages of the litigation, the doctrine is intended to achieve uniformity

of decision as well as judicial economy and efficiency. Briscoe v. Goodman Corp., 102

S.W.3d 714, 716 (Tex. 2003). As noted, in 2004 we concluded that the 1995 decree was

a final divorce judgment, is “not void,” and “may not be collaterally attacked.” Johnson, 132
11

S.W.3d at 178 (citing Putegnat v. Putegnat, 706 S.W.2d 702, 703-04 (Tex. App.–Corpus

Christi 1986, no writ) (“It is well established in Texas that a divorce judgment, unappealed,

and regular on its face, is not subject to a collateral attack in a subsequent suit.”)). The law

of the case doctrine precludes us from reconsidering these issues. See id. Johnson

contends that, because of this, the trial court was compelled to enforce the contractual

alimony provisions contained in the 1995 decree.

In response, Ventling sets forth several arguments. First, he claims that the

contractual alimony provisions were “not part of the decree” and “expressly not part of any

judgment,” citing the language in the decree stating that the alimony obligation “is

contractual in nature and is not an obligation imposed by order or decree of court.” We

disagree. It is true that the alimony obligation is contractual in nature; the court did not

have the authority to impose alimony obligations without the parties’ consent. See Francis,

412 S.W.2d at 32-33. However, the alimony terms were set forth entirely within the order,

which was entitled “Final Decree of Divorce” and which was signed by the trial court as well

as the parties and their attorneys. The fact that the decree stated that the alimony

obligation is not “imposed by order or decree of court” does not alter the fact that the terms

were agreed to by the parties and approved by the trial court, as evidenced by its

signature. Because the contractual alimony terms were incorporated into the judgment of

divorce, they are binding on the parties. Schwartz, 247 S.W.3d at 806 (citing O’Benar, 410

S.W.2d at 217; Vickers, 553 S.W.2d at 769-70; Pollard, 161 Tex. at 602, 343 S.W.2d at

239).

Ventling asserts further that “the non-existence of a marriage prevents a party from

filing a motion to enforce [contractual alimony] because there is no division of a marital

estate to enforce.” However, Ventling does not direct us to any authority supporting this

point other than the trial court’s 2001 conclusion of law—which itself did not cite any

supporting case law or statute—stating that “[a] decree or court order which includes a
Ventling’s affirmative defenses to enforcement of the alimony provisions—including his claim that 9

he was defrauded by Johnson into agreeing to a divorce—are likewise unavailable to him in the instant

proceeding. Instead, these defenses may only be raised by petition for bill of review. See TEX. R. CIV. P.

329b(f) (“On expiration of the time within which the trial court has plenary power, a judgment cannot be set

aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law . . . .”);

see also Wembley Inv. Co. v. Herrera, 11 S.W .3d 924, 926-27 (Tex. 1999); In re D.S., 76 S.W .3d 512, 518

(Tex. App.–Houston [14th Dist.] 2002, no pet.) (citing Middleton v. Murff, 689 S.W .2d 212, 213 (Tex. 1985)

(“After the time for an appeal expires, a bill of review is the exclusive remedy to vacate the judgment or a

provision thereof, even if it could be shown to be void.”)). We note, moreover, that Ventling’s 1997 and 2008

pleadings cannot be construed as petitions for bill of review because they do not allege all of the elements

necessary to obtain such relief. See Mowbray v. Avery, 76 S.W .3d 663, 682 (Tex. App.–Corpus Christi 2002,

pet. denied) (citing Alexander v. Hagedorn, 148 Tex. 565, 568-69, 226 S.W .2d 996, 998 (1950)) (noting that,

in order to state a claim for a bill of review, a petitioner must allege (1) a meritorious defense to the cause of

action supporting the judgment (2) which he was prevented from making by the fraud, accident or wrongful

act of the opposing party, (3) unmixed with any fault or negligence of his own).

12

provision for the payment of alimony, even contractual alimony, suffers from a failure of

consideration if in fact the parties are not and never were married.” Even if we were to

adopt this proposition of law—for which we find no persuasive authority—our 2004 opinion

compels the conclusion that contractual defenses, such as failure of consideration, are now

unavailable to Ventling because the instant proceeding is a collateral attack on the 1995

decree. See Johnson, 132 S.W.3d at 178-79 (“We hold that Ventling’s challenge to the

enforceability of the decree in this proceeding amounted to an impermissible collateral

attack.”); Birdwell, 819 S.W.2d at 226-27 (“[I]n suits to enforce agreed judgments, parties

may not raise contractual defenses because such defenses constitute impermissible

collateral attacks on the prior judgments.”). We note also that the now-stipulated lack of

9

a “marital estate” has no bearing on the issue of contractual alimony, which, if awarded,

is not part of the “just and right” division of the marital estate in a divorce proceeding.

Finally, the fact that both parties now claim that they were never married is

immaterial. Ventling’s original petition for divorce asserted that the parties “have a

common law marriage” and the final decree dissolved that purported marriage under terms

consented to by both parties with advice of counsel. Both parties signed the final decree,

acknowledging that they “approved and consented to” the terms “as to both form and

substance.” Neither party appealed the decree, which was a final divorce judgment.

Johnson, 132 S.W.3d at 178, 179. Regardless of whether the parties now deny that they
13

were ever married, the 1995 decree clearly implied that they were and that a common-law

marriage was the “relationship” between them that was being terminated.

We conclude that the trial court erred in denying Johnson’s motion for enforcement

because the contractual alimony provisions contained in the 1995 decree are enforceable

and the decree is not void. Johnson’s issues are sustained.

III. CONCLUSION

We reverse the judgment and remand the cause to the trial court to grant Johnson’s

motion for enforcement and to award her: (1) $142,500 in unpaid contractual alimony; (2)

appropriate prejudgment interest, see Johnson & Higgins of Tex., Inc. v. Kenneco Energy,

Inc., 962 S.W.2d 507, 528 (Tex. 1998) (permitting the award of prejudgment interest based

on general principles of equity); (3) reasonable attorney’s fees; and (4) costs of court.

________________________

DORI CONTRERAS GARZA

Justice

Delivered and filed the

21st day of October, 2010.