REVERSE and REMAND; and Opinion Filed December 18, 2013.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-11-01707-CV

IN THE INTEREST OF L.T.H., R.R.H., AND A.W.H., MINOR CHILDREN

On Appeal from the 219th Judicial District Court

Collin County, Texas

Trial Court Cause No. 219-55534-06

OPINION

Before Justices Bridges, Fillmore, and Lewis 

Opinion by Justice Lewis

Appellant Brooke Harvey Robbins appeals from the trial court’s final judgment that she 

take nothing in her post-divorce enforcement suit against Robert Harvey. Robbins contends that 

the trial court abused its discretion by refusing to enforce a 2007 Texas judgment that modified 

the parties’ California divorce decree. Alternatively, Robbins contends that if the California 

decree could not be modified, the trial court abused its discretion by failing to enforce the 

California divorce decree. For the reasons that follow, we reverse and remand to the trial court 

for further proceedings.

I. BACKGROUND

Brooke Harvey Robbins (Robbins) and Robert Harvey (Harvey) were divorced in the 

State of California on October 18, 2005, pursuant to a Judgment of Dissolution of Marriage 

which attached and incorporated a written stipulation for judgment and a written settlement 

agreement between the parties (the California Divorce Decree). At the time of their divorce, 
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Robbins and Harvey had three minor children. The California Divorce Decree required Harvey 

to pay Robbins $30,000 per month as family support. “Family support” included both child 

support and spousal support. Six months later, Robbins and Harvey modified their divorce 

decree, adding language to make the family support payment tax deductible. A reformed marital 

settlement agreement was attached to the reformed decree as an exhibit and adopted in its 

entirety as the order of the California court (the Reformed California Divorce Decree). The 

California court signed the Reformed California Divorce Decree on April 27, 2006. Robbins, 

Harvey, and their three children moved to Texas later that year.

In December 2006, Harvey filed a petition for divorce in Collin County District Court, 

Texas, alleging he and Robbins had entered into a common-law marriage on or about August 15, 

2005. Robbins responded by registering both the original California Divorce Decree and the 

Reformed California Divorce Decree with the Collin County District Court under the provisions 

of the Uniform Interstate Family Support Act (UIFSA). She also filed an enforcement suit

seeking payment of an arrearage of family support of $90,000. On May 10, 2007, Robbins and 

Harvey signed a mediated settlement agreement (MSA) in the Texas divorce proceeding. 

According to the provisions of the MSA, the parties agreed that no common-law marriage 

existed, and the MSA was intended to reform the California Divorce Decree, as modified by the 

Reformed California Divorce Decree. The MSA stipulated the amount of arrearage and 

established installment payments. Harvey agreed to pay $4,000 per month in spousal support for 

36 months, and $6,000 per month thereafter, until Robbins’s death or remarriage. He also agreed 

to pay $3,000 per month in child support, to be reduced by $1,000 per month as each child 

became emancipated. The MSA was then incorporated into an order titled “Final Decree,” dated 

August 22, 2007 (the 2007 Texas judgment).
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In 2008, Robbins filed a motion for enforcement of the child support order and spousal 

support order set forth in the 2007 Texas judgment. Harvey filed a general denial. After a bench 

trial, the trial court signed a final order awarding Robbins judgment for unpaid spousal support 

plus attorney’s fees. In February 2010, Robbins filed another enforcement action, alleging 

Harvey was again behind in payment of child support and spousal support. The parties reached a 

Rule 11 agreement that spousal support payable by Harvey would not increase from $4,000 to 

$6,000 per month until January 1, 2011. This agreement was incorporated into an Agreed 

Temporary Order signed by the trial court on October 14, 2010. However, in January 2011, 

Harvey did not pay the increased spousal support as agreed, and stopped paying spousal support 

altogether. Robbins amended her pending enforcement action to reflect the increased amount of 

unpaid spousal support. Harvey’s amended answer alleged the 2007 Texas judgment was void 

and the court lacked jurisdiction because there was no valid court order to enforce. He also 

alleged various affirmative defenses. The trial court conducted a bench trial on August 10, 2011. 

On August 17, 2011, the trial court signed a memorandum finding that Harvey’s obligation to 

pay spousal support to Robbins terminated as of the date Robbins began cohabitating with 

another man.1

 

Robbins requested findings of fact and conclusions of law. She also filed a motion to 

reconsider the order terminating spousal support and a motion for new trial. Harvey filed a 

motion to enter judgment. On November 10, 2011, the trial court signed a final judgment that 

Robbins take nothing from Harvey. Robbins again requested findings of fact and conclusions of 

law. She also filed a notice of appeal. In January and February 2012, Robbins filed notices of 

past-due findings of fact and conclusions of law. On March 15, 2012, the trial court issued 

findings of fact and conclusions of law, concluding that it lacked subject matter jurisdiction to 

 1 The trial court’s memorandum stated “This Memorandum shall have the same force and effect as an Order.”
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modify the spousal maintenance provisions of the California Divorce Decree, that the MSA was 

unenforceable, that the 2007 Texas judgment was void, and that Harvey’s obligation to pay 

Robbins spousal support terminated at the time Robbins began cohabitating with another man.

II. STANDARD OF REVIEW

We review a trial court’s ruling on a post-divorce motion for enforcement of a divorce 

decree under an abuse of discretion standard. Hollingsworth v. Hollingsworth, 274 S.W.3d 811, 

815 (Tex. App.—Dallas 2008, no pet.); Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied). We review the trial court’s construction of an 

unambiguous contract de novo. In re C.P.Y., 364 S.W.3d 411, 413 (Tex. App.—Dallas 2012, no 

pet.); Hidalgo v. Hidalgo, No. 05-06-00966-CV, 2011 WL 1797621, at *2 (Tex. App.—Dallas 

May 10, 2011, no pet.).

III. DISCUSSION

Robbins raises two issues on appeal. In her first issue, Robbins contends the trial court 

abused its discretion in refusing to enforce the 2007 Texas judgment. She presents five

arguments in support of her first issue, asserting: (1) the 2007 Texas judgment requires payment 

of contractual alimony which is not subject to regulation under the Texas Family Code; (2) the 

trial court erred in concluding the 2007 Texas judgment was void because the trial court lacked 

subject matter jurisdiction to modify the California Divorce Decree; (3) the trial court erred in 

concluding Harvey’s obligation to pay spousal support terminated when Robbins began 

cohabitating with another man; (4) the trial court erred in concluding that the 2007 Texas 

judgment was void because no Texas divorce was granted at that time; and (5) the trial court 

erred in concluding the MSA was unenforceable due to mistake or lack of consideration. In her 

second issue, Robbins argues in the alternative that if the California Divorce Decree could not be 
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modified, then the trial court abused its discretion by failing to enforce it and instead terminating 

the decree’s family support obligations.

A. CONTRACTUAL SPOUSAL SUPPORT

Chapter 8 of the family code, which governs spousal maintenance, does not apply to an 

alimony provision in a divorce decree that restates the parties’ contractual agreement for spousal 

support. Kee v. Kee, 307 S.W.3d 812, 814 (Tex. App.—Dallas 2010, pet. denied) (citing 

McCollough v. McCollough, 212 S.W.3d 638, 648 (Tex. App.—Austin 2006, no pet.)). In this 

case, the Reformed California Divorce Decree adopted and incorporated the marital settlement 

agreement between Robbins and Harvey in which Harvey agreed to pay Robbins family support, 

which included child support and spousal support. “When such an agreement 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.) (citations omitted). “The fact that a court expressly approves such 

an agreement and incorporates it into the final divorce decree does not transform contractual 

alimony payments into court-ordered maintenance payments subject to the termination and 

modification provisions of chapter 8 of the family code.” McCollough, 212 S.W.3d at 648. We 

conclude that the agreement incident to divorce in this case is governed by contract law and not 

chapter 8 of the family code. 

In construing a written agreement, we must ascertain and give effect to the parties’ 

intentions as expressed in the agreement. See In re C.P.Y., 364 S.W.3d at 413. We consider 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. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 

311–12 (Tex. 2005) (per curiam); Carbona v. CH Med., Inc., 266 S.W.3d 675, 680 (Tex. App.—

Dallas 2008, no pet.). If the agreement is susceptible to more than one reasonable interpretation, 
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it is ambiguous. Carbona, 266 S.W.3d at 680; Hackberry Creek Country Club, Inc. v. 

Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 56 (Tex. App.—Dallas 2006, pet. 

denied). If the agreement is not ambiguous, we will construe it as a matter of law. Milner v. 

Milner, 361 S.W.3d 615, 619 (Tex. 2012); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). 

The reformed marital settlement agreement adopted and incorporated into the Reformed 

California Divorce Decree expressly provided several options whereby the parties could modify 

the agreement:

This Agreement may be modified by subsequent Agreement of the Parties only, 

by an instrument in writing signed by both of them, an oral agreement to the 

extent that the Parties execute it, or an in-court oral agreement made into an order 

by a court of competent jurisdiction.

Reformed Marital Settlement Agreement, Section XXIX. Thus, pursuant to the terms of the 

agreement, the parties could modify the contractual obligation of spousal support by signing a 

written agreement. A court order was not necessary to achieve a valid modification. 

B. MEDIATED SETTLEMENT AGREEMENT

As discussed above, the Reformed California Divorce Decree authorized the parties to 

modify their marital settlement agreement by agreement of the parties only. Robbins and Harvey 

modified the family support obligations of the Reformed California Divorce Decree when they 

entered into the MSA, a written agreement signed by both parties. The MSA refers to Robbins 

as “Respondent,” and Harvey as “Petitioner.” The MSA states:

Petitioner will pay tax deductible alimony to Respondent in the amount of $4,000 

per month for 36 months beginning on June 1, 2007; after 36 months, alimony 

increases to 6,000 per month beginning June 1, 2010, and to continue until her 

death or remarriage . . . whichever occurs first. This agreement is intended to 

reform the parties’ California agreement heretofore entered on or about 10-18-05, 

and amended on or about 2-28-06.

In interpreting an agreement, we attempt to determine the true intent of the parties as it is 

expressed in the agreement. Coker, 650 S.W.2d at 393. The express language of the MSA 
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reflects that Robbins and Harvey intended for the MSA to modify the family support obligations 

set forth in the parties’ Reformed California Divorce Decree. We conclude the MSA was a valid

and binding modification of the Reformed California Divorce Decree. The trial court erred by

refusing to enforce the parties’ agreed modification. 

 In its Findings of Fact and Conclusions of Law, the trial court concluded “the MSA is 

unenforceable because a mistake occurred with respect to a material term of the MSA and 

because of failure of consideration.” Harvey argued, and the trial court agreed, that the mistake 

was the parties’ belief that the trial court had the authority to modify the parties’ Reformed 

California Divorce Decree. However, whether the trial court had authority to modify a 

California divorce decree was not a mistake of fact. “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 mistake of fact.” Schwartz, 247 S.W.3d at 806. Harvey made no allegation of fraud 

or accident. And the trial court’s lack of subject matter jurisdiction to modify the California 

decree pursuant to section 159.211 of the family code was a mistake of law, not a mistake of 

fact. See TEX. FAM. CODE ANN. § 159.211(b) (West 2008) (“A tribunal of this state may not 

modify a spousal support order issued by a tribunal of another state having continuing, exclusive 

jurisdiction over that order under the law of that state.”).

We further conclude there was no failure of consideration. Robbins agreed to accept a 

greatly reduced monthly payment of spousal support and child support in consideration for 

Harvey’s promise to pay the spousal support and child support. Consideration is a bargained-for 

present exchange in return for a promise. Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 

695, 702 (Tex. App.—Dallas 2008, no pet.) (citing Roark v. Stallworth Oil & Gas, Inc., 813 

S.W.2d 492, 496 (Tex. 1991)). The trial court erred in concluding the MSA was unenforceable 

due to mistake of fact or failure of consideration.
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C. COHABITATION

Robbins asserts the trial court erred in concluding Harvey’s obligation to pay spousal 

support terminated when Robbins began cohabitating with another man. At trial, Harvey argued 

his spousal support payment obligation should be terminated because Robbins was cohabitating 

with Gary Allen. In support of his position, Harvey relied upon chapter 8 of the family code, 

which provides for the cessation of spousal maintenance payments in the event of cohabitation. 

See TEX. FAM. CODE ANN. § 8.056(b) (West Supp. 2013). In its Conclusions of Law, the trial 

court concluded that “Harvey’s obligation to pay Robbins spousal maintenance terminated at the 

time Robbins began cohabitating with Mr. Allen.” 

Robbins argues contractual alimony is not subject to termination for cohabitation under 

section 8.056 of the family code. Harvey’s spousal support obligation arises out of the Reformed 

California Divorce Decree, as modified by the MSA; his obligation is not court-ordered spousal 

maintenance governed by chapter 8 of the family code. In the MSA, Robbins and Harvey agreed 

that Harvey would pay Robbins alimony in the amount of $4,000 per month for 36 months, and 

thereafter increasing to $6,000 per month, “to continue until her death or remarriage.” Neither 

the Reformed California Divorce Decree nor the MSA provide that Harvey’s spousal support 

obligation shall be terminated in the event of Robbins’s cohabitation. Because the Reformed 

California Divorce Decree and the MSA were founded upon settlement agreements reached by 

the parties, the trial court had no power to supply terms, provisions, or conditions not previously 

agreed upon by the parties. See Ammann v. Ammann, No. 03-09-00177-CV, 2010 WL 4260955, 

at *3 (Tex. App.—Austin Oct. 28, 2010, no pet.) (mem. op.) (citing McLendon v. McLendon, 

847 S.W.2d 601, 610 (Tex. App.—Dallas 1992, writ denied)). In Ammann, the trial court 

considered John Ammann’s motion to terminate his obligation to make spousal support 

payments because his ex-wife, Diane Ammann, was cohabitating with another person. See 
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Ammann, 2010 WL 4260955, at *3. In denying his motion, the trial court found that John 

Amman’s spousal support obligation arose out of a Rule 11 Agreement signed by the parties and 

filed with the court, which agreement did not contain a provision terminating spousal support in 

the event of Diane Ammann’s cohabitation. Id. On appeal, our sister Court affirmed, stating: 

“An agreed judgment based upon a settlement agreement, such as the divorce decree in the 

present case, must be in strict or literal compliance with the terms of that settlement agreement.” 

Id.

Because the Reformed California Divorce Decree and the MSA do not provide that 

Harvey’s spousal support obligation shall terminate in the event of Robbins’s cohabitation, the

trial court erred in concluding Harvey’s obligation to pay Robbins spousal support terminated at 

the time Robbins began cohabitating with Mr. Allen. 

D. THE 2007 TEXAS JUDGMENT

Robbins argues the trial court erred in concluding the 2007 Texas judgment was void due 

to lack of subject matter jurisdiction. Our review of the record reflects the trial court did not 

conclude the 2007 Texas judgment was void due to lack of subject matter jurisdiction, but 

instead concluded it lacked “subject matter jurisdiction to modify the spousal maintenance 

provisions of the California Decree pursuant to section 159.211 of the Texas Family Code.” 

Section 159.211 of the Texas Family Code prohibits a Texas court from modifying “a spousal 

support order issued by a tribunal of another state having continuing, exclusive jurisdiction over 

that order under the law of that state.” See TEX. FAM. CODE ANN. § 159.211(b). However, as 

discussed above, the spousal support provision in the Reformed California Divorce Decree was

contractual and not court-ordered spousal maintenance under California law. Thus, as with any 

other contract, absent fraud, accident, or mistake, the trial court did not have authority to modify 

or set aside the spousal support provisions absent consent of the parties. See Schwartz, 247 
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S.W.3d at 806. We do not address whether the trial court lacked subject matter jurisdiction to 

modify the spousal support provision in this case; instead, we merely conclude the trial court 

lacked authority to do so. 

Robbins also asserts the trial court erred in concluding the 2007 Texas judgment was void

because no Texas divorce was granted at the time. The 2007 Texas judgment appears to be the 

source of confusion to the parties and the trial court. There is nothing in the record to indicate 

why the 2007 Texas judgment was titled “Final Decree.” Indeed, the record confirms that the 

parties agreed, and confirmed in writing in the MSA, that they had not entered into a common 

law marriage, and they were divorced in California on October 18, 2005. In the 2007 Texas 

judgment, which purports to incorporate the MSA, the trial court likewise found there was no 

common law marriage between the parties, and that the parties were divorced pursuant to Case 

No. 04D011133, Superior Court of the State of California, Orange County. Four years later, at 

the conclusion of a trial on Robbins’s motion to enforce the spousal support obligations of the 

2007 Texas judgment, the trial court signed a final judgment finding that Robbins should take 

nothing in her suit against Harvey. The final judgment was silent with respect to the 2007 Texas 

judgment. In March 2012, the trial court signed findings of fact and conclusions of law and 

concluded the 2007 Texas judgment was void because no marriage existed and no divorce was 

granted. Although we find nothing in the record to explain the basis for the trial court’s 

conclusion, Robbins suggests the trial court reached this conclusion based on the general rule 

that any orders ancillary to a divorce proceeding are void if a divorce is not granted. See Carter 

v. Carter, 336 S.W.2d 466, 468 (Tex. Civ. App.—Austin 1960, no writ); Pelham v. Sanders, 290 

S.W.2d 684, 688 (Tex. Civ. App.—Texarkana 1956, no writ). Robbins argues the 2007 Texas 

judgment was not intended to be ancillary to a Texas divorce. Instead, she contends it was 

intended to modify the Reformed California Divorce Decree and then to enforce it. 
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Notwithstanding Robbins’s assumptions as to the intent of the trial court, because we have 

concluded that the MSA was a binding and enforceable modification of the Reformed California 

Divorce Decree, we need not address whether the 2007 Texas Judgment was void because it 

failed to grant a divorce.

E. ENFORCEMENT OF THE CALIFORNIA DIVORCE DECREE

Robbins argues, in the alternative, that if the California decree could not be modified, the 

trial court abused its discretion by failing to enforce it and instead, terminating the decree’s 

family support obligation. In light of our conclusions with respect to Robbins’s first issue, we 

need not address her alternative issue. 

IV. CONCLUSION

Based on our conclusions above, we reverse and remand to the trial court for further 

proceedings consistent with this opinion.

111707F.P05

/David Lewis/

DAVID LEWIS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

IN THE INTEREST OF L.T.H., R.R.H., 

A.W.H., MINOR CHILDREN

No. 05-11-01707-CV 

On Appeal from the 219th Judicial District 

Court, Collin County, Texas

Trial Court Cause No. 219-55534-06.

Opinion delivered by Justice Lewis. 

Justices Bridges and Fillmore participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

REVERSED and this cause is REMANDED to the trial court for further proceedings consistent 

with this opinion.

It is ORDERED that appellant, BROOKE HARVEY ROBBINS, recover her costs of 

this appeal from appellee, ROBERT HARVEY. 

Judgment entered this 18th day of December, 2013.

/David Lewis/

DAVID LEWIS

JUSTICE