Affirmed and Majority and Concurring Opinions filed April 30, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00058-CV

WILLIAM WADE BARTLETT, Appellant

V.

LORI LEE BARTLETT, Appellee

On Appeal from the 309th District Court

Harris County, Texas

Trial Court Cause No. 2012-55541

MAJORITY OPINION

Appellee Lori Lee Bartlett sued appellant William Wade Bartlett for breach 

of contract after the couple divorced pursuant to an agreed decree and William 

refused to reimburse Lori for their son’s college expenses. After a bench trial, the 

court awarded Lori damages for the amounts she spent on their son’s college 

expenses during the son’s first semester, as well as attorney’s fees. William 

challenges the trial court’s judgment in five issues, contending that the trial court 

abused its discretion by awarding Lori the college expenses because (1) the 
college-expense provision of the decree is void; (2) the college-expense provision 

is not enforceable as a contract; (3) enforceability of the provision is precluded by 

statute; (4) William’s performance is excused because his son committed the first 

material breach by failing to maintain a cumulative “C” grade point average; and 

(5) the trial court’s award of health insurance and uninsured healthcare expenses is 

precluded by statute.

We overrule William’s first, second, third, and fifth issues because the trial 

court correctly concluded that the college-expense provision is not child support 

under the Family Code. We overrule William’s fourth issue because William 

waived this defense, and regardless, the record supports a deemed finding that any 

breach was not material.

I. BACKGROUND

Lori and William signed an agreed final decree of divorce. They had two 

children of the marriage, an elder son and younger daughter. In Part 7 of the 

decree, “Conservatorship and Support,” under a sub-part labeled “Child Support,” 

William was ordered to pay Lori $1,800 per month until one of several conditions 

was met and then $1,500 per month until another condition was met.1

Part 8 of the decree, “Division of Marital Estate,” addressed the properties 

and debts of Lori and William, the use and sale of the familial residence, 

1 Those conditions are as follows: 

1. any child reaches the age of eighteen years, provided that, if the child is fully 

enrolled in an accredited secondary school in a program leading toward a high 

school diploma or enrolled in courses for joint high school and junior college 

credit pursuant to Section 130.008, Education Code, the periodic child-support 

payments shall continue to be due and paid until the end of the month in 

which the child graduates;

2. any child marries;

3. any child dies

4. any child’s disabilities are otherwise removed for general purposes; or

5. further order modifying this child support.

2

 
contractual alimony, life insurance, federal income taxes, and “Education Beyond 

High School.” Under the “Education Beyond High School” provision, the parties 

agreed as follows:

It is ordered and decreed that William Wade Bartlett shall pay 100% 

of all reasonable education expenses incurred to send each child either 

to college or to technical, vocational, or business school of his 

approval, provided the child is a full-time student and maintains at 

least a “C” or equivalent grade point average toward the completion 

of either a college bachelor’s degree or a technical, vocational, or 

business school diploma. This obligation includes tuition, activities 

fees, laboratory fees, books, room and board, health insurance and 

related uninsured healthcare expenses, college dues and expenses, and 

other charges normally related to such education. This obligation may 

be enforced by the parties or the child.

The son began college in August 2012. Lori sued William in September 

2012 for breach of contract because William refused to pay for the son’s college 

expenses for the Fall 2012 semester. Initially, Lori paid for the college expenses. 

Then, William paid the tuition for the Spring and Summer 2013 semesters. The 

trial court admitted Plaintiff’s Exhibit 7, titled “Amounts Paid by Parties for 2012-

2013 School Semester,” which itemized the expenses as follows:

Amounts Paid by Lori Bartlett, 2012-2013

Application Fees for Trinity $2,688.40

Tuition Fall, Paid 8/3/2012 $2,904.53

Tuition Fall, Paid 9/3/2012 $2,904.53

Tuition Fall, Paid 10/4/2012 $2,904.53

Tuition Fall, Paid 11/5/2012 $650.00

Textbooks for Fall $350.00

Parking Pass for Fall $73.00

Move-In Expenses $1,470.52

Dorm Furnishings $821.99

Textbooks for Spring $350.00

Parking Pass for Spring $73.00

Total $15,190.50

Amounts Paid by Wade Bartlett, 2012-2013

Tuition Paid 12/7/2012 $10,130.99

Total $10,130.99

3
The son testified that after the Spring 2013 semester, his cumulative grade 

point average (GPA) dropped below a “C” average to 1.929. But after finishing 

the Summer 2013 semester, his cumulative GPA was at least a “C” average.

The trial court signed a final judgment in Lori’s favor, finding that William 

breached the college-expense provision of the agreed decree and that the son’s 

“grade point average for his freshman year was at least a ‘C’ average.” The court 

ordered William to reimburse Lori for the amounts she paid “per Exhibit P-7, 

attached hereto as Appendix 2, and incorporated herein by reference as though 

fully set forth herein.” Upon William’s request, the court signed findings of fact 

and conclusions of law, awarding Lori $15,190.50. The court concluded that the 

college-expense provision was “not a provision for child support under Chapter 

154 of the Texas Family Code.” The court also concluded that “the parties 

intended the provision to be enforceable as a contract, as evidenced by their 

signatures and agreement.”2

 William appealed. 

II. CHILD SUPPORT

William’s first, second, third, and fifth issues on appeal are premised on the 

notion that the college-expense provision is one for “child support.” However, 

following binding precedent from this court, we hold that the trial court did not 

abuse its discretion by concluding that the son’s college expenses are not child 

support. First we explain that the college expenses are not child support. Then we 

address each of William’s issues in turn.

2 In Conclusions of Law Nos. 5, 6, and 7, the trial court rejected William’s defenses of 

unclean hands, unenforceable order, and failure of condition precedent, respectively. The trial 

court did not address William’s argument, raised for the first time in his motion for new trial, 

that “any alleged contract was breached” due to the son’s failure to maintain a “C” average.

4

 
A. College Expenses Are Not Child Support

In the context of determining venue, this court has held that a “payment 

which is not to be made until after the child reaches the age of 18 is not child 

support.” Busbey v. Busbey, 619 S.W.2d 472, 475 (Tex. Civ. App.—Houston 

[14th Dist.] 1981, no writ) (holding that the adult son’s claim for an $800 money 

judgment was not a claim for child support when it was based on the father’s 

failure to release the amount of a savings account to the son when he turned 18, 

pursuant to the marriage settlement agreement). Last year, the Dallas Court of 

Appeals reaffirmed this understanding of the Family Code: “Child support, by 

definition, applies only to a child under the age of 18 years who has not yet 

graduated from high school or a high-school equivalent program.” In re W.R.B., 

No. 05-12-00776-CV, 2014 WL 1008222, at *4 (Tex. App.—Dallas Mar. 17, 

2014, pet. denied). The court distinguished child support from “post-majority 

support,” which “applies only to a non-disabled child who is 18 years of age or 

older and is no longer enrolled in high school or a high-school equivalent 

program.” Id. (citing Tex. Fam. Code Ann. §§ 154.001(a), 154.002(a), 

154.006(a)). The court held unequivocally that “post-majority support is not child 

support.” Id. Consequently, the current version of Section 154.124(c), which 

prohibits enforcement of child support by a breach of contract action,3 did not 

3 Section 154.124 provides that parties may enter into a written agreement for child 

support, and if the agreement is in the child’s best interest, the court shall render an order in 

accordance with the agreement. See Tex. Fam. Code Ann. § 154.124(a)–(b). Paragraph (c) 

currently provides, “Terms of the 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.” Id. § 154.124(c). The version of the statute applicable to the 

Bartletts’ agreed decree, however, read as follows: “Terms of the agreement in the order may be 

enforced by all remedies available for enforcement of a judgment, including contempt, but are 

not enforceable as contract terms unless provided by the agreement.” Act of May 20, 2003, 

78th Leg., R.S., ch. 480, § 1, 2003 Tex. Gen. Laws 1747, 1747 (emphasis added).

5

 
apply to the mother’s claim for post-majority expenses (such as college expenses). 

See id. at *1, *4.

William relies heavily on the Texas Supreme Court’s decisions in Elfeldt

and Bruni. However, the court in those cases applied Section 154.124(c)’s 

predecessor statute to post-majority payments that were continuations of 

preexisting child support obligations. See Bruni v. Bruni, 924 S.W.2d 366, 367 

(Tex. 1996) (applying predecessor statute when the parties entered into an 

agreement for child support to continue until each child reached the age of twentyone; agreement itself was enforceable as a contract); Elfeldt v. Elfeldt, 730 S.W.2d 

657, 658 (Tex. 1987) (applying predecessor statute to an “agreed child support 

modification order,” which continued the father’s periodic child support payments 

until the children completed four years of college; agreed order was not 

enforceable as a contract). Those types of orders for continued support are 

different from the college-expense provision here, which was not included in the 

“child support” part of the decree. William’s periodic child support payments

terminate under separate and distinct terms, whereas the college-expense provision 

was an independent contractual promise included as part of the “Division of 

Marital Estate.”

William also relies on an Amarillo Court of Appeals decision that involved a 

materially different decree. See Huffines v. McMahill, No. 07-10-00029-CV, 2010 

WL 2836980 (Tex. App.—Amarillo July 20, 2010, no pet.) (mem. op.). Under the 

agreed decree’s “Support” provision, the trial court ordered that “neither party is to 

pay child support,” but the decree directed the father to provide health insurance

and sums for clothing, sports activity fees, school fees, future vehicle needs, and 

half of the child’s unreimbursed medical expenses and college tuition. See id. at 

*1. The father later refused to pay for half of the child’s college tuition, and the 

6
mother sued for breach of contract. Id. Of key importance to the Amarillo Court’s 

conclusion that the college-expense provision was child support, the provision was 

found in the “support” section of the decree and various expenses were listed in 

lieu of periodic payments of support. See id. at *2. Unlike Huffines, the Bartletts’ 

decree included a separate section for child support that required William to make 

periodic payments, and the college-expense provision was part of the decree’s 

section regarding division of the marital estate.

Finally, William argues for the first time in his reply brief on appeal that 

Lori’s filing of a post-judgment petition for enforcement was a judicial admission 

that she sought collection of a child support obligation. William waived this 

argument by his failure to object to the introduction of contrary evidence at trial. 

See, e.g., Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983) 

(“The party relying on his opponent’s pleadings as judicial admissions of fact, 

however, must protect his record by objecting to the introduction of evidence 

contrary to that admission of fact and by objecting to the submission of any issue 

bearing on the fact admitted.”); Lentz Eng’g, L.C. v. Brown, No. 14-10-00610-CV, 

2011 WL 4449655, at *2 (Tex. App.—Houston [14th Dist.] Sept. 27, 2011, no 

pet.) (mem. op.) (party waived judicial admission argument by failing to object to 

the admission of evidence contrary to the alleged judicial admission). He also 

waived the issue by failing raise it in his opening brief on appeal. See Priddy v. 

Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, pet. 

denied) (arguments raised for first time in reply brief are waived); see also 

Cameron Cnty. v. Velasquez, 668 S.W.2d 776, 784 (Tex. App.—Corpus Christi 

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1984, writ ref’d n.r.e.) (argument about judicial admission raised for first time in 

motion for rehearing was waived).4

In sum, the trial court correctly concluded that the college-expense provision 

in this case is not for child support, and therefore, the provision is enforceable by 

contract regardless of Section 154.124(c) of the Family Code.

B. Not a Void Order

In his first issue, William contends the trial court abused its discretion by 

enforcing a “void order” for support of a non-disabled child who was over eighteen 

years old and had graduated from high school. William contends that the order or 

agreement in this case violates the current version of Section 154.124(c), which 

prohibits the enforcement of child support by contract. See Tex. Fam. Code Ann. 

§ 154.124(c). As such, William argues the contract is void. See, e.g., In re 

Prudential Ins. Co. of Am., 148 S.W.3d 124, 129–30 (Tex. 2004) (“As a rule, 

parties have the right to contract as they see fit as long as their agreement does not 

violate the law or public policy.”).

We held above that the college-expense provision is not an agreement for 

child support. Accordingly, Section 154.124(c) is inapplicable.5

William’s first issue is overruled.

4 Of course, Lori’s post-judgment petition for enforcement was not a live pleading at the 

time of trial in this breach of contract action. William has not cited any authority, and this court 

has found none, to support the notion that a party can judicially admit facts in a post-judgment 

pleading (seeking enforcement of a prior final judgment) that would operate to undermine the 

trial court’s prior judgment.

5 Further, even if the college-expense provision was one for child support, the 2003 

amendment included a savings clause that made the amendment prospective only. See Act of 

May 20, 2003, 78th Leg., R.S., ch. 480, § 2, 2003 Tex. Gen. Laws 1747, 1747. The prior version 

of the statute, applicable to the Bartletts’ agreed decree, allowed child support agreements to be 

enforceable by contract. See id. § 1; Bruni, 924 S.W.2d at 367–68. 

8

 
C. Elfeldt/Bruni Test Not Applicable

In his second issue, William contends the trial court abused its discretion by 

enforcing the agreed decree as a contractual agreement because it “fails the 

Elfeldt/Bruni test.” When there is an agreed order or judgment providing for child 

support and no separate written agreement between the parties, as here, then the 

version of Section 154.124(c) applicable to the Bartletts6 required “that the trial 

court’s order provide for enforceability.” Bruni, 924 S.W.2d at 367. Elfeldt held 

that the statute required the order or decree to “expressly provide . . . that its terms 

are enforceable as contract terms.” Elfeldt, 730 S.W.2d at 657.

However, as explained above, the Bartletts’ college-expense provision is not 

an agreement for child support. Thus, we do not apply the Elfeldt/Bruni test or 

Section 154.124(c).

William’s second issue is overruled.

D. Section 154.124(c) Not Applicable 

In his third issue, William contends the trial court abused its discretion by 

enforcing the decree as a contract because enforcement is precluded by the current 

version of Section 154.124(c), which states that child support is not enforceable by 

contract. However, as explained above, the Bartletts’ college-expense provision is 

not an agreement for child support. Thus, we do not apply Section 154.124(c).7

 

William’s third issue is overruled.

6 See supra note 3.

7 See also supra note 5.

9

 
E. Health Insurance and Uninsured Health Care Expenses Not Child 

Support

In his fifth issue, William contends the trial court lacked statutory authority 

to order him to pay for health insurance coverage and uninsured health care 

expenses in connection with the “Education Beyond High School” provision 

because, in general, “medical support” is considered “child support” under the 

Family Code. See Tex. Fam. Code Ann. § 154.183(a)(2). However, as explained 

above, the Bartletts’ college-expense provision is not an agreement for child 

support.

Further, even if health insurance and uninsured health care expenses were

child support as a matter of law, we note that Lori did not recover any damages for 

William’s failure to pay health insurance or uninsured health care expenses. Thus, 

the trial court’s conclusion that these expenses were not child support did not 

probably cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a) 

(no judgment may be reversed on appeal on the ground that the trial court made an 

error of law unless the court of appeals concludes that the error probably caused 

the rendition of an improper judgment). 

William’s fifth issue is overruled.

III. FIRST MATERIAL BREACH

In his fourth issue, William contends the trial court abused its discretion by 

failing to find that a material breach of the contract occurred when the adult son 

failed to maintain a cumulative “C” GPA. Accordingly, William contends that he 

is “excused and discharged from further performance” under the contract: “when 

the adult son’s GPA dropped below a ‘C’ average, the remaining terms of the 

contract were not subject to enforcement because it constituted a material breach.”

10
Lori contends appellant waived this issue by not obtaining or requesting a 

finding on the issue. We agree. “[A] party asserting affirmative defenses in trial 

before the court must request findings in support of such a defense in order to 

avoid waiver on appeal.” See Pinnacle Homes Inc., v. R.C.L. Offshore Eng’g Co., 

640 S.W.2d 629, 630 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.). 

“Where the trial court files findings which do not establish any element of the 

grounds of defense, the party relying upon that defense must file a request for 

additional findings such as to avoid waiver of that defense on appeal.” (citation 

omitted)). Here, the trial court specifically rejected three of William’s affirmative 

defenses asserted in his written answer. The trial court did not address “material 

breach,” as William did not plead this affirmative defense.

8 Although the trial 

court found in its order (signed before its findings of fact and conclusions of law) 

that the son’s GPA “for his freshman year was at least a ‘C’ average,” the trial 

court never found that the son did or did not breach the contract. William made no 

request for such a finding but rather alluded to the son’s alleged breach in a motion 

for new trial.9

8 See Mustang Pipeline Co. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 197 (Tex. 

2004) (material breach is an affirmative defense). Unless tried by consent, “the contention that a 

party to a contract is excused from performance because of a prior material breach by the other 

contracting party is an affirmative defense that must be affirmatively pleaded or it is waived.” 

City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 746 (Tex. App.—Fort Worth 

2008, pet. dism’d); see also Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 280–81 (Tex. 

App.—Houston [14th Dist.] 1999, pet. denied) (“Where an affirmative defense is not pleaded or 

tried by consent, it is waived”; holding that a disclaimer defense was not tried by consent even 

though the trial court expressly found in its conclusions that the disclaimer was conspicuous and 

evidence of the disclaimer was introduced without objection). 

9 See Monk v. Westgate Homeowners’ Ass’n, Inc., No. 14-07-00886-CV, 2009 WL 

2998985, at *3–4 (Tex. App.—Houston [14th Dist.] Aug. 11, 2009, no pet.) (mem. op.) (holding 

that an affirmative defense cannot be raised for the first time in a motion for new trial and is 

waived when no findings are obtained).

11

 
Lori also contends that even if the son failed to maintain a “C” GPA and 

“this constitutes a breach of the contract, it was not a material breach.” Assuming 

for argument’s sake that the trial court’s finding about the son’s GPA related to an 

affirmative defense of first material breach, that the son’s failure to maintain a “C” 

GPA constituted a breach of contract, and that William did not waive this defense, 

we hold that the trial court could have reasonably found that any breach was not 

material as to the expenses that the court awarded to Lori. When a trial court 

makes a finding on at least one element of a defense, “any omitted findings will be 

deemed to support the judgment if evidence exists to support such findings.” 

Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985) (citing Tex. R. Civ. P. 299). 

“Whether a party’s breach of contract is so material as to render the contract 

unenforceable is a question of fact to be determined by the trier of fact.” Levine v. 

Steve Sharn Custom Homes, Inc., 448 S.W.3d 637, 654 (Tex. App.—Houston [1st 

Dist.] 2014, pet. filed) (citing Henry v. Masson, 333 S.W.3d 825, 835 (Tex. App.—

Houston [1st Dist.] 2010, no pet.)). In determining whether the son’s breach was 

material and whether William’s obligations should be discharged, we look to the 

following circumstances:

(1) the likelihood that the son will cure his failure to perform, taking into 

account all of the circumstances;

(2) the extent to which the behavior of the son comports with standards of 

good faith and fair dealing;

(3) the extent to which the son will suffer forfeiture; 

(4) the extent to which William will be deprived of the benefit which he 

reasonably expected;

(5) the extent to which William can be adequately compensated for the 

part of that benefit of which he will be deprived;

(6) the extent to which it reasonably appears to William that delay may 

prevent or hinder him in making reasonable substitute arrangements;

and

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(7) the extent to which the agreement provides for performance without 

delay, but a material failure to perform or offer to perform on a stated 

day does not of itself discharge William’s remaining duties unless the 

circumstances, including the language of the agreement, indicate that 

performance or an offer to perform by that day is important.

See Mustang Pipeline Co. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 197 (Tex. 

2004) (citing RESTATEMENT (SECOND) OF CONTRACTS §§ 241, 242 (1981)).

In view of these factors, the record supports the trial court’s deemed finding 

that any breach by the son was not material and did not excuse William’s 

obligation to pay for expenses incurred before the breach. First, as the trial court 

expressly found, the son brought his GPA above a “C” average after the Summer 

2013 semester. Thus, the son actually cured any failure to perform that occurred 

by his having a GPA below a “C” after the Spring 2013 semester. The trial court 

could have concluded that the son’s behavior comported with standards of good 

faith and fair dealing, as he testified his grades dipped below a “C” average 

because his attendance suffered after surgery on his knee; he also was a football 

player for the university. Excusing William’s performance as to all semesters 

(including the Fall 2012 semester for which the son’s GPA was above a “C”) 

would cause the son significant forfeiture. William was not deprived of the benefit 

he expected because his son remained a full time student toward a bachelor’s 

degree at a university and maintained a GPA above a “C” by the time of trial. And 

there was evidence that William’s refusal to fulfill his obligations under the 

agreement had nothing to do with the son’s failure to maintain a “C” GPA for the 

Spring 2013 semester.

10 There is no evidence that the son’s one-semester lapse 

10 The son testified that William did not want to pay for all four years. William testified, 

as well, about his intentions: “The conversation I’ve had with my kids is that I would help as 

much as I can and we want to try to pay for two years and we want your mother to pay for a year 

and it’s my philosophy that they should have a one-year expense.” William did not testify that 

he was deprived of any benefit by his son’s breach. 

13

 
prevented William from making “substitute arrangements.” Finally, the agreement 

itself does not require performance on a semester-by-semester basis, nor does it 

call for the forfeiture of obligations previously owed to the son (i.e., Fall 2012 

expenses) for a breach occurring in a later semester. The agreement itself does not 

explicitly require the son to reimburse William for expenses incurred for a prior 

semester if the son ultimately does not obtain a “C” average in a later semester.11

Accordingly, even if William had not waived this affirmative defense, the 

record supports the trial court’s judgment awarding Lori damages in the amount of 

her expenses incurred before the son’s alleged breach. William’s fourth issue is 

overruled.

IV. CONCLUSION

Having overruled all of William’s issues, we affirm the trial court’s 

judgment.

/s/ Sharon McCally

Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally. (Frost, C.J., 

concurring).

11 William also acknowledged during his direct testimony that the clause regarding a “C”

GPA does not provide guidance about “whether or not the contract is, at this point, null and 

void” due to the son’s breach.

14