COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00064-CV

JERRY DWAYNE LEE, JR. APPELLANT

V.

DANELLE CHARLENE LEE APPELLEE

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FROM THE 97TH DISTRICT COURT OF CLAY COUNTY

TRIAL COURT NO. 2012-0063C-CV

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MEMORANDUM OPINION1

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Appellant Jerry Dwayne Lee, Jr. appeals from the trial court’s summary 

judgment for Appellee Danelle Charlene Lee. Because we hold that the agreed 

spousal maintenance in the parties’ agreed decree is not court-ordered spousal 

 1

See Tex. R. App. P. 47.4.
2

maintenance under chapter 8 of the family code, we affirm the trial court’s 

judgment.

On May 10, 2012, Jerry and Danelle’s divorce hearing occurred. Jerry 

represented himself, was present, and “agreed to the terms of th[e] [d]ivorce 

[d]ecree.” Danelle, who also apparently represented herself, was not present but 

had signed a waiver of service and had already signed the decree, “agreeing to 

[its] terms.” No court reporter recorded the hearing because Jerry, Danelle, and 

the trial judge all “agreed to not make a record.” The agreed decree contains the 

following provision:

11. Spousal Maintenance

The parties request that this court award maintenance to 

[Danelle] in the amount of $2000.00 per month for 60 months for 

the following reasons:

Support and care.

In addition, [Danelle] lacks the property and earning ability in the 

labor market to adequately provide for . . . her own reasonable 

needs.

THEREFORE, THE COURT ORDERS that Petitioner pay to 

Respondent for spousal maintenance the sum of $2000.00 per 

month. Maintenance shall be paid monthly for 60 months. The first 

maintenance payment shall be due on Thursday, May 10, 2012. 

The obligation to pay future maintenance is terminated upon 

the death of either party or the remarriage of the party receiving 

maintenance. All payments shall be made to any address 

designated in writing by the recipient. [Emphasis added.]
3

On the last page of the eight-page decree, after the trial judge’s signature, 

the parties affixed their signatures to indicate their agreement “to the terms of this 

Decree.”

Less than fifteen months later, Jerry filed a “Motion to Terminate 

Maintenance Obligation” under section 8.056 of the family code because Danelle 

was cohabitating “with another person with whom [she] ha[d] a dating or romantic 

relationship in a permanent place of abode on a continuing basis.” Danelle, who 

did not contest that she was cohabitating with a romantic partner in a permanent 

place of abode on a continuing basis,2 filed a motion for summary judgment, 

contending that she

[wa]s entitled to summary judgment as a matter of law because the 

divorce decree is a contractual agreement to spousal maintenance 

and not Court Ordered Spousal Maintenance under Chapter 8 of the 

Family Code. In the Divorce Decree, that is agreed to by the parties, 

the parties request the court to award maintenance in the amount 

set forth in the decree. The Decree is a confirmation of the parties’

agreement and is contractual, as a debt, in nature. In Kee v. Kee, 

S.W.3d 812, 814[] (Dallas 2010), the Court stated that “Chapter 8 

does not apply to an alimony provision in a divorce decree that 

restates a parties’ contractual agreement for alimony.” The decree 

only provides two ways in which the obligation to pay support 

terminate[s]:

a. The death of either party; or

b. The remarriage of the party receiving maintenance.

 2

See Tex. R. App. P. 38.1(g).
4

The trial court granted Danelle’s motion for summary judgment, from which Jerry 

appeals.

In three issues, Jerry contends that the agreed spousal maintenance is 

nevertheless spousal maintenance governed by chapter 8 of the family code, that 

the agreed spousal maintenance is not contractual alimony, and that his 

pleadings raise a genuine issue of material fact by alleging Danelle’s cohabitation 

with another man.

In a summary judgment case, the issue on appeal is whether the movant 

met the summary judgment burden by establishing that no genuine issue of 

material fact exists and that the movant is entitled to judgment as a matter of 

law.3

 We review a summary judgment de novo.4 We consider the evidence 

presented in the light most favorable to the nonmovant, crediting evidence 

favorable to the nonmovant if reasonable jurors could, and disregarding evidence 

contrary to the nonmovant unless reasonable jurors could not.5

 We indulge 

every reasonable inference and resolve any doubts in the nonmovant’s favor.6

 A 

 3

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. 

Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

4

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

5

Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848.

6

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
5

defendant who conclusively negates at least one essential element of a cause of 

action is entitled to summary judgment on that claim.7

Although the agreed maintenance award has some common elements with 

court-ordered spousal maintenance under chapter 8 of the family code, in that (1) 

the award’s duration and amount do not exceed the stated, statutory maximums 

for court-ordered maintenance,

8 (2) the decree provides that the maintenance 

awarded is for Danelle’s “[s]upport and care,” and (3) the decree also provides 

that she “lacks the property and earning ability in the labor market to adequately 

provide for . . . her own reasonable needs,”

9 there is no indication in the record 

that the trial court considered all of the statutory factors in determining 

maintenance.

10 The record likewise does not reveal any evidence that Danelle

(who was absent from the hearing) overcame the presumption against 

maintenance,11 or, by awarding maintenance for sixty months as the parties 

requested, that the trial court followed the statutory requirement to “limit the 

 7

Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see

Tex. R. Civ. P. 166a(b), (c).

8

See Tex. Fam. Code Ann. §§ 8.054(a)(1), .055(a)(1) (West Supp. 2014).

9

See id. §§ .051(2)(B), .052(1), (4), (8); see also § 8.001(1) (West 2006).

10See id. § 8.052 (“A court that determines that a spouse is eligible to 

receive maintenance under this chapter shall determine the nature, amount, 

duration, and manner of periodic payments by considering all relevant 

factors . . . .”).

11See id. §8.053.
6

duration of a maintenance order to the shortest reasonable period that allows the 

spouse seeking maintenance to earn sufficient income to provide for the 

spouse’s minimum reasonable needs[.]”

12

Further, despite Jerry’s attempt to distinguish contractual alimony provided 

in an agreement incident to divorce or partition and exchange agreement from 

the spousal maintenance agreement he entered into with Danelle as part of the 

agreed decree of divorce, that the agreed spousal support is part of the decree 

and not incident to it is not relevant to our treatment of the decree as a binding 

contract. “An agreed divorce decree, such as the one in this case, is a contract 

subject to the usual rules of contract construction.”

13 As we have previously 

explained,

Our primary concern when interpreting an agreement is to ascertain 

and give effect to the intent of the parties as it is expressed in the 

agreement. We examine the writing as a whole in an effort to 

harmonize and give effect to all the provisions so that none will be 

rendered meaningless. If the agreement can be given a certain or 

definite legal meaning or interpretation, then it is not ambiguous, and 

the court will construe it as a matter of law.14

The agreed decree provides two ways to terminate the agreed spousal 

maintenance obligation: death and remarriage. It does not provide that 

 12Id. § 8.054.

13In re W.L.W., 370 S.W.3d 799, 804 (Tex. App.—Fort Worth 2012, orig. 

proceeding).

14Chafin v. Isbell, No. 02-10-00007-CV, 2011 WL 946653, at *4 (Tex. 

App.—Fort Worth Mar. 17, 2011, no pet.) (mem. op. on reh’g) (citations omitted).
7

Danelle’s cohabitation with another could terminate Jerry’s obligation. The 

decree is not ambiguous; we therefore hold that the trial court correctly granted 

Danelle’s motion for summary judgment as a matter of law. Accordingly, we 

overrule Jerry’s three issues and affirm the trial court’s judgment.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DELIVERED: February 12, 2015