Opinion issued April 18, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00784-CV

———————————

JUDITH LYNN SMITH F/K/A JUDITH LYNN GOODRUM, Appellant

V.

DAVID EUGENE GOODRUM, SR., Appellee

On Appeal from the 312th District Court

Harris County, Texas

Trial Court Case No. 1992-46409

MEMORANDUM OPINION

The trial court denied a motion to confirm child-support arrearage. Judith 

Lynn Smith appealed. In five issues, Judith argues the trial court erred by denying 

the motion because (1) it misconstrued the child-support provision of the divorce 
2

decree, (2) David Eugene Goodrum, Sr. is judicially estopped from arguing his 

child-support obligations ended before his youngest child turned 18, and (3) she 

was entitled to attorneys’ fees in seeking the confirmation of arrearage.

We affirm. 

Background

Judith and David were divorced in 1993 with two children from the 

marriage. The divorce decree was rendered by agreement of the parties. The 

divorce decree required David to make child-support payments twice a month

until the date of the earliest occurrence of one of the following events:

a. any child reaches the age of eighteen years, provided that, if the 

child is fully enrolled in an accredited primary or secondary 

school in a program leading toward a high school diploma, the 

periodic child-support payments shall continue to be due and 

paid until the end of the school year in which the child 

graduates;

b. any child marries;

c. any child dies;

d. any child’s disabilities are otherwise removed for general 

purposes;

e. any child is otherwise emancipated; or

f. further order modifying this child support.

The record establishes that the older child turned 18 in 2003. The younger 

child turned 18 in 2008. There is no indication in the record of when either child 

graduated high school.
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In 1995, the trial court determined that David was in arrears on his childsupport payment. By agreement of the parties, the court ordered David to make 

certain payments on the arrearage. The payments were in addition to his regular 

child-support payments and did not otherwise modify his obligations to pay child 

support under the divorce decree.

In April 2004, the trial court again determined that David was in arrears. 

The order states that David did not appear in person or through counsel and that the 

order was entered as a default order. The last page of the order shows that 

someone signed David’s name in a space provided. The order does not state any 

legal effect of the signature. The order obligated David to pay $2,520.98 in arrears 

at $25 per month until the arrearage was paid in full or until “the termination of 

current support for any child the subject of this suit.” After that, the order 

obligated David to pay $250 per month until the arrearage was paid in full or until 

“the termination of current child support for any child the subject of this suit.” 

Finally, the order required David, if he had not “paid the judgment in full by the 

date his current child support obligation ends,” to pay the remainder of the 

arrearage in monthly installments of $475.

The record reflects that David did not make regular payments. Instead, from 

April 2004 to June 2008, David made payments at various times and at various 

amounts, though most payments were in the amount of $450, $900, or $950. On 
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July 29, 2010, the Attorney General’s Child Support Division filed another motion 

to confirm child-support arrearage as well as to suspend David’s driver’s license. 

The Attorney General asked the court to render an order declaring a total arrearage 

of $11,458.25.

David answered the motion, arguing that his obligation to pay child support 

terminated in 2003 and, accordingly, no arrearage existed. Following a hearing in 

May 2011, the trial court agreed with David and denied the motion. On June 30, 

2011, the trial court filed findings of fact and conclusions of law. Judith requested 

further findings, but the trial court did not file any further findings.

Construction of the Child-Support Provision

In her first issue, Judith argues the trial court erred in its construction of the 

child-support provision in the original divorce decree. In her second issue, Judith 

argues the trial court’s construction of the child-support provision is contrary to 

public policy. In her third issue, Judith argues the trial court’s construction of the 

child-support provision is contrary to the parties’ intent.

A. Standard of Review & Applicable Law

Agreed judgments, such as divorce decrees, are interpreted in accordance 

with contract law. McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984). 

We review whether a divorce decree is ambiguous as a question of law. Shanks v. 

Treadway, 110 S.W.3d 444, 447 (Tex. 2003). If the words used in the written 
5

instrument can be given a certain or definite legal meaning or interpretation, then it 

is not ambiguous and the court will construe the contract as a matter of law. Coker 

v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Chapman v. Abbot, 251 S.W.3d 612,

616 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Courts must enforce an 

unambiguous contract as written and may not consider extrinsic evidence for the 

purpose of creating an ambiguity or giving the contract a meaning different from 

that which its language imports. David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 

450 (Tex. 2008).

B. Analysis

The divorce decree required David to make child-support payments twice a 

month

until the date of the earliest occurrence of one of the following events:

a. any child reaches the age of eighteen years, provided that, if the 

child is fully enrolled in an accredited primary or secondary 

school in a program leading toward a high school diploma, the 

periodic child-support payments shall continue to be due and 

paid until the end of the school year in which the child 

graduates;

b. any child marries;

c. any child dies;

d. any child’s disabilities are otherwise removed for general 

purposes;

e. any child is otherwise emancipated; or

f. further order modifying this child support.
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The record establishes that the older child turned 18 in 2003. The younger 

child turned 18 in 2008. There is no indication in the record of when either child 

graduated high school.

Judith claims that the use of the term “any child” in the quoted language 

creates an ambiguity. Judith does not make any argument showing an ambiguity in 

the divorce decree, however. Instead, she argues that the only reasonable 

interpretation of the decree required interpreting “any child” to mean “the youngest 

child.” In support of this argument, Judith asserts that the trial court’s 

interpretation of “any child” is unreasonable and that her interpretation is more inline with public policy.

Judith argues that the trial court’s interpretation of “any child” is 

unreasonable because, “utilizing David’s literalness argument to its full extent,” 

“any child” could mean any child anywhere. We agree with Judith that this 

proposed interpretation is unreasonable. But it is not an interpretation that any 

party is advocating, and it is not the only available interpretation.

We interpret the divorce decree in accordance with contract law. 

McGoodwin, 671 S.W.2d at 882. In interpreting a contract, “our primary concern 

is to ascertain the true intent of the parties as expressed within the four corners of 

the severance agreements.” Creel v. Hous. Indus., Inc., 124 S.W.3d 742, 749 (Tex. 

App.—Houston [1st Dist.] 2003, no pet.). The contract only identifies two 
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children. The provision of child support only concerns the support of two children. 

Because the decree does not concern any other children, it would be unreasonable 

to look beyond the age of the children identified in the divorce decree to determine 

when the obligation to pay child support terminated.

“If a contract term is not defined, it will be given its plain, ordinary, and 

generally accepted meaning.” Id. The decree does not define the term “any child.” 

“Any” is “used to refer to one or some of a thing or number of things, no matter

how much or many.” THE NEW OXFORD AMERICAN DICTIONARY 70 (2d ed. 2005). 

Accordingly, we interpret “any child,” as used in this divorce decree, to mean “one 

or more of the two children identified in the divorce decree.” One of David and 

Judith’s children turned 18 in 2003. Accordingly, David’s obligation to pay child 

support terminated in 2003, when his older child turned 18.

Judith’s argument is unreasonable because it asks this court to assign a 

meaning to “any” that is completely different from any commonly accepted 

meaning. Judith asks this Court to interpret “any child” to mean “only the last 

child.” Judith argues that this interpretation is more in-line with the public policy 

concern that judgments affecting the parent-child relationship reflect the best 

interest of the child. Judith does not cite, however, any law providing that public 

policy concerns can create an ambiguity in an otherwise unambiguous contract, 

and we find none. Cf. Woolaver v. Texaco, Inc., 594 S.W.2d 224, 225 (Tex. Civ. 
8

App.—Fort Worth 1980, no writ) (holding rule of construction based on public 

policy applies only to ambiguous deeds; it is not used to determine if ambiguity 

exists).

Similarly, Judith asks this Court to reverse on public policy grounds even if 

we affirm the trial court’s interpretation of the divorce decree. In essence, Judith’s 

argument is a collateral attack on the divorce decree. “A collateral attack is an 

attempt to avoid the binding force of a judgment in a proceeding not instituted for 

the purpose of correcting, modifying, or vacating the judgment, but in order to 

obtain some specific relief which the judgment currently stands as a bar against.” 

Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). Only a void judgment 

may be collaterally attacked. Id. “A judgment is void only when it is apparent that 

the court rendering judgment ‘had no jurisdiction of the parties or property, no 

jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, 

or no capacity to act.” Id. (quoting Browning v. Placke, 698 S.W.2d 362, 363 

(Tex. 1985)).

There is no dispute that a trial court can decline to render judgment on an 

agreement between the parties that the trial court determines to not be in the best 

interest of the child. See, e.g., TEX. FAM. CODE ANN. § 154.124(b) (Vernon 2008) 

(“If the court finds that [an agreement concerning child support] is in the child’s 

best interest, the court shall render an order in accordance with the agreement”). In 
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contrast, we find no authority for the proposition that a judgment not in the best 

interest of the child deprives the trial court of jurisdiction or capacity to render the 

judgment.1

Furthermore, Judith does not explain how setting aside the original divorce 

decree would enable her to obtain child-support payments that would have been 

owed between 2003 and 2008. See TEX. FAM. CODE ANN. § 156.401(b) (Vernon 

Supp. 2012) (“A support order may be modified with regard to the amount of 

support ordered only as to obligations accruing after the earlier of (1) the date of 

service of citation; or (2) an appearance in the suit to modify.”); In re H.J.W., 302 

S.W.3d 511, 514 (Tex. App.—Dallas 2009, no pet.) (recognizing “the family code 

generally prohibits the retroactive modification of child support”).

Finally, Judith argues that the trial court’s interpretation of the contract is 

contrary to the parties’ original intent. As we have held, we ascertain intent from 

the four corners of the document. Creel, 124 S.W.3d at 749. Parol evidence may 

not be introduced to create an ambiguity or to alter the intent of the parties as 

expressed in the instrument. David J. Sacks, 266 S.W.3d at 450.

We overrule Judith’s first, second, and third issues.

 1 To the degree that Judith is arguing a judgment not in the best interest of the child 

is voidable, such a claim would have to be raised on direct appeal. Travelers Ins. 

Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010).
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Judicial Estoppel

In her fourth issue, Judith argues that David is judicially estopped from 

terminating child-support payments before the younger child turned 18 because he 

took a conflicting position in a judicial proceeding.

A. Standard of Review

In an appeal from a bench trial, findings of fact have the same weight as a 

jury’s verdict on special issues. Lee v. Lee, 981 S.W.2d 903, 905 (Tex. App.—

Houston [1st Dist.] 1998, pet. denied). We review the legal and factual sufficiency 

of the evidence supporting a trial court’s findings of fact by the same standards that 

we apply to reviewing the legal or factual sufficiency of the evidence supporting 

jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). 

When she attacks the legal sufficiency of an adverse finding on an issue on 

which she had the burden of proof at trial, a party must demonstrate on appeal that 

the evidence establishes, as a matter of law, all vital facts in support of the issue. 

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (citing Sterner v. 

Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). In reviewing a “matter of 

law” challenge, we must first examine the record for evidence that supports the 

finding, while ignoring all evidence to the contrary. Id. If there is no evidence 

supporting the finding, we will then examine the entire record to determine if the 

contrary position is established as a matter of law. Id. We will sustain this 
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challenge only if the contrary proposition is conclusively established. Id. (citing 

Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)).

In our review of factual sufficiency of the evidence, we must consider and 

weigh all of the evidence. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 

1986). We will set aside a verdict only if the evidence is so weak or if the finding 

is so against the great weight and preponderance of the evidence that it is clearly 

wrong and unjust. Id. 

B. Analysis

The elements of equitable estoppel based on a party taking inconsistent 

positions in judicial proceedings are

(1) a party takes clearly inconsistent positions in the same or separate 

proceedings; (2) the position first asserted was successfully 

maintained or upheld; (3) the other party relied on the position first 

asserted; (4) adoption of the later position would result in injury or 

prejudice to the adverse party; and (5) where more than one action is 

involved, there is an identity of parties.

Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 639 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied) (citing In re Estate of Loveless, 64 S.W.3d 

564, 577–78 (Tex. App.—Texarkana 2001, no pet.)). Judith argues that estoppel 

applies because David “took an inconsistent position by agreeing to” the April 

2004 order of arrearage. We hold that there is insufficient evidence to establish 

that David agreed to the April 2004 order.
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The order expressly states that David did not appear in person or through 

counsel and that the order was entered as a default order. The last page of the 

order shows that someone signed David’s name in a space provided. The order 

does not state that the parties’ signatures would constitute an agreement as to form, 

as to substance, or as to substance and form. Nor does it in any other way state any 

legal effect of the signature.2

 Accordingly, Judith has failed to establish, as a 

matter of law or by the great weight and preponderance of the evidence, that David 

agreed to the order. We do not need to consider, then, what effect agreeing to the 

2004 order would have had.

In making her estoppel argument, Judith relies on In re T.G., No. 03-02-

00090-CV, 2002 WL 31769031 (Tex. App.—Austin Dec. 12, 2002, no pet.) (not 

designated for publication). That case concerns nearly identical language for 

child-support payments in a divorce decree. Id. at *1. The older child graduated 

high school in May 2001. Id. The father missed payments, and the trial court 

entered an order in 1994 requiring him to make set monthly payments until 

February 2004, with a portion of those payments assigned to arrears and the 

remainder assigned to child-support obligations. Id. Another proceeding was 

commenced to confirm arrearages in 2001. The trial court confirmed the 

arrearages, and the father appealed. Id. 

 2 David testified at the hearing, but was never asked about any involvement he may 

have had with the 2004 order.
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On appeal, the father argued that the 1994 arrearage order—upon which the 

2001 order relied—was improper because his obligation to pay child support 

terminated in 2001, pursuant to the divorce decree. Id. at *5. The Austin Court of 

Appeals noted that the father did not appeal the 1994 order. Id. Accordingly, it 

was final and enforceable. Id. “The child-support debt confirmed is supported by 

the obligations imposed by the 1994 orders, regardless of any deficiencies in the 

[divorce] decree.” Id. at *6. As a result, the court held that the 2004 order was 

enforceable. Id. 

Assuming without deciding that the same logic applies to the 2004 order in 

this case, it is undisputed that, at the time of the 2011 hearing, David had paid all 

of the money in arrears. It is also undisputed that neither of the arrearage orders 

modified the child-support obligations in the divorce decree. Instead, they both 

imposed independent obligations to pay arrearage in addition to the existing childsupport obligation. Accordingly, the orders have no bearing on whether David had

an obligation to pay child support after 2003, the year the older child turned 18.

Judith also argues that, by continuing to make payments after his childsupport obligation ended, David was judicially estopped from denying any further 

obligation. Judith provides no authority for the proposition that making childsupport payments that were not court ordered constitutes taking a position in a 
14

judicial proceeding, and we find none. Nor is there any support for the proposition

that, by making the payments, his “position” was maintained or upheld.

We hold there is no evidence to establish as a matter of law that David is 

judicially estopped from arguing his child-support obligations terminated in 2003. 

We further hold that the trial court’s determination that the child-support obligation 

terminated in 2003 is not against the great weight and preponderance of the 

evidence. We overrule Judith’s fourth issue.3

Conclusion

We affirm the trial court’s denial of the motion to confirm child-support

arrearage.

Laura Carter Higley

Justice 

Panel consists of Chief Justice Radack and Justices Higley and Brown.

 3 Judith’s fifth issue, concerning attorneys’ fees, is contingent on our sustaining one 

or more of her other issues. Because we have not sustained those issues, we do 

not reach the fifth issue. See TEX. R. APP. P. 47.1.