Affirmed as Modified in Part , Reversed in Part, and Remanded; and

Memorandum Opinion filed July 8 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00767

- CV

TIM WILSON SR. , Appellant

V.
FRIEDA WILSON , Appellee
On Appeal from the County C ourt a t Law

Waller County, Texas Trial Court Cause No. 10

- 06

- 20425

MEMORANDUM OPINION In this post

- divorce enforcement action, the trial court awarded appellee Frieda Wilson a money judgment against her ex

- husband, appellant Tim Wilson Sr., for $12,000 in unp aid contractual alimony plus attorney ’ s fees, court cos ts, and interest. In two issues , Tim contends that the tri al court erred by (1) failing to dismiss Frieda ’ s claim under Rule 91 a of the Texas Rul es of Civil Procedure, and2

(2) awarding all or some of the alimony and interest because it was barred by limitations.
We o verrule Tim ’ s first issue and sustain in part his second issue. Accordingly, w e modify the damag es award , reverse the portion of the trial court ’ s judgment awarding prejudgment interest , r emand for recalculation of prejudgment interest , and affirm the remainder of the judgm ent as modified

. I. B ACKGROUND
Freida and Tim divorced in 2012 . The divorce decree recite d that the parties entered into a written agreement as contained in the decree and stipulated that it was enforceable as a contract. Under the heading “ Contractual Alimony , ” the parties agreed for Tim to pay Frieda contractual alimony in the amount of $4,000 per month, payable on the first of each month, beginning on June 1, 2013, thro u gh May 1, 2015 . Payments would be deemed timely made if direct deposited on or before the fifth day following the date that each payment was due.
The c ontractual a limony section of the decree provide d for acceleration of the payments if Fr ieda notified Tim in writing of her intent to i nvoke the provisions of the decree relating to acceleration. If Tim did not cure a default within thirty days of receiving the notice, then at Freida ’ s “ option, the entire remainin g obligation of [Tim] , . . . or any porti o n of the obligation of [ Tim] , at [Freida ’ s] election , shall then be accelerated and become due and payable. ” On March 26, 2019, Fr ieda filed a motion to enforce , quoting from the

c ontractual al imony section of the decree and alleging that Tim violated the decree by failing to make required payments beginning in December 2013. Frieda asked the cou rt to order Tim to pay the amount of past

- due alimony plus interest , court3

costs, and attorney ’ s fees , and to re nder a judgment in her favor for the same. Sh e

a ls o asked the cour t to hold Tim in contempt.
Tim filed an answer and an amended answer , in part stating , “ To the extent that Movan t ’ s Motion to Enforce seeks enforcement of contractual alimony b y contempt, the motion is baseless in law and in fa ct, and fai ls to st ate a c ause of action upon which relief may be granted and should be dismissed. ” He also

a sserted that the motion to enforce was barred by the statut e of limitations. At the hearing on the motion, Tim ’ s counsel explaine d further : But, Your Honor, t his is filed as a motion to enforce ; and it ’s to enforce contractual

—

this is not statutory alimony; this is a contractual alimony provision. That ’s not enforceable by traditional enforcement mechanisms. It ’s a

— it would simply be a suit on a contract. Th at ’s not what we have before the Court today. We filed a moti on to dismiss along with the answer based on the fact that this is not a n appropriate remedy. The court explained that it would “ t reat it as contractual ” and “ treat it as a breach of contract , ” and apply the four

- year statute of limitations

. Fr eida testified at the hearing tha t Tim stopped paying the $4 , 0 00 monthly alimony in December 2013. The court admitted as an exhibit a letter she sent to Tim in January 2014 to notify him of her intent t o invoke the accelerat ion provision of the decree if he failed to cure within thirty days. She testified, however, that after sending the notice of default , she did not take any additional step s to actually accelerate the debt.
The court announced that it w ould award Fr eida the alimony payments due for M arch, April, and May 2015 and that Freida did not accelerate the debt in January 2014 . The court signed a final judgment awarding Freida $1 2,00 0 for the contractual alimony, $2,510.13 in prejudgment intere s t , $3,500 in attorney ’ s fees,4

and $105 in court costs , for a total judgment amount of $18,115.13

. The court did not enforce the contractual alimony by contempt.
II. R ULE 91 A
In his first issue , T im contends that the trial cou rt erred by not dism issing Freida ’ s claim under Rule 91a . Tim contends that contractual alimony cannot be recovered through a motion for enforcement of a divo rce decree

. 1
A. The Rule In relevant part, R ule 91a of the Texas R ules of C ivil Procedure provides ,

“ Except in a case brought under th e Family C ode . . ., a party may move to dismiss a cause of action o n the grounds that it has no basis in law or fact. ” Tex. R. Civ. P. 91a.1. “ A cause of action has no basis in law if the alleg ations, taken as true, together with inferences reasonably d rawn from them, do not entitle the claimant to the relief sought. ” Id. “ A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to w hich it is ad dressed, and must state
sp ecifically the reasons the cause o f action has no basis in law, no basis in fact, or both. ” Tex. R. Civ. P. 91 a.2.

1 The parties have not briefed w hether the denial of a Rule 91a motion is reviewable on appeal after a trial on the merits

. For purposes of this appeal, we assume without deciding that it is

. Se e Koenig v. Blaylock , 497 S.W.3d 595 (Tex. App.

— Austin 2016, pet. denied) ( reviewing denial of Rule 91a motion following trial court ’ s order to parti tion re al propert y purs uant to divorce decree). But see Raider Ranch , L P v. Lugano , Ltd. , 57 9 S.W.3d 1 31, 1 33 (Tex. App.

— Amarillo 2019, no pet.) ( “ We believe [the defendant ’ s] compla int of the trial court ’ s denial of their motion to dismiss [under Rule 91a] was rendered moot whe n the court tried the merits of the [plaintiff ’ s] case and rendered j udgment in thei r favor. ” (citing Benn ett v. P ippin , 74 F.3d 578, 585 (5 th Cir. 1996) ) ); but cf. Isaac v. Burnside , 616 S.W.3d 609, 612 (Tex. App.

— Houston [14th Dist.] 2020, pet. denied) ( denial of motion for summary judgment not reviewable on appeal after a trial on the me rits)

.5

B. No Preservation
As a prerequisite to presenting a complaint for appellate review , a party must make a complaint to the trial court by a timely request, objection, or motion t hat
states the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 3 3.1(a); Garcia v. Alvarez , 367 S.W.3d 784, 788 (Tex. App.

— Houston [14th Dist.] 2012, no pet. ). A party ’ s argumen t on appeal must comport with the complaint in the trial court. Id. Here, Tim ’ s assertion in his answer that the motion for enforcement should have been dismissed did not state that his motion was m ade pursuant to Rule 91a. Nor did Tim refer to Rule 91a a t t he hearing. Thus, Tim did not make any complaint based on Rule 91a to the trial court. Accordingly, Tim did not preserve any error for any complaint about the trial court denying a Rule 91a moti on

. See Garcia , 367 S.W.3d at 788 (complaint that trial c our t could not render a money judgment regarding overpayment of agreed periodic payments in divorce decree was not made to trial c ourt and thus waived).
C. Rule 91a Inapplicable to Enforcement Motion

B y its terms, Rule 91a is not applicable to a case brough t und er the Family Code. Freida ’ s motion for enforcement , which included a requ est for a money judgment and contempt, was brought under the Family C ode. See Tex. Fam. Code § 9.001 ( enforcement gener ally); id. § 9.010 ( authorizing money judgment for failure to make payments of money awarded in the decree ) ; id. § 9.012 ( a uthorizing contempt) ; see also Jenkins v. Jenkins , 991 S.W.2d 440, 445 ( Tex. App.

— Fort Worth 1999, no pet.) (noti ng that contractual alimony could be recovered through a motion to enforce und er the Family Code, which “ allo ws a6

party who does not receive payments of money a warded in a divorce decree to sue the defaulting party for a money judgment in the amount of the unpaid payments ” )

. Thus, the trial court would not have erred by denying a R u le 91a motion on this basis.
D. No Error
Moreover, Tim has not shown any error. His reliance on In re L.R.P. , No. 05

- 14

- 01590

- CV, 2016 WL 514174 (Tex. App.

— Dallas Feb. 9, 2016, no pet.) (mem. op.) , is misplaced . In that case , the court of appeals upheld the t rial court ’ s dismissal of a motion to enforce a co ntractual alimony provisi on because the movant did not request a money judgment and sought enforcement only by unavailable means

— contempt and wage withholding

. See id. at *4

– 5 ; see also Dalton v. Dalton , 5 51 S.W.3d 126, 134 (Tex. 2018) (wage withholding unavailable to enforce contractual alimony ) ; In re Green , 221 S.W.3d 645, 64 7 (Tex. 2007) (contempt unavailable to enforce contractual alimony ). A more analogous case is Woolam v. Tussing , 54 S.W.3d 442 ( T ex . App.

— Corpus Christi 2001, no pet.) , in which th e court of appeals reversed the trial
court ’ s denial of a petition for enforcement of spousal m aintenance

. In the wife ’ s petition, she requested that contrac tual alimony be enf orced by contempt, but she

a ls o requested a money judgment for the missed payme nts , interest , and attorney ’ s fees. See id. at 444. The court of appeals held that, even though the alimony could not be enfo rced by contempt, id. at 450, the wife adequately pleaded a claim for fai l ure to pay contractual alimony

. See id. at 448. T he court reached this conclusion , despite th e wife nev er referring to a “ contract ” or “ breach of contract ” in her petition , because the nature of her complaint was obvious from a review of the pleadings

— s h e alle ged a contractual relations hip and the fai l ur e to make month ly payments

. See id. at 447 , 448 & n.6

.7

In Freida ’ s motion to enforce, she quoted from the “ co ntractual alimony ” section of the d ivorce decree and all eged that T im “ failed to comply ” with t he dec ree by failing to make required payments . Although she requested Tim be held in contempt, she also requested a money judgment for the amount Tim f ailed to
pay as contra ctual alimony plus interest, costs, and attorney ’ s f ees. Thus, her request for enf

orce ment by means of a money judgment had an adequate basis in law

— the allegations, taken as true, together with inferences reasonably drawn from them , wo uld entitle her to relief

. Se e Tex. R. Civ. P. 91a

. 1 ; see also Woolam , 54 S.W.3d at 447

–

4 8.
Tim ’ s first i ssue is overruled.
III. L IMITATIONS
In his second issue , Tim contends that the trial court erred by not applying the four

- year statute of limitations t o (1) the entire debt because the debt was accelerated by Freida ’ s January 2014 letter , or alternative l y (2) t he payment due for the month of Mar ch 2015. The parties agree that the four

- year statute of limitations applies and that when a contract calls for fixed periodic payments, a sep arate cause of action

ac crues and a separate limitations period applies for eac h missed payment

. See Trel ltex, Inc. v. Intecx, L.L.C. , 494 S.W.3d 781, 786

– 87 (Tex. App.

— Houston [14th Dist.] 2016, no pet.). A plaintiff may not recover any p ayment more than four years overdue. See id. at 787. Relying on the Supreme Court of T exas ’ s opi nion in Holy Cros s Church of God in Christ v. Wolf

, 44 S.W.3d 562 (Tex. 2001) , Tim contends that Freida accelerated the deb t so the statute o f limitations began to run for all remaining payments in January 2014

— more than four years before she br o ught th e8

enforcement action. Tim inco rrectly asserts that the statute of limitations accrues

“ when a party provides notice of intent to accelerate. ” Rather, u nder Holy Cross , an act ion may accrue for purposes of limitations if th e plaintiff “ actually ex e rcises its option to accelerate ” a debt. I d. at 566. “ Effective acceleration requires two acts: (1) notice of intent to accelerate, and (2) notice of acceleration. ” Id. This is a question of fact for th e trial court. See id. at 568 (notin g that altho u gh accr ual is a legal question, “ whether a holder has accelerated a note is a fact question ” ). Here, the trial court orally found that Freida did not a ccelerate the debt because “ she said she was going to, but she didn ’ t. ” 2 Freida ’ s testimony and her let t er supp ort the trial court ’ s finding . Although Freida provided notice of an intent to accelerate, she did not actually accelerate the debt. See id. a t 566. However, under the terms of the decree providing for contractual alimony, the payment s were due on the fi rst of each month and deemed timely if made by direct deposit on the sixth of each month. Freida filed her motion to enforce on March 26, 2019 . Thus , the evidence conclusively establishes that the March 2015 payment, wh ich the trial court awarded t o Frei da, is barred by the four

- year statute of limitations, and the trial court abused its discretion to a war d the March 20 15 payment to Freida. See Trel ltex , 494 S.W.3d at 786

– 87 ; see also Woody v. Woody , 429 S.W.3d 792, 797 (Tex. App.

— Houston [14th Di s t.] 20 14, no pet. ) ( noting that although sufficiency of the evidence is not an independent ground of error in a

2 The trial court did not file written findings, but we would infer this findi n g anyway. See Woody v. Woody , 429 S.W.3d 792, 797 (Tex. App.

— Houston [14th Dist.] 2 014, no pet.) (in post

- divorce enf

orcement proceedi ng, noting that co urts of ap peals w ill infer all findings necessary to support the judgment and uphold those findings if supported by sufficient evidence) ; see also Larry F. S mith , Inc. v. The Weber Co. , 110 S.W.3d 611, 61 5 (Tex. A pp.

— Dallas 2003, pet. denied) (rule t hat appellate co urt w il l uphold judgment on any legal theory that finds support in the evidence applies regardless of oral pronouncements from the trial court).9

post

- divorce enforcement a ction, insufficient evidence is a factor to consi der in assessing whether the trial court abused its discretion).
Tim ’ s seco nd issue is sustained in part to bar recovery of the March 201 5 payment , thus reducing the damages awarded by $4,000.
IV. P REJU DGMENT I NTEREST
Within his second issue, Tim contends th at Freida should not have been able to recover the alimony “ plus int e rest ” for the month of March 2015. But, h e does not provide a calculation for prejudgment interest or assert specific error related to the calculation of prejudgment interest, and we are unable to d iscern from the record the exact calculation used by the trial court

. H e prays that this court reverse the judgment and remand for further proceedings. Accord ingly, we will rever se the award of prejudgment interest and remand for the trial co urt to recalculate prejudgment interest in light of the modified dam ages a w ard

. See Tex. R. App. P. 43.3 ; see also, e.g. , Jang Won Cho v. Kun Sik Kim , 572 S.W.3d 783, 815 (Tex. App.

— Houston [14th Dist.] 2019, no pet.) (remanding for recalculation of prejudgment interest in light of the modified damages award).
V. C ONCLUSION Having overruled Tim ’ s first issue and sustained in part his second issue, we

mo dify the trial court ’ s judgment to order that Freida recover from Tim the sum of $8,000

. We orde r that the portion of th e judgment that awards prejudgment interest i s reversed and o r dered severed and remanded to the trial court for further proceedings in accordance with this court ’ s opinion. T he remainder of the trial
court ’ s judgment i s affirmed

.10 /s/ K en Wise J ustice

Panel con sists o f Chie f Just i ce Ch ristopher and Jus ti ces Wise and Hassan

.