In a decision entered by the Texas Court of Appeals on February 4, 2010, in the matter Kee v. Kee 05-08-00013-CV (Tex.App.-Dallas 2-4-2010), the Texas Court of Appeals (Dallas) ruled that the alimony provisions of the parties’ partition agreement were not controlled by Chapter Eight of the Family Code where the parties failed to set forth the factors warranting alimony, and made no reference in their agreement to Chapter Eight. Based on the foregoing, the Court of Appeals ruled that the remedy of contempt was not available to the Wife for the Husband’s failure to make the payments that were required of him under the Agreement.
Chapter eight of the Texas Family Code sets forth numerous factors for a trial court to consider in determining spousal maintenance. See Tex. Fam. Code Ann. § 8.052. Moreover, spousal maintenance under chapter eight must be of limited duration and must terminate on remarriage. See Tex. Fam. Code Ann. §§ 8.054, 8.056. Chapter Eight also provides for income withholding for spousal maintenance payments. See Tex. Fam. Code Ann. § 8.101.
In the Kee case, the wife sought enforcement and contempt against her husband for his failure to pay alimony, as was agreed upon by the parties in their written Partition Agreement (the “Agreement”).
The Appeals Court described the parties’ Partition Agreement as follows:
That Agreement included a provision that, if the parties separated, Husband would provide monthly financial support for Wife and their two children in the amount of $3,400. The Agreement also provided that Husband would pay alimony in accordance with the support provision if the parties divorced. The parties were divorced on January 5, 2006. The divorce decree ordered Husband to pay child support and alimony for a combined total of $3,400.
The Appeals Court held that the parties’ agreement for payment of maintenance was a private contractual obligation that did not arise from Chapter Eight of the Family Code. Among other factors, the Appeals Court noted that the Kees’ Agreement lacked any specific reference to Chapter Eight of the Family Code, or the factors governing alimony which are set forth therein. The Court also noted that the period during which payment of alimony was to occur under the Kees’ agreement exceeded the time period allowable under Chapter Eight. Finally, the Court further noted that the parties’ agreement made no mention of the factors which necessitated payment of alimony.
Based on the foregoing, the Court of Appeals ruled that the husband could not be subject to contempt for his failure to pay alimony:
[A] private alimony debt is not contempt punishable by incarceration. Id. A legal obligation to support a spouse is enforceable by contempt, but a promise to pay contractual alimony creates nothing more than a debt.
Kee, 05-08-00013-CV (Tex.App.-Dallas 2-4-2010) (quoting In re Green,
221 S.W.3d 645,
646 (Tex. 2007)).
§ 8.051 FAM. Eligibility for Maintenance; Court Order
In a suit for dissolution of a marriage or in a proceeding for maintenance in a court with personal jurisdiction over both former spouses following the dissolution of their marriage by a court that lacked personal jurisdiction over an absent spouse, the court may order maintenance for either spouse only if:
- the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:
- within two years before the date on which a suit for dissolution of the marriage is filed; or
- while the suit is pending; or
- the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse's minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:
- is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
- is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or
- clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs, as limited by Section 8.054.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1999, 76th Leg., ch. 62, § 6.05, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 304, § 1, eff. Sept. 1, 1999. Renumbered from § 8.002 and amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001; Acts 2005, 79th Leg., ch. 914, § 1, eff. Sept. 1, 2005.
This article is provided for general information purposes only. This is not legal advice.
