On Appeal from the 301st District Court Dallas County
The parties were divorced under a divorce decree incorporating the terms of their mediated settlement agreement. Pursuant to the decree, the appellant was to transfer to appellee funds from a 401k account and contractual alimony of $5000 per month. The appellee paid the entire amount outstanding on six of the liabilities. However, on two of the liabilities, credit cards in the appellee's name only, the appellee negotiated reductions with the creditors. Both the parties filed motions to clarify the divorce decree. The appellant also brought a claim for breach of contract, alleging the appellee had breached the mediated settlement agreement by failing to pay the liabilities in the amounts set forth in the agreement. The appellee asserted that the appellant had failed to make six of the alimony payments and requested the court hold the appellant in contempt for failing to pay and impose a withholding order. The trial court ruled on the parties' motions. The appellate court found that the appellant had failed to show the trial court erred by not offsetting his alimony payments by the $76,308 that the appellee failed to pay on two of the liabilities. The court further found that when the creditors accepted the appellee's payments in full discharge of the obligations, those liabilities were “paid in full,” and the appellee had complied with the conditions of the agreement. Further, the court noted that the agreement in the instant case provided for enforcement of the contractual alimony by income withholding. Thus, the trial court did not lack jurisdiction to enter an order of income withholding for contractual alimony after its plenary power over the divorce decree expired.  However, the court's Order of Income Withholding for Spousal Maintenance was not consistent with the divorce decree and constituted a material change in the decree. Finally, the trial court erred in issuing the February 5, 2010 Nunc Pro Tunc Order of Income Withholding for Contractual Alimony without notice to the parties as required by rule 316. Accordingly, the trial court's judgment as to the July 10, 2009 and February 5, 2010 income-withholding orders was reversed and vacated, and the trial court's judgment in all other respects was affirmed.