MEMORANDUM OPINION Before Justices Pedersen, III, Reichek, and Carlyle Opinion by Justice Carlyle Father appeals from the trial court’s order granting Mother’s plea to the jurisdiction and dismissing his petition to modify terms of their agreed final divorce decree governing school choice as well as his obligation to pay for the children’s private-school tuition. The trial court determined it lacked jurisdiction to modify the decree because the terms in question were contractual in nature and dismissed the petition. We reverse the trial court’s jurisdictional ruling and remand the case for further proceedings. Because the issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. Background Mother and Father divorced in 2015 and have two children, H.L.B. and B.L.B. Their agreed final divorce decree contains the following two provisions in a subsection titled “Other Parenting Plan Provisions”[1]: 2. Choice of Schools - The Court finds that [H.L.B.] is currently enrolled at [a particular private school]. IT IS THEREFORE ORDERED AND DECREED that [H.L.B.] shall continue attending [the private school] for the calendar year 2015-2016 and for all subsequent years thereafter, as agreed to by the parties. IT IS ORDERED AND DECREED that [B.L.B.] shall attend [the same private school], if accepted, for the calendar year 2016-2017 and for all subsequent years thereafter, as agreed to by the parties. In the event [B.L.B.] is not accepted at [the private school], IT IS ORDERED AND DECREED that [B.L.B.] shall attend [a particular public school] for the calendar year 2016-2017 and for all subsequent years thereafter as agreed to by the parties. No changes in enrollment or participation shall be made without the consent of both parents. * * * 5. Educational Expenses [Father] shall pay 100% of the cost of the private school tuition at [the particular private school]. All other school expenses incurred on behalf of either child, including uniforms, class trips, activity fees, sports, book fees, and fees for AP classes at [the private school] or at a public school, shall be paid equally by the parties. IT IS THEREFORE ORDERED that [Mother] shall pay 50 percent and [Father] shall pay 50 percent of all “other school expenses” as set out hereinbelow. The party who incurs a school expense on behalf of a child is ORDERED to furnish to the other party all forms, receipts, bills, and/or statement reflecting the school expense within thirty days after he or she receives them. The nonincurring party is ORDERED to pay his or her percentage of the school expense by reimbursing the incurring party for any advance payment of the school expense within thirty days after the nonincurring party receives the forms, receipts, bills and/or statement. These provisions apply to all school expenses that are incurred while child support is payable for any child. The next section of the decree, titled “Child Support,” provides: “IT IS ORDERED that no party will owe child support to the other party.” As contemplated by the decree, B.L.B. was eventually accepted at the private school, and he enrolled there in 2016 along with H.L.B. But in March 2018, Father petitioned to modify the terms of the decree.[2] He asked the trial court to terminate his obligation to pay 100% of the children’s private-school tuition, and he requested that—unless Mother agreed to pay 100% of the private-school tuition—the kids be enrolled instead in a public school determined by his residence.[3] His petition stated that circumstances had changed and that the requested modifications would be in the best interests of the children. Mother responded by filing a plea to the jurisdiction. She contended Father’s obligation to pay private-school tuition was contractual in nature, and the trial court therefore lacked jurisdiction to modify the decree. At the hearing on her plea to the jurisdiction, Mother argued that Father’s obligation to pay tuition was akin to contractual alimony and was thus not subject to judicial modification. Father responded that orders concerning child support—including educational expenses—cannot be enforced as contracts. He added that, regardless, the trial court had authority to modify the provision concerning school-choice because it was ambiguous. Finally, he contended the trial court obtained continuing jurisdiction over the case when it entered the final divorce decree. The trial court granted Mother’s plea to the jurisdiction. In its order, the trial court concluded it lacked “jurisdiction to modify the contractual agreement with respect to the ‘Educational Expenses’” and stated Father’s “request for modification…should be in all things dismissed for lack of jurisdiction.” The trial court then entered “Findings of Fact and Conclusions of Law,” in which it stated: With respect to relief sought concerning modification of possession and access, [Father] is seeking to modify a contractual agreement made between [Father] and [Mother] in the Final Decree of Divorce signed by this Court on September 2015 The parties made a contractual agreement as to the payment of private school tuition under Educational Expenses on Page 24 of [the] Final Decree of Divorce, wherein the parties agreed that “[Father] shall pay 100% of the cost of the private school tuition at [the private school]“. The payment of private school tuition as set forth in the Final Decree of Divorce was not an order for child support. The agreement of the parties regarding “Educational Expenses” set forth in the Final Decree of Divorce is a consent judgment and thus has the same degree of finality and binding force as a judgment rendered by the court at the conclusion of an adversary proceeding. The Court does not have jurisdiction to modify the contractual agreement of the parties with respect to “Educational Expenses” and therefore the Court should dismiss this cause of action for lack of jurisdiction. Standard of Review A plea to the jurisdiction is a dilatory plea challenging the trial court’s subject-matter jurisdiction. BlandIndep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Although the claims asserted in a petition may provide the context in which the plea to the jurisdiction is raised, a ruling on the plea should be made without regard to the merits of the claims. Id. We review the trial court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The trial court has jurisdiction over Father’s request to modify the divorce decree. In two issues, Father contends the trial court erred in granting Mother’s plea to the jurisdiction because the trial court had continuing subject-matter jurisdiction to modify the terms of the final divorce decree as it pertained to the children. We agree. When the trial court rendered its final divorce decree, it acquired continuing, exclusive jurisdiction over issues concerning the parents’ rights and duties pertaining to their children’s care, support, and education. See Tex. Fam. Code §§ 155.001(a); 151.001(a)(3) (“A parent of a child has . . . the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education.”); 153.133(a)(2) (providing that the terms of an agreed parenting plan under which parents are appointed joint managing conservators must specify “the rights and duties of each parent regarding the child’s physical care, support, and education.”). “A court with continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, support, or possession of and access to a child.” Id. § 156.001. Mother nevertheless contends Father’s obligation to pay private-school tuition was purely contractual. From that premise, she argues the trial court lacked jurisdiction to modify the contract between the parties, though she acknowledges the Family Code provides that agreements concerning child support cannot be enforced contractually. See id. §§ 153.007(c) (“Terms of the agreed parenting plan contained in the order or incorporated by reference regarding conservatorship or support of or access to a child in an order may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract.”), 154.124(c) (“Terms of the agreement pertaining to child support in the order may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract.”). She contends, however, that Father’s obligation to pay private-school tuition does not qualify as “child support” under the Family Code; thus, Father’s tuition obligation can be enforced contractually. Mother’s argument is flawed for at least two reasons. First, whatever label the parties place upon it, an obligation to pay a minor child’s school tuition is necessarily an obligation to provide child support. See In re Grossnickle, 115 S.W.3d 238, 247 (Tex. App.—Texarkana 2003, no pet.) (“[T]he required payment by Richard of half the costs for the child to attend Hockaday, though categorized separately, is necessarily a form of child support.”); see also Huffines v. McMahill, No. 07-10-00029-CV, 2010 WL 2836980, at *2 (Tex. App.—Amarillo July 20, 2010, no pet.) (“[T]he most common type of child support order is one that requires the parent who is not managing conservator to pay the managing conservator a sum of money on a periodic basis. But other types of support are authorized. Child support payments may include a specific expense, such as tuition.” (quotations and citations omitted)). Father’s obligation to pay tuition is not a contractual debt owed to Mother; it is an obligation undertaken to fulfill a duty owed directly to the minor children and thus, a form of child support. See Ochsner v. Ochsner, 517 S.W.3d 717, 724-26 (Tex. 2016) (treating tuition payments as a form of child support and noting the “key tenet that child support is a duty owed by a parent to a child, not a debt owed to the other parent”); see also Fam. §§ 151.001(a)(3), 153.133(a)(2). We are not persuaded by the cases Mother cites where courts have found a contractual obligation to pay post-majority college tuition. “Child support, by definition, applies only to a child under the age of 18 years who has not yet graduated from high school or a high-school equivalent program.” In re W.R.B., No. 05-12-00776-CV, 2014 WL 1008222, at *4 (Tex. App.— Dallas Feb. 20, 2014, pet. denied) (mem. op.). Thus, “post-majority support is not child support,” and an agreement to pay a child’s college tuition after the child reaches the age of majority can be enforced contractually. Id. We are likewise unconvinced by Mother’s contention that, because the “Educational Expenses” section comes before the “Child Support” heading in the decree, Father’s tuition obligation must be interpreted as “ purely contractual.” Although we agree that a contractual provision’s placement may sometimes inform its meaning, we are not persuaded that the placement of the “Educational Expenses” and “Choice of Schools” provisions here, outside of the decree’s separate “Child Support” section, determines the fundamental nature of the rights or duties conferred by the provisions. Moreover, Mother’s counsel acknowledged at the hearing that even she “ assum[ed] the reason that there’s no [separately ordered] child support is because [Father] agreed to pay the child support school tuition.” That makes sense. Further, had the parties intended to place the educational issues beyond the trial court’s reach by structuring the agreement to avoid classifying the tuition obligation as child support, the agreement would be unenforceable. In re Lee, No. 14-11-00714-CV, 2011 WL 4036610, at *1 (Tex. App.—Houston [14th Dist.] Sept. 13, 2011, orig. proceeding) (mem. op.) (“Parties cannot by contract deprive the court of its power to guard the best interest of the child.” (quoting Leonard v. Lane, 821 S.W.2d 275, 278 (Tex. App.—Houston [1st Dist.] 1991, writ denied)); In re T.K.W., No. 04-09-00048-CV, 2010 WL 546584, at *2 (Tex. App.—San Antonio Feb. 17, 2010, no pet.) (mem. op.) (“[W]hen parties draft child support agreements, they cannot agree to prohibit the intervention of the courts where such intervention is authorized by the Family Code.”). We have said that “[a]n agreement on conservatorship issues that is not in the child’s best interest violates public policy and is unenforceable.” Garcia-Udall v. Udall, 141 S.W.3d 323, 331 (Tex. App.— Dallas 2004, no pet.). And Mother incorrectly relies on the trial court’s “finding” that “[t]he payment of private school tuition as set forth in the Final Decree of Divorce was not an order for child support.” The trial court’s “finding” is a legal conclusion to which we are not bound. See Huffines, 2010 WL 2836980, at *2 (holding that a trial court’s finding as to whether an obligation imposed under a decree qualifies as child support is a legal conclusion that is not binding on an appellate court). As noted, we disagree with the trial court’s conclusion. Second, Mother’s argument goes more to the merits of whether Father is entitled to modification under the Family Code than it does to the trial court’s subject-matter jurisdiction to determine whether he is entitled to that relief. Even if Father ultimately could not show the tuition obligation is subject to modification under the Family Code, the trial court would retain its continuing, exclusive jurisdiction to make that determination. See Philips v. McNease, 467 S.W.3d 688, 695 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“Gail’s argument is more merits-based than jurisdictional. A trial court has ample authority under the Family Code to modify the terms of a divorce decree. . . . [W]hether John has stated valid grounds for relief under the Family Code does not answer whether the trial court has jurisdiction over this modification proceeding. A court can have jurisdiction even where the plaintiff is incapable of prevailing.”). The trial court erred in concluding it lacked jurisdiction to determine the merits of Father’s request to modify the “Educational Expenses” and “Choice of Schools” provisions in the decree. We therefore reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion. Whether Father is entitled to the relief he requests on the merits is a matter committed to the trial court’s discretion on remand. /Cory L. Carlyle/ CORY L. CARLYLE JUSTICE 181061F.P05 Court of Appeals Fifth District of Texas at Dallas JUDGMENT On Appeal from the 469th Judicial District Court, Collin County, Texas Trial Court Cause No. 469-51414-2015. Opinion delivered by Justice Carlyle. Justices Pedersen, III and Reichek participating. IN THE INTEREST OF H.L.B. AND B.L.B., CHILDREN No. 05-18-01061-CV V. In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with the opinion. It is ORDERED that appellant recover his costs of this appeal from appellee. Judgment entered this 9th day of January, 2020.
