Motion for Rehearing Overruled and Supplemental Opinion filed July 6, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00728-CV

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GERALD T. OWENS, Appellant

V.

SALLY FARRIER OWENS, Appellee

On Appeal from the 312th District Court

Harris County, Texas

Trial Court Cause No. 99-48470-D

S U P P L E M E N T A L  O P I N I O N

            We issue this supplemental opinion to address certain issues raised in appellee Sally Farrier Owens’s motion for rehearing and supplement to motion for rehearing.

                                                           Measure of Damages

            On original submission, this court determined that, under New York law, the measure of Sally’s damages under the Separation Agreement is the difference between the amount of alimony provided for in the Separation Agreement and the lower amount, if any, owed by

Gerald under the divorce judgment after the trial court rules on Gerald’s petition to modify.[1]  On rehearing, Sally argues that none of the cases cited by this court in its opinion support this measure of damages in a case in which the trial court has not yet ruled on the petition to modify.  We disagree.  Similar to the instant case, in one of the cases cited by this court, a husband’s petition to reduce alimony due under the judgment was joined with the wife’s suit to enforce the husband’s contractual obligation to pay alimony under a pre-July 19, 1980 separation agreement.  See Rogers v. Rogers, 557 N.Y.S.2d 799, 800–01 (N.Y. App. Div. 1990).  The trial court retroactively lowered the husband’s obligations under the judgment to zero but did not rule on the wife’s action for breach of the separation agreement.  See id.  The appellate court reversed and held that “[a]ny modification of the judgment leaves untouched the right of the supported spouse to maintain an action for breach of contract to collect the difference between a reduced award and the amount provided for in the separation agreement.”  Id. (emphasis added).  If modification of the judgment left the contractual right to recover this difference untouched, then this right must have existed before the trial court modified the judgment.  The appellate court in Rogers concluded that the trial court erred by not determining the supported spouse’s rights under both the separation agreement and the divorce judgment.  See id.  Rogers supports this court’s conclusion on original submission as to the measure of damages under New York law for a party seeking to enforce a pre-July 19, 1980 separation agreement in a proceeding that includes a petition to modify the divorce judgment asserted by the obligor under the separation agreement.

                                           Texas Family Code Section 159.211(b)

            In addition, on rehearing, Sally also asserts that, under section 159.211(b) of the Texas Family Code, Texas courts may not modify the alimony provisions of her divorce judgment.  See Tex. Fam. Code Ann. § 159.211(b) (Vernon Supp. 2005).  Sally did not make this argument or any argument based on this statute in the trial court or on original submission.  This court cannot affirm the trial court’s summary judgment on this basis because it was not asserted in Sally’s motion for summary judgment.  See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (holding that appellate court cannot affirm trial court’s summary judgment on a ground not expressly stated in the motion for summary judgment).  Furthermore, the Texas Legislature enacted section 159.211(b) of the Texas Family Code in 2003 and made this statute applicable only to proceedings regarding support obligations or parentage that are commenced on or after September 1, 2003.  See Act of May 28, 2003, 78th Leg., R.S., ch. 1247, §§ 12, 47, 48, 2003 Tex. Gen. Laws 3521, 3527, 3536–37.  Because the proceedings in this case were commenced in 2001, this statute does not apply.  See id.

            We conclude that Sally’s original and supplemental motion for rehearing lack merit and overrule them.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Motion for Rehearing Overruled and Supplemental Opinion filed July 6, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.