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Family Law No. 14-01-00854-CV, 4/17/2003. Click here for the full text of this decision FACTS: In this case to enforce an agreement incident to divorce, Margaret Dye Sudan, now known as Maggie Mackenzie (“Mackenzie”), appeals a summary judgment granted in favor of Philip P. Sudan Jr. (“Sudan”) and the denial of her own motion for summary judgment. In 1993, the parties entered into an agreement incident to their divorce that was incorporated into their divorce decree. In 1998, the parties entered into an amendment to the agreement. In 1999, Mackenzie sued Sudan for rescission of the amendment, breach of the agreement, intentional infliction of emotional distress, and tortious interference. After the parties filed cross motions for summary judgment, the trial court granted Sudan a partial summary judgment, denied Mackenzie’s motion, and severed the remaining claims. HOLDING: Affirmed as modified, in part, reversed and remanded, in part. Mackenzie’s first and fourth issues challenge the granting of Sudan’s, and denial of her, motion for summary judgment to the extent those decisions were based on the amendment. She contends that the amendment concerned child support and was therefore unenforceable for lack of court approval. In Texas, the Legislature has expressly required that parental agreements concerning child support be expressly approved by the court based on whether the agreement is in the child’s best interest. Accordingly, agreements by parents to reduce or modify court-ordered child support obligations without such approval violate public policy and are unenforceable. Portions of the amendment purport to relieve Sudan of not only the contractual alimony obligation, but also the child support obligation that would have otherwise been triggered, under the decree and the agreement, by termination of the contractual alimony obligation. To that extent, the amendment effected a modification of Sudan’s child support obligation and required court approval under the terms of the decree and agreement and the law of Texas. In that no such court approval was obtained for the amendment, and that, at the time it was entered, none of the specified circumstances had been met that would have concluded the child support obligation, this modification of Sudan’s child support obligation was unenforceable. As a general rule, where part of the consideration for an agreement is illegal, the entire agreement is void if the contract is entire and indivisible. An exception applies where the original consideration for the contract is legal, but nonessential promises within the contract are found to be illegal. A contract is also divisible where performance by one side consists of multiple distinct items and the consideration provided by the other party is apportioned separately to each. In such a case, the court may sever the invalid provision and uphold the valid portion. Severability is determined by the intent of the parties as evidenced by the language in the contract. The issue is whether the parties would have entered into the agreement absent the illegal parts. In this case, the amendment calls for a single lump sum payment to extinguish all remaining obligations under the agreement. There is no apportionment of consideration among any separate items of performance and nothing in the amendment to reflect that the parties would have entered into it (or for what differing amount of lump sum payment) had extinguishment of the child support obligation either not been included in the agreement or failed to be approved by a court. Nor can the court infer that the extinguishment of a child support obligation is a nonessential element of the amendment. Under these circumstances, the court concludes that the amendment is not severable or divisible, and, accordingly, that the invalidity of the child support modification invalidates the entire amendment. OPINION: Edelman, J; Hudson, Edelman and Seymore, JJ.

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