Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-25-00497-CV Joseph DeSimone, Appellant v. Candyce Zook, Appellee FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-21-006301, THE HONORABLE MARIA CANTÚ HEXSEL, JUDGE PRESIDING MEMORANDUM OPINION In this suit affecting the parent–child relationship (SAPCR), the parents of the minor child at issue—Joseph DeSimone and Candace Zook—filed competing motions to enforce the trial court’s prior final agreed SAPCR order. The trial court rendered a final order (Final Order) granting each party’s motion for enforcement and granting Zook’s motion for enforcement of a temporary ex parte protective order (TPO). DeSimone appeals from the trial court’s Final Order, challenging its provisions awarding Zook attorneys’ fees and ordering him to pay her $54,000 for his failure to comply with the agreed order’s payment provisions. For the following reasons, we affirm. BACKGROUND DeSimone and Zook have one minor child together, Lucas. 1 The SAPCR began in October 2021 when DeSimone filed an original SAPCR petition seeking orders for the conservatorship of, possession of, and access to Lucas. DeSimone alleged that the parties were never married. In October 2022, the parties executed and filed with the trial court an Irrevocable Settlement Agreement for Final Orders (Agreement). The Agreement recited that the parties had thereby reached a “comprehensive and final settlement of all claims, counterclaims, issues, and disputes that exist between them relating to the conservatorship, possession and access, support, and all other child-related issues” as well as of “the claim of informal marriage.” 2 In the Agreement, DeSimone agreed to (1) make monthly “voluntary payments” to Zook “for the benefit of the child” for forty-eight months (as described in more detail infra) and thereafter monthly child-support payments to Zook of $1,840; (2) pay all premiums for medical, dental, and vision insurance for the child; and (3) pay 100% of costs for all mutually agreed-upon educational expenses and extra-curricular activities for the child. Per the Agreement, the parties agreed to be joint managing conservators, with neither having the right to designate the child’s primary residence, but granted Zook the “exclusive right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child.” On February 15, 2023, the trial court signed its Agreed Final Order in Suit Affecting the 1 We use a pseudonym for the parties’ minor child to protect his privacy. 2 Although Zook’s pleadings are not in the record, she appears to have claimed that the parties had an informal marriage. 2 Parent–Child Relationship and Order Dismissing Claims of Informal Marriage (Agreed Order), rendering judgment on the Agreement. In November 2024, DeSimone filed a motion to enforce the Agreed Order, alleging that Zook had violated the possession schedule by returning Lucas to him about twelve hours later than required on a specified date. Zook then filed a petition for enforcement of support alleging that DeSimone failed to make required payments to her pursuant to the Agreed Order totaling $48,000 and seeking attorneys’ fees. 3 She also filed a motion to enforce the TPO. On January 9 and February 6, 2025, the trial court held an evidentiary hearing on the parties’ competing motions and signed its Final Order on April 10, 2025. DeSimone filed a request for findings of fact (FOF) and conclusions of law (COL) and, when the trial court failed to timely file them, a notice of past-due FOF and COL. By the time DeSimone filed his notice of appeal, the trial court had not issued any FOFs and COLs, nor had it issued them by the time his opening appellate brief was due. Rather than requesting an abatement for issuance of the FOFs and COLs, DeSimone filed his appellate brief. DISCUSSION In three issues, DeSimone argues that (1) the trial court’s failure to issue FOFs and COLs was harmful error, and the trial court “should be directed to file the missing” FOFs and COLs; (2) the trial court erred in construing the provision in the Agreed Order referring to his agreement to make “voluntary” payments to Zook “for the benefit of the child” to be mandatory; and (3) the trial court erred in awarding attorneys’ fees to Zook because she failed to 3 The Final Order required DeSimone to pay Zook for two additional months of support for the months while this cause was pending. 3 segregate fees between claims for which her fees are recoverable and those for which they are not. DeSimone’s first issue is moot because since he filed his brief, yet before he filed a reply brief, the trial court issued its FOFs and COLs. See Morrison v. Cogdell, No. 2-02-261- CV, 2003 WL 21476243, at *1 (Tex. App.—Fort Worth June 26, 2003, no pet.) (mem. op.) (holding that appellant’s complaint about trial court’s failure to file findings of fact and conclusions of law was mooted by its filing of same while case was on appeal); see also Camarena v. Texas Emp. Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (“[I]t is axiomatic that appellate courts do not decide cases in which no controversy exists between the parties.”). In his reply brief, DeSimone contends that the trial court’s late filing of its FOFs and COLs “prejudiced the presentation of [his] appeal,” but beyond this conclusory statement, he does not explain how such prejudice manifested. We therefore do not address the issue. See Tex. R. App. P. 44.1(a) (harmless-error rule); see also Nguyen v. Pham, 640 S.W.3d 266, 270 (Tex. App.—Houston [14th Dist.] 2021, pet. denied) (determining that because trial court filed FOFs and COLs before appellant filed reply brief, appellant was not prevented from properly presenting his case on appeal, but appellate court would consider arguments related to FOFs made in reply brief). Related to his first issue, DeSimone in his reply brief challenges the sufficiency of the evidence supporting several FOFs. As to all but one of the challenged FOFs, however, he does not explain how he was harmed by them or how the FOFs probably caused the rendition of an improper judgment, and we therefore do not address his challenges. See Tex. R. App. P. 44.1(a). As to his challenge to FOF 5, which recites, “No credible evidence was presented or received that . . . Zook cohabitated with another individual causing the termination, cessation or elimination of support,” DeSimone does not cite any evidence in the record to support his 4 contention that Zook had cohabitated with another individual (and that his monthly payment obligation accordingly ceased). See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241–42 (Tex. 2001) (outlining what party must demonstrate on appeal when attacking legal and factual sufficiency of adverse finding on which it had burden of proof). We therefore overrule DeSimone’s challenges to the FOFs.4 In his second issue, DeSimone argues that the trial court improperly construed the provision of the Agreed Order concerning monthly “voluntary payments” he agreed to make to Zook for the benefit of the child. The disputed provision reads, Voluntary Payments for the Benefit of the Child The Court finds that JOSEPH PASQUALE DESIMONE has agreed to make voluntary payments to CANDYCE MAREE ZOOK for the benefit of the child in the amount of $7,840.00 per month, with the first payment being due and payable on June 1, 2022 and a like payment in the amount of $7,840.00 being due and payable on the first day of each month thereafter until three (3) months of the $7,840.00 voluntary payments have been made by JOSEPH PASQUALE DESIMONE. Thereafter, JOSEPH PASQUALE DESIMONE agrees to make voluntary payments to CANDYCE MAREE ZOOK for the benefit of the child in the amount of $3,000.00 per month, with the first payment being due and payable on September 1, 2022 and a like payment in the amount of $3,000.00 on the first day of each month until forty-five (45) months of the $3,000.00 voluntary payments have been made by JOSEPH PASQUALE DESIMONE. IT IS ORDERED that in the event CANDYCE MAREE ZOOK cohabitates with another individual the payments under this provision will no longer be due and owing from the date of cohabitation forward. Said voluntary 4 In his reply brief, DeSimone additionally challenges several COLs, but we need not address those separately from the legal issues he raised in his opening brief and which we address infra. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002) (appellate courts review trial court’s conclusions of law de novo and will not reverse for erroneous legal conclusions if trial court nonetheless rendered proper judgment). 5 payments shall be made by JOSEPH PASQUALE DESIMONE to CANDYCE MAREE ZOOK by direct deposit into an account designated in writing by her. Following this provision in the Agreed Order is a paragraph entitled “Child Support,” which provides that beginning on June 1, 2026 (i.e., immediately after the forty-eight above-specified monthly payments have elapsed), DeSimone “shall pay” Zook “monthly child support” of $1,840 until the earliest of specified events occur (e.g., the child turns eighteen). In her motion to enforce, Zook alleged that DeSimone had been making the required payments under the disputed provision through August 1, 2023, but failed to make the $3,000 monthly payments to her from September 1, 2023, to December 1, 2024, and that he therefore owes her $48,000. In its Final Order, the trial court agreed with Zook that this provision required DeSimone to pay Zook the monthly $3,000 payments and rejected DeSimone’s argument that he could voluntarily opt out of making such payments. We review the trial court’s construction of this provision de novo. See Sundown Energy LP v. HJSA No. 3 Ltd. P’ship, 622 S.W.3d 884, 888 (Tex. 2021) (per curiam) (construction of contract is question of law); Gulf Ins. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex. 2000) (agreed judgments are construed as contracts). “When construing a contract, ‘a court must ascertain the true intentions of the parties as expressed in the writing itself.’” Sundown Energy, 622 S.W.3d at 888 (quoting Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011)). “We give terms their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used them in a technical or different sense.” Id. (quoting Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996)). We also consider the context in which the words are used, avoid constructions that 6 render provisions meaningless, and construe contract provisions together so as to give effect to the whole. Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 219 (Tex. 2022). DeSimone rests his argument entirely on the word “voluntary,” reading it in isolation from the remainder of the paragraph and the entire instrument. While in a vacuum the word “voluntary” does typically mean optional—that is, “acting or done of one’s own free will without valuable consideration or legal obligation” or “proceeding from the will or from one’s own choice or consent,” see Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/voluntary (last visited August 3, 2026)—we must construe the word in the context of both the paragraph in which it appears and the overall Agreed Order. The paragraph states that DeSimone has “agreed” to make monthly “voluntary payments” to Zook “for the benefit of the child” in two amounts for two durations: (1) $7,840.00 for three months (beginning June 1, 2022) and (2) $3,000.00 for forty-five months (beginning September 1, 2022). The paragraph specifies that the monthly amounts are “due and payable” on the first of each month until all forty-eight payments have been made. The paragraph further specifies that the payments shall “no longer be due and owing” in the event Zook cohabitates with another individual. It ends by stating that DeSimone’s payments “shall be made” “by direct deposit” into Zook’s account as she designates. Additionally, the paragraph immediately following provides that DeSimone is required to pay “monthly child support” to Zook of $1,840 beginning the very next month after the forty-eight months of “voluntary payments” “for the benefit of the child” have elapsed. Such is the nature of settlements and agreed judgments that parties typically agree thereby to make payments and undertake obligations they might not otherwise be legally 7 obligated for, in the interest of settling their dispute. 5 Such context explains the use of the word “voluntary” vis-á-vis the payments DeSimone has “agreed” to make (in two stepped-down amounts) for the first forty-eight months in exchange for, in part, Zook’s agreement to forgo her informal-marriage claim, and also in light of DeSimone’s agreement to pay Zook child support in an even lesser amount (that is in line with the statutory child-support guidelines) thereafter. Additionally, the fact that the provision reads that DeSimone “shall” make the payments, which are “due and payable” for the earliest of the completion of all forty-eight payments or Zook’s cohabitation, implies that he may not simply choose to discontinue the payments absent proof of Zook’s cohabitation. DeSimone’s proposed construction is unreasonable in the context of the paragraph and the Agreed Order in its entirety and would render the additional provisions in the paragraph meaningless. See Gulf Ins., 22 S.W.3d at 422. If DeSimone truly could voluntarily decide whether to make any or all of the payments, and they were subject only to his whim, there would be no reason to include such a detailed description of the payments, their due dates, and their contingence on Zook’s non-cohabitation in the Agreed Order. DeSimone’s construction would require us to read the provision to mean that the parties had agreed that DeSimone owed no child support for the first four years but would begin owing child support thereafter, which is inconsistent with the parties’ intentions as expressed in the paragraph and remainder of the Agreed Order. We conclude that the trial court properly construed the disputed provision and overrule DeSimone’s second issue. 5 The trial court recognized as much, as reflected in its FOFs 7 and 8, which recite that at the time of the Agreement, “the maximum amount of monthly child support payable under the Texas Family Code Guidelines by an obligor with net resources greater than $9,200.00 per month would be $1,840.00 per month, absent findings of proven needs exceeding that figure” and the “amounts payable under the [paragraph] . . . are significantly higher than” that. 8 In his third issue, DeSimone contends that the trial court erred in awarding Zook $25,000 in attorneys’ fees because she failed to segregate her fees between her claims for which fees are recoverable and those for which they are not. However, even assuming that segregation was necessary as to any of Zook’s claims, DeSimone did not object below to Zook’s failure to segregate fees between recoverable and unrecoverable claims; he has, therefore, not preserved the issue for appellate review. See Green Int’l v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (“[I]f no one objects to the fact that the attorney’s fees are not segregated as to specific claims, then the objection is waived.”); Kozinn v. Kozinn, No. 03-23-00378-CV, 2025 WL 1748191, at *4 (Tex. App.—Austin June 25, 2025, no pet.) (mem. op.) (same). We therefore do not address his third issue. CONCLUSION Having overruled DeSimone’s issues that were preserved for review, we affirm the trial court’s judgment. __________________________________________ Karin Crump, Justice Before Chief Justice Byrne, Justices Theofanis and Crump Affirmed Filed: August 31, 2026 9