                                                                                ACCEPTED
                                                                                05-15-00131-CV
                                                                            FIFTH COURT OF APPEALS
                                                                                DALLAS, TEXAS
                                                                                7/6/2015 9:21:20 PM
                                                                                LISA MATZ
                                                                                CLERK

                   CAUSE NO. 05-15-00131-CV

                                                        FILED IN
                                                 5th COURT OF APPEALS
                  IN THE COURT OF APPEALS            DALLAS, TEXAS
        FOR   THE FIFTH JUDICIAL DISTRICT OF TEXAS
                                                 7/6/2015 9:21:20 PM
                       DALLAS, TEXAS                   LISA MATZ
                                                         Clerk

               Sisaat Sisavath, Oythib Phouangsavath,
                              Appellants

                                V.

                  Donald Oates, Sutton Place HOA,
                             Appellees

      From the County Court of Law No. 2, Dallas County, Texas
                 The Honorable King Fifer presiding

BRIEF OF APPELLEES DONALD OATES AND SUTTON PLACE HOA

                                  Law Office of Timothy E. Baker

                                  Timothy E. Baker
                                  State Bar Number: 24050247
                                  1205 S. Greenville Ave.
                                  Allen, TX 75002
                                  P. 214.727.4956
                                  F. 214.506.6015
                                  Attorney for Appellees Donald Oates and
                                  Sutton Place HOA

               ORAL ARGUMENT REQUESTED
I.     Identity of Parties and Counsel

       Appellees Donald Oates and Sutton Place HOA agree with the identification of
       Appellants and Appellants counsel.

       The attorney representing Appellees Donald Oates and Sutton Place HOA is:

               Timothy E. Baker
               Law Office of Timothy E. Baker
               State Bar Number 24050247
               1205 S. Greenville Ave
               Allen, TX 75002
               Phone: 214-727-4956
               Fax: 214-506-6015
               tbaker@timbakerlaw.com

       This adds in Mr. Baker’s State Bar number and corrects the fax number identified
       in Appellants’ brief.

       Appellees/Defendants Don Oates and Sutton Place HOA would like to

supplement and correct Appellants’ identification of Defendant Cencir, Inc.

       Defendant Cencir, Inc. was a defendant at the Justice of the Peace trial for this

matter. Cencir, Inc. did not appeal that judgment. However, when the matter was

originally called for trial at the County Court level (based on the appeal to the County

Court by Defendants Donald Oates and Sutton Place HOA), the County Court had

Cencir, Inc. noticed to appear at a new trial setting. Cencir, Inc. did not appear for this

new trial date, but trial proceeded and judgment was granted against Appellants/Plaintiffs

Sisaat Sisavath and Oythib Phouangsavath and in favor of Defendants Cencir, Inc.,

Donald Oates, and Sutton Place HOA.

       This brief is on behalf of Appellees/Defendants Donald Oates and Sutton Place

HOA only. Counsel for Donald Oates and Sutton Place HOA does not represent Cencir,

Inc.

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                Page 1 of 12
       To the knowledge of counsel for Appellees/Defendants Donald Oates and Sutton
Place HOA, contact information for Cencir, Inc. is:

Mary Davis
Cencir, Inc.
P.O. Box 170028
Dallas, TX 75217
P. 214-319-9001

To the knowledge of the counsel for Appellees/Defendants Donald Oates and Sutton
Place HOA, Appellee/Defendant Cencir, Inc. has never been represented by a licensed
attorney in this matter and Mary Davis is not a licensed attorney.

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                          Page 2 of 12
II.   Table of Contents

      I.      Identity of Parties and Counsel        1
      II.     Table of Contents                      3
      III.    Index of Authorities                   4
      IV.     Statement of the Case                  5
      V.      Statement Regarding Oral Argument      5
      VI.     Issues Presented                       5
      VII.    Statement of Facts                     6
      VIII.   Summary of Arguments                   6
      IX.     Arguments                              7
      X.      Prayer                                 12

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                              Page 3 of 12
III.   Index of Authorities

Statutes

TEX. OCC. CODE §2308.......................... 10
TEX. OCC. CODE § 2305.255.................. 10
TEX. OCC. CODE §2308.404....................6, 7, 8, 10, 11
TEX. OCC. CODE §2308.404(c)................6, 7
TEX. OCC. CODE §2308.405.................... 9
TEX. OCC. CODE §2308.406...................... 9
TEX. OCC. CODE §2308, Subchapter K..... 9
TEX. Prop. CODE § 202.001....................... 8

Texas Attorney General Opinions

DM-330 ……………………………...... 9
JC-0554 ……………………………….. 9

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                              Page 4 of 12
IV.    STATEMENT OF THE CASE

       Appellants sued Appellees in Justice of the Peace Court seeking damages for

violations of the Texas Towing and Booting Act. Appellants prevailed at the Justice of

the Peace level, but Appellees appealed to the County Court of Law level for a trial de

novo. On May 17, 2012, the case came for trial in the County Court of Law #2, Dallas

County, Texas and the Court found that Appellants were barred from seeking damages in

the matter and were not entitled to recover judgment against Appellees. (CR 1:961). On

September 4, 2012, the trial court issues findings of fact and conclusions of law. (CR1:7-

8). The 5th Court of Appeals, having the trial court’s judgment, but not the trial court’s

findings of fact and conclusions of law as part of the record, reversed the trial court’s

ruling and judgment as to the impact of res judicata in the case and remanded the case

back to the trial court for further proceedings consistent with the Court of Appeals

Opinion. (CR 1:11-18). Upon remand, the trial court held a status conference and set a

date for submission for dispositive motions. (CR1:638). After the status conference, but

before the submission date, Appellants filed an Amended Motion for Summary

Judgment. (CR1:639). Appellees filed a response to the Amended Motion for Summary

Judgment (CR1:938) and a Motion for Entry of Judgment (CR 1:943). On December

25th, 2014, the trial court rendered the judgment that is subject to this appeal finding that

Appellants take nothing (CR 1:961-962).

V.     STATEMENT REGARDING ORAL ARGUMENT

       The Court should grant oral argument as oral argument would give the Court a

more complete understanding of the facts and how they relate to the law in this case.

VI.    ISSUE PRESENTED

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                Page 5 of 12
        The trial court did not err as a matter of law in finding that Appellants take

nothing.

VII.    STATEMENT OF FACTS

        At some point during or prior to August 2010, Sutton Place HOA, through its

President, Donald Oates, contracted to have Cencir, Inc. patrol for parking violations

within the bounds of the HOA and to tow in certain circumstances (RR 3:75, 78, 87). On

September 18, 2010, cars belong to Appellants were towed by Cencir (RR 3:88-89).

Appellants sued, claiming that Appellants violated the Texas Towing and Booting Act in

a way or ways that justified remedies under §2308.404 of the Texas Occupational Code.

VIII. SUMMARY OF ARGUMENT

        §2308.404(c) of the Texas Occupational Code states that “A towing company,

booting company, or parking facility owner who intentionally, knowingly, or recklessly

violates this chapter is liable to the owner or operator of the vehicle that is subject of the

violation for $1,000 plus three times the fees assessed in the vehicle’s removal, towing,

storage, or booting.” Three phrases need to be understood to properly apply this statute

in this case.

        First is the phrase “parking facility owner.” Under the relevant definition in the

Occupational Code, Appellant Don Oates is not a “parking facility owner” and thus

should not be a party that can be liable under §2308.404.

        Second is the phrase “vehicle that is a subject of the violation.” Several of the

alleged violations relied on by Appellants to justify the §2308.404 remedies do not have a

particular vehicle that is subject to the violation and are regulated by fines rather than

§2308.404 remedies. Of the alleged violations where Appellants’ vehicles could be

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                Page 6 of 12
reasonably classified as vehicles that are a subject of the violation” the record indicates

that the violation may not have occurred if the trial judge gave credit to evidence

favorable to Appellees’ on those items.

        Additionally, these items where the vehicles could be seen as subject to the

violation, the third phrase, “intentionally, knowingly, or recklessly” needs to be

considered. There is evidence in the record that indicates that neither Don Oates nor

Sutton Place HOA acted intentionally, knowingly, or reckless in regards to these items.

IX.     ARGUMENT

        §2308.404(c) of the Texas Occupational Code states that “A towing company,

booting company, or parking facility owner who intentionally, knowingly, or recklessly

violates this chapter is liable to the owner or operator of the vehicle that is subject of the

violation for $1,000 plus three times the fees assessed in the vehicle’s removal, towing,

storage, or booting.” Three phrases need to be understood to properly apply this statute

in this case.

        First is the phrase “parking facility owner.” Under the relevant definition in the

Occupational Code, Appellant Don Oates is not a “parking facility owner” and thus

should not be a party that can be liable under §2308.404.

        The civil liability statute at issue in this case, TEX.OCC.CODE §2308.404 states

that “A towing company, booting company, or parking facility owner who violate this

statute is liable . . . .” Don Oates is President of Sutton Place HOA. He is not a towing

company, booting company, or parking facility owner. In the section outlining the

definitions under the towing act, “Parking Facility Owner” is defined as (A) an

individual, corporation, partnership, limited liability company, association, trust or other

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                Page 7 of 12
legal entity owning or operating a parking facility; (B) a property owners’ association

having control under a dedicatory instrument, as that term is defined in section 202.001,

Property Code, over assigned or unassigned parking areas; or (C) a property owner

having an exclusive right under a dedicatory instrument, as that term is defined in Section

202.001, Property Code, to use a parking space.”       Second is the phrase “vehicle that is

a subject of the violation.” Several of the alleged violations relied on by Appellants to

justify the §2308.404 remedies do not have a particular vehicle that is subject to the

violation and are regulated by fines rather than §2308.404 remedies. Of the alleged

violations where Appellants’ vehicles could be reasonably classified as vehicles that are a

subject of the violation” the record indicates that the violation may not have occurred if

the trial judge gave credit to evidence favorable to Appellees’ on those items.

       Don Oates falls into none of these categories and no cause of action other than

TEX.OCC.CODE §2308.404 was alleged against him. Thus, he should not be found

liable for any damages in the suit.

       The second phrase at issues is “vehicle that is a subject of the violation.” Several

of the alleged violations relied on by Appellants to justify the §2308.404 remedies do not

have a particular vehicle that is subject to the violation and are regulated by fines rather

than §2308.404 remedies. Of the alleged violations where Appellants’ vehicles could be

reasonably classified as vehicles that are a subject of the violation” the record indicates

that the violation may not have occurred if the trial judge gave credit to evidence

favorable to Appellees’ on those items.

       In particular, the Appellants’ claims in the following argument sections of their

brief fall under this category: A. iii. (signage was improper and insufficient), A. iv.

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                Page 8 of 12
(Appellees did not provide written verification to the tow company), and A. v. (Appellees

accepted signage and painting at no cost).

          For the signage and painting at no cost, the Appellees have referred to a couple of

Attorney General opinions that were appended to the Motion for Summary Judgment (CR

926-934). These opinions were dealing with the predecessors of the Occupational Code

provisions in effect at the time the tows in this case were made. Two points need to be

made about these opinions.

          The first deals with the relationship between the statute provision and its relation

to particular removals from a parking facility. In footnote one of Opinion No. DM-330,

Attorney General Dan Morales noted that “It has been suggested that the gift or loan of

such a sign may not be ‘in connection with the removal of a vehicle from a particular

facility.’ We decline to read this phrase to refer to particular removals. In our view,

it refers to the whole contract between the facility owner and the towing company and the

incidents thereto.” (CR1:929 – emphasis added). This phrase is quoted in the other

Attorney General’s opinion by John Cornyn provided by Appellants, JC-0554 (CR

1:932).

          The Cornyn opinion goes on to make the second point relevant here –

enforcement. It quotes the Transportation Code criminal penalty and describes how a

prosecution would work (CR 1:932-933). The criminal penalty is still in the statute as

TEX.OCC.CODE §2308.405. Other enforcement provisions are located at

TEX.OCC.CODE §2308.406 and Subchapter K of TEX.OCC.CODE §2308.

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                Page 9 of 12
       The point is that alleged violations of TEX.OCC.CODE §2308 need to be looked

in the context of is they are related to a particular tow in order for the remedies in

TEX.OCC.CODE §2308.404 to be applicable.

       The written verification to the tow company that the signs are in place seems

pretty remote from a particular tow and more appropriate to be addressed through

prosecution and action by regulators rather than be private litigation. Additionally,

Section 2308.255 of the Texas Occupations Code speaks to win a towing company may

tow, so it would be the towing company’s violation, not the parking facility owner’s

(Sutton Place HOA) violation.

       Improper and insufficient signage, especially in regards to whether a sign

mounted on a pole is considered permanently mounted seems a prosecutorial and

regulatory function rather than something that would make a tow subject to Section

2308.404 remedies if the sign was otherwise in compliance and in place at the time of the

tow.

       Even if and when there are alleged violations where it could be construed that the

vehicles could be seen as subject to the violation, the third phrase, “intentionally,

knowingly, or recklessly” needs to be considered. There is evidence in the record that

indicates that neither Don Oates nor Sutton Place HOA acted intentionally, knowingly, or

reckless in regards to these items.

       First, it appears that the Appellants’ brief applies the phrase “intentionally,

knowingly, and recklessly” to the act of towing (see Appellants’ Br. at paragraphs 82 and

83, pp. 23-24). The statute itself contemplates an intentional, knowing, or reckless

violation of the statute. Don Oates and the HOA (through Don Oates acting as its agent)

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                Page 10 of 12
did not reach this standard as Don Oates asked that the tow company to not tow the cars

and did not revoke that request (RR 2:132:7-23).

       As this applies to Appellants’ claim in subsection A. i. of their Argument, there is

disputed evidence on whether there were signs present on the night of the tow. Don

Oates testified that the sign was there at least a couple of days prior to the tow (RR

2:134:3-16). Appellants as Plaintiffs provided photos showing no signs two days after

the tow. Neither side conclusively demonstrated whether the sign was there on the night

of the tow and the burden was with the Appellants. The trial court could have given

credit to Don Oates testimony that the sign was there at one point shortly before the tow

and that the towing company may have been reluctant to tow if there was no sign.

       As to Appellants’ claim in subsection A. ii. of their Argument that the tow was

subject to Section 2308.404 remedies because the fire lanes did not meet the statutory

standards, there is testimony that the tows were not fire lane tows. Don Oates testified

that he was informed the cars were parked on the grass (RR 2:132:7-15). The sign in

question referenced parking on the grass as a violation (RR3:95). It can also be argued

that the fire lane regulation are global requirements not related to a particular tow and are

enforceable by local prosecutors rather than the civil penalty regime the Appellants are

relying on.

       As to Appellants claims in subsection A.iii. of their Argument that signage was

improper and insufficient (either not there or not properly mounted), if the trial court

found that the Appellants did not meet there burden of establishing the sign was not there

on the night in question, then the sign appeared other adequate except for questions of

mounting which the trial court could have found was permanent enough to meet the

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                               Page 11 of 12
statute’s requirements.

X.     PRAYER

Appellees pay that this Court upholds the trial court’s ruling and judgment in full.

                                              Respectfully submitted,

                                              Law Office of Timothy E. Baker

                                              By: /s/Timothy E. Baker
                                              TX Bar Number 24050247
                                              1205 S. Greenville Ave
                                              Allen, TX 75002
                                              P. 214.727.4956
                                              F. 214-506-6015
                                              Attorney for Appellees Donald Oates and
                                              Sutton Place HOA

                                  Certificate of Service

       I certify that a true copy of the foregoing was served in accordance with the Texas
Rules of Appellate Procedure to Warren V. Norred, attorney for Appellants on July 6,
2015.

                                              /s/ Timothy E. Baker
                                              Timothy E. Baker
                                              Attorney for Appellees Donald Oates and
                                              Sutton Place HOA

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                              Page 12 of 12


357 So.2d 347 (1978)
Mildred L. McGUGIN
v.
John M. McGUGIN.
Civ. 1291.
Court of Civil Appeals of Alabama.
April 5, 1978.
*348 Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellant.
No brief for appellee.
BRADLEY, Judge.
Appellant-wife was granted a divorce from her husband (appellee) by a decree of the Circuit Court of Mobile County on January 30, 1970. The decree of the circuit court ordered the husband to pay alimony and child support in the amount of $40 a week. The lot and the home in which the couple had resided remained in the joint ownership of the parties. However, the judgment of divorce specifically provided that the wife and the couple's only child, a daughter, were to retain possession of the home. The husband was directed to pay the monthly mortgage installments on this property. The decree continued by stating that "in the event the Complainant [wife] shall remarry, then the home place shall be sold, and after the costs incident to the sale and the mortgage balance thereon have been paid, the net balance shall be divided equally between the parties."
After the parties were divorced the husband frequently failed to provide either the support obligations or the mortgage payments *349 which he had been directed to pay. As a result of this situation, the wife instituted several actions seeking to have the husband pay the amount in arrears. Each time the wife's action was successful and the husband was ordered to provide her with the sum of money necessary to cover the arrearage. However, in August of 1973 the wife filed a petition for rule nisi. In this petition the wife alleged that the husband was in arrears in regard to support payments and that his whereabouts was unknown. Service on the husband was obtained by publication and thereafter a hearing was held. At the termination of this hearing the trial court found the husband to be in arrears and awarded separate judgments to the wife; the first, which was for the sum of $294, represented arrearage on the monthly mortgage payments; the second judgment was for $854 and consisted of unpaid alimony and child support. Execution was subsequently issued on these judgments and the Mobile County sheriff was requested to levy on and sell the husband's interest in his former residence. Thereafter a sheriff's sale was held and the wife purchased her ex-husband's interest in the home for the amount of court costs.
After obtaining her former husband's interest in the home, the wife did not receive any further alimony or support payments from her husband. However, sometime in 1977 she learned that her ex-husband was living in Pensacola, Florida. Upon ascertaining his new place of residence, the wife filed a motion for a judgment of arrearage alleging that the husband owed her $8,000 in unpaid alimony and child support.
A hearing was subsequently held on the wife's motion and the husband appeared to present his defenses. At the hearing the wife testified that she had not received any child support or alimony payments from her husband since October 31, 1973. Moreover, she stated that her former husband had not provided any mortgage payments since the same date.
The husband admitted that he had not paid his wife alimony or child support since October of 1973. In addition, he stated that he had failed to make some payments before October of 1973. However, he also testified that he had purchased his daughter an $800 automobile and bought her some clothes valued at approximately $136. Finally, he said that he had given his daughter $500 so that she could travel to Germany.
During the hearing the husband apparently contended that he should receive credit for the money which he had given his daughter and that the amount demanded by his wife should be reduced accordingly. Moreover, he asserted that his daughter finished high school in 1974 and that shortly thereafter she had gotten married. Accordingly, the husband maintained that his daughter was no longer dependent upon his support as of the date of her marriage and that his wife was not entitled to any child support for the period after the marriage of their daughter.
On the basis of this and other testimony the circuit court specified that the $40 a week awarded to the wife as child support and alimony in the original divorce decree was to be allocated as follows: $20 per week as child support, and $20 per week as alimony. The court then found that as of November 1, 1974 the husband was not required to furnish his wife with money for the support of their daughter. Thus the circuit court concluded that the $40 a week originally awarded to the wife as alimony and child support should be reduced to $20 a week constituting alimony only and that the effective date of this reduction was November 1, 1974.
Furthermore, based on the evidence presented to the court, the trial judge found that in February of 1974 the sheriff had levied on the husband's interest in the parties' jointly owned property and that as a consequence of this action the wife had purchased the interest of her former husband in that property. The court then held that the husband's interest in the property ceased on February 19, 1974 and that as of that date the lot and home thereon belong wholly to the wife. Consequently, the circuit court ruled that the husband was not *350 responsible for any mortgage payments due on the property after his interest was terminated by the judicial sale.
The court concluded its order by determining that the amount of arrearage for which the husband was liable was $2,024. From the findings and conclusions of the circuit court the wife appeals. (The husband did not file a brief in response to her appeal.)
In her brief to this court the wife contends that the judgment of the circuit court was in error for the following reasons: (1) the court's action in establishing future alimony payments violated her constitutional right to due process; (2) the court erroneously modified a property settlement; and (3) the court miscalculated the amount of arrearage to which the wife was entitled.
The first issue for our consideration concerns the wife's claim that her constitutional right to due process was violated because the circuit court determined the amount of alimony which she will receive in the future. Specifically, the wife submits that the failure of the circuit court to advise her that the issue of future alimony would be litigated deprived her of notice and denied her the opportunity to show facts which would have entitled her to a larger sum of alimony.
However, in view of the circumstances of this case we do not believe that the wife was unfairly denied an opportunity to present evidence which would have justified an increase in her future alimony income.
Our recent decision in Nabors v. Nabors, Ala.Civ.App., 354 So.2d 277 (1978) concerned the establishment of arrearages in regard to alimony and child support. In that case we were confronted with the question of whether a trial court could allocate a portion of a lump-sum alimony and child support award solely for child support. We said that the critical issue was not whether the trial court had modified past due installments of alimony and child support, but rather, whether the court, in ascertaining arrearages, had the authority to give the husband credits for the period after which the child became self-supporting, and on that basis reduce the amount in arrears with respect to the lump-sum alimony and child support award. As Nabors v. Nabors indicates, the father may receive a credit for child support made after the child has become self-supporting and his ability to receive this credit would be meaningless in a lump-sum alimony and child support award situation unless the trial court could allocate proportionate amounts as alimony and child support. Likewise, in the case at bar we conclude that the trial court was not, in actuality, modifying the alimony and child support award but was merely giving credit where credit was properly obtainable; that is, the court allocated a portion of the original "lump-sum" award as child support and then reduced the amount in arrears on that award by permitting the father to receive credit for the sum designated as child support for the period during which the child was no longer dependent on him for support.
Furthermore, we are not convinced that the wife was unaware that such a decision would be made by the trial court. Her petition specifically stated that the daughter was a minor but she also knew that this child had married and was no longer in need of support from the father. Accordingly, we are not convinced that the wife was prejudiced by the method used by the trial court in establishing the arrearages which she requested to be ascertained.
The court's action in this case did not modify or reduce the amount the wife had a right to receive as alimony. The divorce judgment originally provided her with $40 a week for alimony and child support. Since her child subsequently became self-supporting the wife is now entitled to only that portion of the original judgment which the court deemed to be for alimony. Nonetheless, we would note that awards of periodic alimony are never final and are amenable to change at any time depending on changed conditions.
In addition, there is nothing in the record to indicate that the attorney who *351 represented the wife objected to the modification of the original decree or complained to the circuit court that his client had been deprived of her constitutional right to due process by the court's failure to notify her that it planned to revamp its original decree. And it is well settled that the trial court will not be reversed on the basis of a matter not presented to that court or upon which that court had no opportunity to rule. Rule 4, ARAP and committee comments thereto.
The next issue presented for our review involves the wife's claim that the circuit court erroneously modified the property settlement which it had made in its earlier decree. Specifically, the wife contends that the circuit court in its original judgment gave the wife and child possession of the parties' former residence and ordered the husband to make the monthly mortgage payments on the home until the wife's remarriage, at which time the home would be sold and the proceeds divided between the parties. The wife submits that this provision constituted a property settlement (or an award of alimony in gross) and that it cannot be modified under the law of this state. We disagree.
The original decree of divorce provided that the wife and her child were entitled to possession of the family residence and that the husband was obligated to pay the monthly mortgage notes thereon; the decree continued by stating, "but in the event the Complainant [wife] shall remarry, then the home place shall be sold, and after the costs incident to the sale and the mortgage balance thereon have been paid, the net balance shall be divided equally between the parties."
We believe that the original divorce decree ordering the husband to pay the mortgage installments on the couple's former residence did not constitute a property settlement. The divorce decree indicates that the parties were to sell the property and divide the proceeds between them. The wife and child were given the right to remain in possession of the home until the wife remarried and the husband was ordered to pay the monthly mortgage installments on the house until the balance of the mortgage no longer existed. But if the wife did subsequently remarry, both husband and wife would contribute to the satisfaction of the mortgage indebtedness. As a consequence of the contingency of the wife's remarriage it is impossible to ascertain if the husband would ultimately pay the entire mortgage indebtedness or only a portion thereof. Had the court in its original judgment of divorce intended that the mortgage payments be used as a device to complete an equitable distribution of the property between the parties, it is difficult to imagine why that obligation would have been dependent upon a contingency that might or might not occur in the future thus subjecting the value or total of the husband's obligation to uncertainty in terms of dollars and cents. Alexander v. Alexander, 526 P.2d 934 (Okl.1974).
We held in McEntire v. McEntire, Ala. Civ.App., 345 So.2d 316 (1977), that an award is alimony in gross or a property settlement when the amount of payment is fixed. The circuit court's original divorce decree did not meet this requirement.
Although an outstanding mortgage indebtedness is a fixed amount since the indebtedness of a mortgage may be calculated with certainty, the husband in the present case was not directed to satisfy the entire mortgage debt. He was only obligated to pay off the balance of the mortgage if his wife did not remarry before the debt had been liquidated. However, if she did remarry before the balance of the mortgage was paid, she would provide one-half of the cost of satisfying the mortgage indebtedness. Consequently, no one could predict the extent of the husband's obligation in regard to the mortgage on his former home. Therefore, we conclude that the payment of the monthly mortgage installment on the parties' property was not a part of a division of property or an award of alimony in gross. The monthly payments which the husband was ordered to make by the judgment of divorce were a supplement to the periodic alimony payments *352 described in the decree, and as such were modifiable upon a showing of changed circumstances. See Alexander v. Alexander, supra.
Moreover, in discussing the distinctions between alimony in gross and periodic alimony, the supreme court in Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974) said that: "`periodic alimony' is an allowance for the future support of the wife payable from the current earnings of the husband" and "[w]hen the type of the award or awards intended is not particularly specified, the source of payment and the purpose are of prime importance."
In the instant case the original award was not specified as being either alimony in gross or periodic alimony, hence the source and purpose of payment is an important criteria in establishing what type of award was intended by the trial court.
Based on the record before us, it would not have been unreasonable for the trial court to conclude that payment of the monthly alimony and child support obligation and the payment of the mortgage installment each month would come from the husband's current earnings. Nor would it be unreasonable for the trial court to have concluded that the payment of the mortgage installments was necessary for the current support and maintenance of the wife and child while the wife remained unmarried. Indeed, such a construction of the divorce judgment may well have been warranted in view of the fact that both wife and child were to retain possession of the family residence. Thus, the judgment would be subject to modification or change for the purpose of implementing the welfare or support of the child. Haney v. Haney, 50 Ala.App. 79, 277 So.2d 356 (1973). Consequently, we hold that the requirement that the husband pay the mortgage payments was a part of the periodic alimony and child support award. This being so, that portion of the decree dealing with the payment of mortgage installments could be modified; however, the court could not modify the payments which had matured prior to the wife's petition to establish arrearages solely on the basis that the husband lost his interest in the property once held jointly by the parties. On the facts before us any change in regard to the mortgage payments was entitled to prospective effect only. Whitt v. Whitt, 276 Ala. 685, 166 So.2d 413 (1964); Wood v. Wood, 275 Ala. 305, 154 So.2d 661 (1963); and Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 (1963).
In the present case the husband lost his interest in the couple's jointly owned property as a result of his refusal to pay his former wife the amounts mandated in the original divorce decree. However, the circuit court amended the original decree in the order it entered on the wife's motion for a judgment of arrearage. The court held that since the husband did not own any interest in the property in question he was no longer responsible for the monthly mortgage payments; the court further concluded that the husband's obligation to provide such payments terminated on the date that the wife purchased his interest in the property. This latter action erroneously modified the court's earlier judgment awarding the wife a monthly housing supplement to her periodic alimony and child support payments. The trial court had no authority to retroactively apply its subsequent modification of the mortgage payments provided for in its original decree to the date that the husband lost his interest in the jointly owned property. Payments arising after that date constituted outstanding judgments as they became due. Accordingly, the trial court could not eliminate the wife's right to collect these judgments by retroactively modifying the monthly housing supplement to the periodic alimony and child support payments.
The final issue for our review involves the wife's assertion that the circuit court incorrectly computed the amount of arrearage. In view of the trial court's failure to consider the past due mortgage payments in its judgment on the wife's action to determine the amount of the arrearage owed to her by her former husband, it is apparent that the court incorrectly computed *353 the amount of payments which were in arrears.
For the error committed, the judgment of the trial court is reversed and the cause remanded.
Appellant has requested that we award her a reasonable sum of money so that she might compensate her attorney for his services on this appeal. Due to the apparent financial circumstances of the parties in this proceeding and the fact that no attorney's fee was awarded below, we decline to award such a fee. Furthermore, we feel that we are also precluded from awarding an attorney's fee in the present case due to the provisions of Title 30, chapter 2, section 54, Code of Alabama 1975. See Carnes v. Shores, 55 Ala.App. 608, 318 So.2d 305 (1975).
REVERSED AND REMANDED.
WRIGHT, P. J., and HOLMES, J., concur.


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 97-7199

UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus

KEVIN RODELL JOHNSON, a/k/a Chucky,

                                            Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CR-95-319-A)

Submitted:   December 11, 1997         Decided:     December 31, 1997

Before HALL and WILLIAMS, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Kevin Rodell Johnson, Appellant Pro Se. Leslie Bonner McClendon,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant appeals the district court's order denying his

motion for a new trial under Fed. R. Crim. P. 33. We have reviewed

the record and the district court's opinion and find no reversible

error. Accordingly, we affirm on the reasoning of the district

court. United States v. Johnson, No. CR-95-319-A (E.D. Va. July 23,
1997). We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           AFFIRMED

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