in the Interest of T.G., D.G., A.G., K.G. and S.G. ( 2002 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00090-CV
In the Interest of T.G., D.G., A.G., K.G. and S.G.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 466,087, HONORABLE ANGELITA MENDOZA WATERHOUSE,
TITLE IV-D MASTER PRESIDING
Appellant George Gage appeals from the court master=s confirmation that he owes
Savannah Gage $35,714.61 in unpaid child support for their five now-grown children. He complains on
appeal that the court master erred by failing to rule on certain motions. He also contends that the court
master should have dismissed the motion to confirm because it was filed after the court lost jurisdiction, that
laches and estoppel bar the motion, and that the divorce decree does not support requiring these payments.
We will affirm the judgment.
BACKGROUND
The Gages were divorced by decree signed August 8, 1989. The decree recites that they
are parents of five children: T.G., born May 3, 1972; D.G., born July 26, 1974; K.G., born May 18, 1977;
A.G., born August 27, 1979; and S.G., born December 7, 1982. The court ordered appellant to pay $200
in monthly child support until
the date of the earliest occurrence of one of the following events:
1. Any child reaches the age of 18 years, provided that if the child is fully enrolled in an
accredited primary or secondary school in a program leading toward a high school
diploma, the periodic child-support payments shall continue to be due and paid until
the end of the school year in which the child graduates;
2. Any child marries;
3. Any child dies;
4. Any child=s disabilities are otherwise removed for general purposes;
5. The children are otherwise emancipated;
6. Further order modifying this child support.
The youngest child=s eighteenth birthday was December 7, 2000, and the standard progression would make
her high school graduation expected in May 2001.
In October 1994, the court confirmed that appellant was $12,323.07 in arrears on child
support. The court ordered appellant=s employers to withhold up to $250 per month from his pay until
February 1, 2004. The withholding would be credited $200 for current child support and $50 for
arrearages until May 2001. Thereafter, the entire amount withheld would be credited against remaining
arrearages.
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The children=s mother filed this motion to confirm arrearages on August 7, 2001, attaching
to her motion a report from the attorney general on appellant=s payment history. According to the report,
appellant made some payments in 1995-1997, but did not regularly make the required payment. The report
indicates a total of $35,491.75 past due child support owed as of August 6, 2001.
Citing his imprisonment, appellant filed motions for continuance of the September 12, 2001
hearing date; he later requested a bench warrant or a hearing by conference call. The court master held a
hearing on the motion to confirm on October 31, 2001. The judgment recites that appellant Adid not appear
but was represented by Alfredia Miller, pursuant to a power of attorney.@ The court master confirmed that
appellant owed $35,714.61 in overdue child support payments and interest thereon. 1
Appellant filed several documents after the judgment date. He filed a motion to dismiss and
a letter requesting appointment of an attorney ad litem on November 6, 2001; the trial court=s docket sheet
notes that the letter was dated October 24, 2001. In response to the judgment, appellant filed a motion for
new trial, a request for findings of fact and conclusions of law, and a notice of past due findings of fact and
conclusions of law. The court master never expressly ruled on any of these motions and did not prepare
findings of fact or conclusions of law.
Appellant then filed this appeal.
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The report indicated interest accruing on the arrearages at the rate of $222.86 per month in 2001.
The amount confirmed ($35,714.61) is equal to the arrearages reported on August 6, 2001 ($35,491.75)
plus one month of interest ($222.86).
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DISCUSSION
Appellant complains about many acts and omissions by the court master. He complains that
the court master failed to rule on his motions, that the court lacked jurisdiction because the motion for
confirmation was filed too late, that this proceeding was barred by laches and estoppel, and that the divorce
decree did not impose the obligations found.
Did the court err by failing to rule on motions?
Appellant contends that the court=s failure to rule on his motions denied him a meaningful
opportunity to be heard. Appellant refers to the trial court docket sheet to list the motions that he complains
the court neglected. Listed there are motions for continuance, dismissal, appointment of an attorney, and for
making of findings of fact and conclusions of law. We find that appellant has not shown that the court=s
failure to rule expressly on these motions denied him the opportunity to be heard.2
Appellant has not shown any harm from the failure to rule expressly on his motions for
continuance. After he filed his motions for continuance, the court delayed the hearing from September 12,
2001 until October 31, 2001. Because appellant requested a sixty-day delay, the court implicitly denied his
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Appellant complains that the court failed to provide him with a copy of the judgment in this case,
hampering his ability to present his appeal. Nevertheless, appellant timely perfected his appeal, and
attached the October 2001 judgment for child-support arrearage as Exhibit C to his brief. Any failure to
provide appellant the judgment did not prevent him from getting a copy or timely appealing.
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request in part by holding the final hearing before sixty days elapsed. There is an indication in the briefs that
appellant granted Alfredia Miller power of attorney to attend the hearing on his behalf and request a
continuanceCa request that was denied. Miller then apparently participated in the hearing and signed the
judgment on his behalf. Appellant does not show any evidence or argument suppressed by the court
master=s refusal to delay the hearing further. Nor does he show how the refusal probably caused the
rendition of an improper judgment or probably prevented him from properly presenting this appeal to us;
thus, he has not shown reversible error. See Tex. R. App. P. 44.1(a).
Similarly, appellant has shown no harm from the failure to rule expressly on his motion to
dismiss. The court did not rule on the motion at the hearing because the motion, dated October 30, 2001,
was not filed until November 6, 2001. Appellant has presented his dismissal arguments to this Court. We
will consider those contentions on appeal. The failure to rule expressly did not prevent him from presenting
those claims to this Court.
The court master also implicitly denied the motion for appointment of an attorney ad litem
for appellant by holding the hearing without appointing an attorney. Motions to confirm arrearages are not
among the situations in which courts are required to appoint attorneys ad litem for parents. See Tex. Fam.
Code Ann. ' 107.013 (West 2002). Nor does appellant point to any law requiring such appointment. He
also indicates that the court master=s inaction prevented him from having meaningful access to the court
because he was not able to participate in the hearing. But inmates are not guaranteed the right to appear in
person in civil causes if they can participate meaningfully by affidavit, deposition, telephone, or other means.
See Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex. App.CBeaumont 1994, no writ). Appellant
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does not urge on appeal that he should have been allowed to appear personally or by telephone, does not
allege how the court prevented him from participating by affidavit or deposition, and does not allege or
show how such participation would not have been meaningful. He has participated at trial and here by filing
documents. He did not make an evidentiary-based argument below (e.g., that he made uncredited
payments) and does not show that he could not have done so through documentary evidence. The court
master was not required to appoint an attorney for him, and appellant has not shown that the failure to do so
prevented him from presenting his case.
Finally, the court master=s failure to file findings of fact and conclusions of law despite
appellant=s request and reminder is harmless. A trial court=s failure to make requested findings of fact and
conclusions of law after timely reminder is harmful error unless Athe record before the appellate court
affirmatively shows that the complaining party suffered no injury.@ Cherne Indus. v. Magallanes, 763
S.W.2d 768, 772 (Tex. 1989). The record shows that this proceeding was intended to confirm the amount
of child support appellant owes. The court master=s judgment plainly sets out the basis for the award (an
order that he pay and his failure to pay), the total amount owed, and the amount of the monthly payment
due. Appellant has challenged whether the original decree supports this award. We find no injury to
appellant in the court=s failure to incorporate its findings and conclusions into a separate document entitled
Afindings and conclusions.@
Did the court have jurisdiction?
Appellant contends that the court master erred by not dismissing this case because the
children=s age deprived the court of jurisdiction. Appellant contends that Texas Family Code section
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157.005(b) bars the court from hearing any action brought more than four years after the date a child
becomes an adult or on which the child support obligation terminates. Appellant, however, relies on the
language of the statute before it was amended in 1999, two years before this action was filed. See Act of
April 6, 1995, 74th Leg., R.S., ch. 20, ' 1, sec. 157.005(b), 1995 Tex. Gen. Laws 113, 177, amended
by Act of May 27, 1999, 76th Leg., R.S., ch. 556, ' 15, 1999 Tex. Gen. Laws 3058, 3062.
Arrearages now may be confirmed Auntil the date all current child support and medical
support and child support arrearages, including interest and any applicable fees and costs, have been paid.@
Tex. Fam. Code Ann. ' 157.005(b) (West 2002). The current statute permits confirmation of arrearages
for as long as the arrearages exist, even for children regarding whom arrearages could not have been
confirmed in 1999 before the statute was amended. See In re S.C.S., 48 S.W.3d 831, 833-35 (Tex.
App.CHouston [14th Dist.] 2001, pet. denied); see also In re A.D., 73 S.W.3d 244, 249 (Tex. 2002).
Because the statute is jurisdictional, not limitational, the 1999 amendment conferred jurisdiction without
removing a vested defense. See S.C.S., 48 S.W.3d at 833-34; see also A.D., 73 S.W.3d at 249. The
court master did not err by refusing to dismiss this motion to confirm arrearages based on the children=s
ages.
Is the motion to confirm barred by laches and estoppel?
Appellant complains that the court master erred by not granting his motion for new trial and
to dismiss because Savannah Gage was barred by laches and estoppel from seeking to confirm the
arrearages after all the children turned eighteen. He contends that this confirmation proceeding is part of a
conspiracy among Savannah Gage, their eldest daughter, and the daughter=s lawyer to raid appellant=s
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parents= estate. He notes that none of the children are minors or get support from Savannah Gage, and
contends that her motion to confirm past due child support is a pretext for depriving him of his inheritance.
Appellant=s allegations do not square with the record. Savannah Gage is not seeking
support for the adult children, but for the period when they were in her care as minors and appellant was
bound to pay $200 per month for their support. Nor is this her first motion for confirmation of child-
support debt. In 1994, after five years under the decree, she obtained a confirmation of his debt. Nor does
he show how alleged malfeasance by his daughter regarding his parents= estate absolves him of his failure to
honor his child-support obligation; allegations regarding the estate are more properly brought in a
proceeding regarding the estate.
The court master properly rejected appellant=s assertion that Savanna Gage=s claim is
barred by laches. AIn order to prevail on a claim of laches, a party must show (1) there was an
unreasonable delay by the other party in asserting a legal or equitable right, and (2) the party asserting
laches made a good faith change in position to his detriment because of the delay.@ Caldwell v. Barnes,
975 S.W.2d 535, 538 (Tex. 1998). After the court confirmed his debt in 1994, appellant made some
payments during the next three years, but then made no payments over the last three years of his obligation.
Savannah Gage sought confirmation of the debt eight months after the last child turned eighteen and the
principal of the debt stopped accruing. The amendment of the confirmation statute to permit jurisdiction
over confirmation so long as a debt exists indicates a long period of reasonableness to bring a confirmation
motion. See Tex. Fam. Code Ann. ' 157.005(b). Not only is there no unreasonable delay, appellant has
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not alleged how he in good faith detrimentally changed his position because Savannah Gage failed to seek
confirmation of his debt sooner.
Appellant=s estoppel claim also fails. A party asserting estoppel must establish that
someone made a false representation or concealment of material facts, with knowledge (actual or
constructive) of those facts, with the intention that a party without knowledge or the means of knowledge of
those facts should act on the statement, and that the party to whom it was made relied or acted on it to his
prejudice. Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); LaRue v. LaRue, 832 S.W.2d 387,
392 (Tex. App.CTyler 1992, no writ). Appellant did not allege that Savannah Gage made any misleading
statement or concealment about the unpaid child support; his complaint that all the children are grown is
apparent from the face of the record and is neither concealed nor misrepresented. Further, he did not allege
how he detrimentally relied on any statement or concealment regarding his child-support debt.
Finding no allegation or support in the record for necessary elements of appellant=s laches
and estoppel claims, we conclude that the court master did not err by failing to grant appellant=s motions to
dismiss and for new trial on these bases.
Does the decree support the arrearage confirmed?
Appellant contends that the 1989 decree does not support the accumulation of arrearages.
He notes that the decree required him to pay $200 monthly child support Auntil the date of the earliest
occurrence of one of the following events: 1. Any child reaches the age of 18 years . . . .@ He contends
that his obligation to pay ceased on May 3, 1990, when the eldest child turned eighteen. Appellant=s
argument ignores the parties= conduct since the signing of the decree and, more critically, ignores the 1994
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orders confirming arrearages and requiring withholding of wages. Until the contest of this motion to
confirm, the record indicates that appellant, Savannah Gage, the State, and the courts have interpreted the
language of the decree to mean that appellant=s child-support obligation lasted through the youngest child=s
graduation from high school. In 1994, the court confirmed arrearages that accumulated from 1989 through
1994. Appellant did not appeal that order. From 1995 through 1997, appellant made payments that were
applied to both current support obligations and arrearages. All parties proceeded as if the $200 per month
obligation persisted beyond 1990. The current motion to confirm is based on child support accruing until
2001.
Appellant=s failure to appeal the 1994 orders prevents him from complaining about the
duration of his obligation in this appeal. A judgment containing orders for future child support obligations
must be appealed in the same manner as any other final judgment. See In re Marriage of Vogel, 885
S.W.2d 648, 650-51 (Tex. App.CAmarillo 1994, writ denied); see also Davis v. Boone, 786 S.W.2d 85,
87 (Tex. App.CSan Antonio 1990, no writ). Notices of appeal are due (including maximum extension of
the time period) no later than 105 days after judgment is signed. See Tex. R. App. P. 26 (formerly Tex. R.
App. P. 41). An attempt to avoid or seek relief from the provisions of a judgment in a proceeding not
instituted for the purpose of correcting, modifying, or vacating the judgment is a collateral attack on the
judgment. Jones v. Jones, 900 S.W.2d 786, 787-88 (Tex. App.CSan Antonio 1995, writ denied).
Judgments are subject to collateral attack if they are void, not merely voidable or erroneous. See id. at
788; see also Heard v. State, 204 S.W.2d 344, 346 (Tex. 1947). A judgment is void only when the court
rendering the judgment did not have jurisdiction over the parties, jurisdiction over the subject matter,
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jurisdiction to enter the judgment, or capacity to act as a court. Cook v. Cameron, 733 S.W.2d 137, 140
(Tex. 1987). If a final judgment is based on erroneous holdings as to substantive law, it is not void, but
merely voidable, and cannot be collaterally attacked. See id.; Berry v. Berry, 786 S.W.2d 672, 673 (Tex.
1990); Shoberg v. Shoberg, 830 S.W.2d 149, 152 (Tex. App.CHouston [14th Dist.] 1992, no writ).
Appellant did not attack the 1994 order by direct appeal, writ of error, or bill of review. It is final, and
appellant has not shown that the court lacked jurisdiction or the capacity to act.
The child-support debt confirmed is supported by the obligations imposed by the 1994
orders, regardless of any deficiencies in the 1989 decree. The order confirming the debt owed in 1994 is
not void and is no longer appealable. The order that $250 per month be withheld through February 1,
2004Cincluding $200 in child support through May 2001 with the balance dedicated to payment of child-
support arrearagesCis not void and is no longer appealable. Appellant cannot successfully challenge orders
that are not void more than six years after they become final.
CONCLUSION
Having resolved all issues on appeal in favor of the judgment, we affirm the judgment.
Mack Kidd, Justice
Before Justices Kidd, Patterson and Puryear
Affirmed
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Filed: December 12, 2002
Do Not Publish
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