Don A. Bobo v. Jennifer L. Womble ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00730-CV

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Don A. Bobo, Appellant

v.

Jennifer L. Womble, Appellee

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FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 91-286-F368, HONORABLE BURT CARNES, JUDGE PRESIDING

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Don Bobo appeals from a child support enforcement order finding him liable for unpaid child support. Bobo contends that the district court erred in holding (1) he was not entitled to a credit or offset for prepayment of child support, and (2) he waived his claim for a credit or offset for prepaid child support. We will affirm the district court's order.

Background

Bobo and Jennifer Womble were divorced in September 1991. They have one child. The divorce decree named Womble managing conservator and Bobo possessory conservator. The decree provided that Bobo would pay to Womble $50 per week (or $216 per month) as child support beginning September 6, 1991. The decree required Bobo to make all child support payments through the child support registry of the district clerk's office of Williamson County.

On September 2, 1992, at a time when Bobo was current in his payments, Womble moved to modify child support requesting (1) an increase in Bobo's support payments, and (2) that Bobo provide and pay for health insurance for their child. On January 20, 1994, without a court order, Bobo voluntarily increased his payments and began paying $65 per week into the child support registry rather than the court-ordered $50 per week. After three years, on November 23, 1994, the court signed an agreed order of modification whereby Bobo would provide and pay for health insurance for their child. This agreed order did not address any increase in child support payments. Although Bobo was obligated to pay only $50 per week in court-ordered child support, he continued to pay $65 per week into the district clerk's child support registry.

On September 22, 1998, Womble again moved to modify child support payments, requesting an increase in Bobo's monthly payments; Bobo was current in his child support payments as of that date. Womble and Bobo reached an agreement and on January 28, 1999, the district court signed an order requiring Bobo to pay $638 per month as child support beginning October 1, 1998. ⁽¹⁾

On April 23, 1999, Womble filed a motion for enforcement of child support. She alleged that Bobo violated the January 28 order by failing to pay $638 per month as child support since October 1998. She alleged that Bobo's total arrearage at the time of filing the motion was $1,890. She requested that the court reduce the arrearage to a judgment plus interest, hold Bobo in contempt, and order Bobo to pay her attorney's fees. Bobo answered the motion asserting a general denial and requesting that the court impose sanctions against Womble for a frivolous and harassing filing.

Following a hearing, the district court signed an order on August 26, 1999, holding that Bobo was in arrears $2,379.23. The district court found that Bobo had paid the following: (1) October 1998, $216; (2) November 1998, $216; (3) December 1998, $216; (4) January 1999, $420; (5) February 1999, $0; and (6) March 1999, $360. The court noted that Bobo did not plead or prove an affirmative defense to non-payment of the child support the January 1999 order required him to pay. Further, after determining that Bobo intentionally failed to comply with the January order, the court held him in contempt. The court allowed Bobo 48 hours to pay Womble the back child support and $1,000 as attorney's fees to avoid the contempt finding. Bobo paid the back child support and attorney's fees into the registry of the court pending this appeal.

The district court filed findings of fact and conclusions of law. The court found that (1) Bobo paid $50 per week through the district clerk's office as originally ordered from September 6, 1991 through January 20, 1994; (2) Womble approached Bobo about going to court and seeking an increase in child support and Bobo agreed, informally, to pay Womble $65 per week beginning January 20, 1994; (3) Bobo paid $65 per week through the district clerk's office from January 20, 1994 through September 28, 1998; (4) at the time of the informal increase Bobo's income had increased to the point that the presumed statutory guidelines for child support exceeded $65 per week; (5) by September 28, 1998, Bobo had paid through the district clerk's office $3,610 more child support than he was required to pay by court order; (6) this sum was less than the support that would have been required had Womble earlier pursued a court-ordered modification of child support payments due to Bobo's increased salary; (7) Womble moved to modify child support payments on September 22, 1998, and the court signed an agreed order which increased Bobo's child support payments to $638 per month in accordance with the statutory guidelines; (8) before signing the agreed order on September 22 Bobo did not assert a credit for overpayment of $3,610; and (9) Bobo believed that by including the phrase, "The Court does not by this Order enter any finding or any delinquencies or credits toward the child support obligation which may exist in this cause" in the January 28, 1999 order he could subsequently claim a credit for the informally agreed child support overpayments of $3,610. The district court concluded that Bobo violated the January 1999 order by failing to pay monthly child support of $638 per month since October 1998. Additionally, the district court concluded that based on the phrase in the January 1999 order, Bobo waived any claim for a credit.

Discussion

In his first issue, Bobo contends that the district court erred in holding he was not entitled to claim a credit or offset for prepayment of child support. Bobo contends that adding up all of the child support payments he made through the district clerk's registry he had paid $24,551.85. The total amount due, he argues, under the original divorce decree and the January 1999 order was $23,390. Bobo contends, consequently, he has paid more child support than he owed and he is entitled to a credit or offset for the difference. He argues that the court was required to give him credit for the overpayments he made before the January 1999 order. We disagree.

First we note that Womble and Bobo informally agreed that Bobo would pay $65 per week as child support. Parents of minor children, however, do not have the right or power to effect a modification of a court order regarding child support without approval of the court. In re McLemore, 515 S.W.2d 356, 357 (Tex. Civ. App.--Dallas 1974, no writ). It is the court's duty "to protect the interests of children and its decrees made in performance of that duty may not be thus diluted." Id. In this case, consequently, without a court order approving Womble's and Bobo's out-of-court agreement that Bobo would pay $65 per week as child support their informal agreement is not enforceable.

There are instances when a child support obligor may plead a credit or an offset as an affirmative defense to an enforcement action. A money judgment for an arrearage rendered by a district court may be subject to a counterclaim or offset as provided by chapter 157 of the Family Code. See Tex. Fam. Code Ann. § 157.262(b) (West 1996). The Family Code provides that a child support obligor may plead as an affirmative defense to a motion for enforcement of child support that the obligee voluntarily relinquished to the obligor actual possession and control of a child for a time period in excess of any court-ordered periods of possession and during that time the obligor supplied support for the child. See Buzbee v. Buzbee, 870 S.W.2d 335, 338-40 (Tex. App.--Waco 1994, no writ); Tex. Fam. Code Ann. § 157.008 (a),(b) (West 1996).

Bobo did not plead an affirmative defense and there is no indication in the record that the section 157.008 statutory affirmative defense is at issue. Indeed, Bobo did not provide nor have we found authority for the proposition that previously made, excessive contributions for child support must be credited by the trial court in a child support enforcement action. A parent may always voluntarily provide more support for a child than is required by court order. See Lewis v. Lewis, 853 S.W.2d 850, 854 (Tex. App.--Houston [14th Dist.] 1993, no writ) (citing McLemore, 515 S.W.2d at 358). "Voluntary payments made in fulfillment of the common law obligation are not necessarily to be offset against the statutory obligation enforced by a court order." McLemore, 515 S.W.2d at 358. We do not accept Bobo's proposition that an obligation to make child support payments is somehow like a commercial installment contract for which prepayments can be taken into account. See Norman v. Norman, 683 S.W.2d 548, 551 (Tex. App.--Fort Worth), rev'd, 692 S.W.2d 655 (Tex. 1985) (reversed as court of appeals had no jurisdiction over order finding party not in contempt). Bobo made the $15 weekly overpayments from January 1994 until October 1998 under the original order, before the court modified its ruling and ordered him to begin paying an increased sum as child support. When Bobo made the weekly $15 overpayments he never once designated the overpayment portion as child support to be applied in the future. There is no evidence to show that the weekly overpayments were anything but voluntary contributions of support by a father for his child. We hold that Bobo's gratuitous decision to pay more child support than he was required to do did not alter his obligation to comply with the later court order requiring him to pay future support of a certain sum on a date certain.

Once the January 1999 order was signed, Bobo was liable to pay as future child support $638 on the first day of each month beginning October 1, 1998. Because Bobo failed to pay this monthly sum, he was in arrears for each month he paid less than the court-ordered $638 amount. The district court did not err in rendering a money judgment for Bobo's arrearage of $2,379.23. Bobo's first issue is overruled.

In his second issue, Bobo contends that the district court erred in holding that he waived his claim of a credit or offset for overpayment of child support. Because we have determined that Bobo voluntarily overpaid his child support and that he is not entitled to a credit or offset for any overpayment, it is unnecessary for us to address his second issue. Bobo's second issue is overruled.

We affirm the district court's order.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Affirmed

Filed: July 13, 2000

Do Not Publish

1.   The court increased the support payments retroactively because October 1998 was the first month after Womble filed the motion to modify. Additionally, the $638 amount was within the applicable statutory child support guidelines. See Tex. Fam. Code Ann. § 154.125 (West 1996).

a modification of a court order regarding child support without approval of the court. In re McLemore, 515 S.W.2d 356, 357 (Tex. Civ. App.--Dallas 1974, no writ). It is the court's duty "to protect the interests of children and its decrees made in performance of that duty may not be thus diluted." Id. In this case, consequently, without a court order approving Womble's and Bobo's out-of-court agreement that Bobo would pay $65 per week as child support their informal agreement is not enforceable.

There are instances when a child support obligor may plead a credit or an offset as an affirmative defense to an enforcement action. A money judgment for an arrearage rendered by a district court may be subject to a counterclaim or offset as provided by chapter 157 of the Family Code. See Tex. Fam. Code Ann. § 157.262(b) (West 1996). The Family Code provides that a child support obligor may plead as an affirmative defense to a motion for enforcement of child support that the obligee voluntarily relinquished to the obligor actual possession and control of a child for a time period in excess of any court-ordered periods of possession and during that time the obligor supplied support for the child. See Buzbee v. Buzbee, 870 S.W.2d 335, 338-40 (Tex. App.--Waco 1994, no writ); Tex. Fam. Code Ann. § 157.008 (a),(b) (West 1996).

Bobo did not plead an affirmative defense and there is no indication in the record that the section 157.008 statutory affirmative defense is at issue. Indeed, Bobo did not provide nor have we found authority for the proposition that previously made, excessive contributions for child support must be credited by the trial court in a child support enforcement action. A parent may always voluntarily provide more support for a child than is required by court order. See Lewis v. Lewis, 853 S.W.2d 850, 854 (Tex. App.--Houston [14th Dist.] 1993, no wr