in the Interest of H.G-J., A.G.-J., & K.G.-J., Children , 2016 Tex. App. LEXIS 11902 ( 2016 )

Affirmed as Modified and Opinion filed November 3, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00551-CV
IN THE INTEREST OF H.G-J., A.G.-J., & K.G.-J., CHILDREN
On Appeal from the 311th District Court
Harris County, Texas
Trial Court Cause No. 2004-28337
OPINION
The Office of the Attorney General of Texas (OAG) appeals from the trial
court’s final order in a suit to modify child support and possession. The OAG
challenges (1) the portion of the trial court’s order requiring the OAG to disburse
child support funds in the OAG’s possession to pay the appointed amicus
attorney’s fees and (2) the trial court’s refusal to enter an enforceable judgment for
child support arrearage. We modify the trial court’s final order to remove the
requirement that the OAG disburse funds to the amicus attorney and affirm the
order as so modified.
Background
In May 2004, the OAG initiated a suit affecting the parent-child relationship,
requesting the court order the Father of minor children H.G.-J., A.G.-J. and K.G.-J.
to pay ongoing and retroactive child support.1 The trial court entered an order
which, among other things, appointed both parents as joint managing conservators,
granted Mother the exclusive right to designate the children’s primary residence,
and ordered Father to pay child support. In August 2013, Mother filed a motion
for enforcement of possession and access, alleging Father failed to return the
children when his period of visitation ended. At that time, the trial court appointed
an amicus attorney to represent the children’s interests and “to investigate this case
further for the court.” The court also orally denied Mother’s writ of habeas corpus.
In October 2013, Father filed the present action to modify the parent-child
relationship, seeking to be appointed the children’s sole managing conservator with
the right to receive child support. The court again appointed the same amicus
attorney. On March 18, 2015, the OAG filed an “Original Answer,” in which it
entered a general denial as to Father’s pleadings and stated that it “urges that the
Court confirm any outstanding arrears, render a judgment and appropriate payout
(sic).” The OAG prayed for “all relief requested herein” as well as general relief.
Later the same day, the trial court held a hearing at which the OAG appeared
and participated. The hearing principally concerned issues regarding possession of
and access to the children, but child support also was addressed.2 During the
1
The Family Code authorizes the OAG, the state’s designated Title IV–D agency, to
enforce child support obligations and to collect and distribute support payments. See Office of
the Attorney Gen. of Tex. v. Scholer, 403 S.W.3d 859, 862 (Tex. 2013) (citing Tex. Fam. Code
§§ 231.001, 231.101(a)(5)-(6)). See generally In re Office of Attorney Gen., 422 S.W.3d 623,
627 & n.4 (Tex. 2013) (discussing goals of Title IV-D).
2
According to the hearing transcript, the court at some point had rendered an order that
terminated Father’s child support obligation as of January 30, 2014.
2
hearing, the OAG briefly cross-examined Father regarding his child support
arrearage and introduced a Financial Activity Report showing Father’s child
support payments and balance over time. Father testified that the children had
been living with him since August 16, 2013, and he requested the court give him a
“possession credit” against his child support obligation running from that date
through the time of the hearing.
At the conclusion of the hearing, the judge orally pronounced judgment, in
relevant part, ordering Mother to pay child support and awarding the amicus
attorney $3,000 in fees, $1,500 to be paid by each parent. The judge further stated
that the OAG would be required to disburse the child support funds it had on hold,
purportedly $1,287.50, to pay towards Father’s obligation for the amicus attorney’s
fees. The trial court’s final order was in keeping with the oral rendition.3 The
court’s order further stated that in accordance with the OAG’s Financial Activity
Report, Father had an arrearage in his child support obligation of $1,600.41, but
the court did not order Father to pay the amount in arrearage.
The OAG subsequently filed a combined motion for reconsideration and
motion for new trial, arguing, among other things, that the trial court did not have
jurisdiction to order the OAG to disburse funds to the amicus attorney and
complaining about the trial court’s failure to enter a judgment on Father’s child
support arrearage. The OAG now raises five issues on appeal, asserting (1) the
OAG was a party in the proceedings below; (2) under Texas Government Code
section 22.002(c), the trial court lacked jurisdiction to order the OAG to disburse
funds to the amicus attorney; (3) the trial court also lacked such jurisdiction
3
At the conclusion of the hearing, the parties were unclear about the relief they were
seeking. The trial judge encouraged the parties to reach an agreement regarding the funds “on
hold” and other matters. In the absence of such an agreement, the trial court announced its
intention as stated above.
3
pursuant to the separation of powers doctrine in the Texas Constitution; (4) even
assuming the trial court had jurisdiction to do so, it abused its discretion in
ordering the disbursement; and (5) the trial court erred in refusing to render an
arrearage judgment.4
Disbursement to Amicus
We begin by addressing the OAG’s second issue, challenging the trial
court’s jurisdiction under Government Code section 22.022(c) to require the OAG
to disburse collected child support funds to the amicus attorney.5 That section
provides:
Only the supreme court has the authority to issue a writ of mandamus
or injunction, or any other mandatory or compulsory writ or process,
against any of the officers of the executive departments of the
government of this state to order or compel the performance of a
judicial, ministerial, or discretionary act or duty that, by state law, the
officer or officers are authorized to perform.
Tex. Gov’t Code §22.002(c). As the Texas Supreme Court has further explained,
4
Father has filed a motion to dismiss the appeal, asserting that the issues raised herein
have been rendered moot. Specifically, Father alleges that he received a check from the OAG
for $1,287.50, the very amount the OAG was ordered to pay to the amicus attorney. Father
attached to his motion an unsworn declaration and a copy of the check. Father, however, does
not state whether he has forwarded the money he received to the amicus attorney.
The court ordered the OAG to disburse the funds to the amicus attorney, not Father.
Father offers no argument or authority supporting his contention that the OAG’s disbursement of
the funds to a different party moots the question of whether the court had authority to order the
funds disbursed to pay the amicus attorney’s fees, and we are aware of no such argument or
authority. Moreover, absent more information, the disbursement of funds to Father appears to
have no bearing on the OAG’s request for an arrearage judgment. Accordingly, we deny
Father’s motion to dismiss.
5
As to the OAG’s first issue, no one disputes that the OAG was a party in the
proceedings below. In his appellee’s brief, Father also asserts the OAG was a party. Moreover,
no one objected to the OAG’s appearance and participation at the hearing below. Regardless, the
OAG’s first issue does not complain of any ruling by the trial court. Accordingly, we do not
sustain the issue.
4
“[a]ny exception to this rule would require express statutory authorization by the
legislature naming district courts as the proper fora.” A & T Consultants, Inc. v.
Sharp, 904 S.W.2d 668, 672 (Tex. 1995); see also In re C.D.E., No. 14–14–
00086–CV, 2015 WL 452195, at *4 n.1 (Tex. App.—Houston [14th Dist.] January
27, 2015, no pet.).
The OAG’s argument is essentially that the portion of the trial court’s final
order requiring the OAG to disburse funds to the amicus attorney constituted an
injunction—a form of relief that only the Texas Supreme Court is authorized to
impose against the OAG. Because the trial court lacked jurisdiction to compel
disbursement, the OAG contends, that portion of the final order was void. We
agree.
The Attorney General is an officer of the executive department as referenced
in section 22.002(c). See Tex. Const. art. IV, § 1; A & T Consultants, 904 S.W.2d
at 672; In re C.D.E., 2015 WL 452195, at *4.6 In determining whether the trial
court’s order was an injunction, we look at its character and function. Qwest
Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000); C.D.E., 2015
WL 452195, at *4. An injunction may be either prohibitive, forbidding particular
conduct, or mandatory, requiring particular conduct. C.D.E., 2015 WL 452195, at
*4. The specific order at issue here instructed the OAG to disburse child support
funds it was holding to the amicus attorney, i.e., it required particular conduct. The
6
The dissent in A & T Consultants drew a distinction between officers of the executive
departments, as referenced in section 22.002(c), and the executive departments themselves,
although noting some uncertainty regarding who might qualify as an officer of an executive
department. 904 S.W.2d at 684. The majority in A & T Consultants did not expressly recognize
or address the distinction. See id. at 673 (noting comptroller himself was officer directed by the
Open Records Act to comply with requests). In C.D.E., we also did not expressly discuss the
distinction but held that an order compelling and enjoining the OAG violated section 22.002(c).
2015 WL 452195, at *4. We follow our prior precedent. See, e.g., Univ. of Tex. Health Sci. Ctr.
at Houston v. Crowder, 349 S.W.3d 640, 644 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
5
order was therefore in the nature of a mandatory injunction. See Qwest Commc’ns,
24 S.W.3d at 336 (holding order requiring party provide notice and perform
monitoring during construction activities was an injunction); C.D.E., 2015 WL
452195, at *4 (holding order requiring any funds levied from parent’s bank
accounts to be applied and credited against child support obligation as of a certain
date was mandatory injunction).
Moreover, because the order compelled the OAG to distribute child support
payments, “a judicial, ministerial, or discretionary act or duty that [it is] authorized
to perform,”7 the trial court lacked jurisdiction to issue the order. See Tex. Gov’t
Code § 22.002(c); see also C.D.E., 2015 WL 452195, at *5 (holding section
22.002(c) deprived trial court of jurisdiction to order levied funds to be applied and
credited as of a certain date); In re A.B., 267 S.W.3d 564, 565 (Tex. App.—Dallas
2008, no pet.) (holding section deprived trial court of jurisdiction to order the OAG
to disburse child support payments to a private company appointed by the court);
In re C.J.M.S., 269 S.W.3d 206, 208 (Tex. App.—Dallas 2008, pet. denied)
(same).
In his appellate brief, Father does not point to any statutory provision
providing the trial court with authority to order the OAG to take funds, which were
collected for disbursement to Mother for support of the children, and use them to
pay the amicus attorney’s fees. See A & T Consultants, 904 S.W.2d at 672
(explaining that any exception to section 22.022(c) requires express statutory
authorization).8 Instead, Father asserts that the trial court’s authority to issue the
7
See supra n.1.
8
In holding that the trial courts in C.D.E., A.B., and C.J.M.S. lacked jurisdiction to
compel the OAG in handling child support funds, our court and the Dallas Court of Appeals
clearly rejected the possibility that the authority granted to district courts in the Family Code
might contain an exception to section 22.002(c) in child support matters. See A & T Consultants,
904 S.W.2d at 672; C.D.E., 2015 WL 452195, at *5; A.B., 267 S.W.3d at 565; C.J.M.S., 269
6
order stemmed from the court’s inherent powers, citing Burttschell v. Sheppard,
123 Tex. 113, 69 S.W.2d 402, 403 (1934) (discussing inherent powers of courts,
including “to maintain order, to secure the attendance of witnesses to the end that
the rights of parties may be ascertained, and to enforce process to the end that
effect may be given to judgments”) (quoting Hale v. State, 55 Ohio St. 210, 45
N.E. 199, 200 (1896)). Father, however, does not explain how the trial court’s
inherent powers authorized it to issue an order that section 22.002(c) forbids it
from issuing.
We considered and rejected a similar proposition in C.D.E. In that case, we
acknowledged and distinguished our prior holding in In re Office of the Attorney
General of Texas, No. 14–08–00665–CV, 2008 WL 3833785 (Tex. App.—
Houston [14th Dist.] August 19, 2008, orig. proceeding) (mem. op.). 2015 WL
452195, at *5. In Office of the Attorney General, the OAG obtained a default
judgment against a child support obligor and then issued a lien notice to the
obligor’s bank based on the default judgment. 2008 WL 3833785, at *1. When
the trial court set aside the default judgment due to faulty service of process, the
court further ordered the OAG to extinguish the lien. Id. We held the trial court’s
order was not a writ of mandamus prohibited by section 22.002(c), explaining that
the trial court had inherent authority under Texas Rule of Civil Procedure 329b(f)
to set aside the default judgment and order a new trial. Id. at 3-4. In C.D.E., we
further explained that the court’s authority to order release of the lien in Office of
the Attorney General “flowed from its authority to set aside the improper default
judgment, which necessarily extinguished the judgment on which the OAG’s lien
was based.” 2015 WL 452195, at *5 (citing Office of the Attorney Gen., 2008 WL
3833785, at *3-4).
S.W.3d at 208. Again, we follow our prior precedent. See, e.g., Crowder, 349 S.W.3d at 644.
7
Here, the order at issue was a prohibited injunction and did not flow
necessarily from the trial court’s inherent power over its own judgments. The trial
court ordered the OAG to disburse funds to pay the amicus attorney’s fees that
were neither collected nor held for that purpose. The OAG’s authority to collect
and distribute child support is statutorily derived. See Tex. Fam. Code §§ 231.001,
231.101(a)(5)-(6); Office of the Attorney Gen. of Tex. v. Scholer, 403 S.W.3d 859,
862 (Tex. 2013). Government Code section 22.002(c) deprived the trial court of
jurisdiction to compel the OAG to disburse child support funds to the amicus
attorney. See C.D.E., 2015 WL 452195, at *5; A.B., 267 S.W.3d at 565; C.J.M.S.,
269 S.W.3d at 208.9 Accordingly, we sustain the OAG’s second issue and modify
the trial court’s final order to remove the portion compelling the OAG to disburse
child support funds to the amicus attorney.10
Arrearage Judgment
In its fifth issue, the OAG contends that the trial court erred in refusing to
enter an arrearage judgment for child support amounts due and owing from Father.
In its final judgment, the trial court stated that “[t]he court further finds that in
accordance with the Office of the Attorney General’s pay record, that was
introduced into evidence, that the child support arrearage was $1,600.41.” The
court, however, did not order Father to pay the amount in arrearage.
In support of its contention that the trial court should have entered an
arrearage judgment, the OAG relies on Texas Family Code section 157.263(a),
which states that “[i]f a motion for enforcement of child support requests a money
judgment for arrearages, the court shall confirm the amount of arrearages and
9
The trial court, of course, retains authority under the Family Code to determine the
amount of child support owed. See C.D.E., 2015 WL 452195, at *5-6.
10
Because we sustain the OAG’s second issue, we need not address its third or fourth
issues, which challenge the same provision in the trial court’s final order.
8
render one cumulative money judgment.” Tex. Fam. Code § 157.263(a). The
OAG maintains that this section “imposes an affirmative, mandatory duty on the
trial court to reduce a child support arrearage to a money judgment upon request,”
quoting In re L.L.E., No. 01-02-00162-CV, 2003 WL 21029189, at *2 (Tex.
App.—Houston [1st Dist.] May 8, 2003, no pet.) (mem. op.).
However, even assuming section 157.263(a) imposes a mandatory duty, it
expressly does so only when the proceedings involve a motion for enforcement.
The proceedings here began when Father filed a motion to modify the parent-child
relationship. Neither Father’s pleadings nor Mother’s pleadings sought
enforcement. As set forth above, the OAG filed only an answer, in which it
generally denied the allegations in Father’s pleadings and stated that “[t]he OAG
urges that the Court confirm any outstanding arrears, render a judgment and
appropriate payout.” It is well-settled that motions for enforcement must comply
with certain mandatory requirements, including, for motions to enforce child
support obligations, the following:
§ 157.002. Contents of Motion
(a) A motion for enforcement must, in ordinary and concise language:
(1) identify the provision of the order allegedly violated and
sought to be enforced;
(2) state the manner of the respondent’s alleged noncompliance;
(3) state the relief requested by the movant; and
(4) contain the signature of the movant or the movant’s
attorney.
(b) A motion for enforcement of child support:
(1) must include the amount owed as provided in the order, the
amount paid, and the amount of arrearages;
....
(3) may include as an attachment a copy of a record of child
9
support payments maintained by the Title IV-D registry or a
local registry . . . .
Tex. Fam. Code § 157.002.
The OAG’s pleading does not contain the required allegations to constitute a
motion for enforcement. To begin with, it does not actually allege that Father
failed to pay any child support obligation; it merely “urges that the Court confirm
any outstanding arrears.” See id. § 157.002(a)(1), (2). In other words, instead of
alleging noncompliance, as required in a motion for enforcement, the OAG simply
requested the court determine whether there was any noncompliance. Moreover,
the OAG’s answer does not “include the amount owed as provided in the order, the
amount paid, and the amount of arrearages” as required by section 157.002(b)(1).
Although the OAG introduced a Financial Activity Report into evidence during the
hearing, it did not attach this document to its pleading as permitted under section
157.002(b)(3).
The purpose of a motion for enforcement is to provide notice of the
allegations for which the opposing party must prepare a defense at the hearing on
the motion. See In re Hall, No. 14–15–00895–CV, 2015 WL 7456102, at *2 (Tex.
App.—Houston [14th Dist.] Nov. 24, 2015, orig. proc.) (per curiam) (mem. op.); In
re Depeau, No. 14–14–00693–CV, 2014 WL 4952427, at *4 (Tex. App.—Houston
[14th Dist.] Oct. 2, 2014, orig. proc.) (per curiam) (mem. op.). The OAG’s answer
did not provide Father with proper notice of any allegations of noncompliance;
accordingly, the trial court was not required to enter an arrearage judgment under
Family Code section 157.263(a). See, e.g., In re Depeau, 2014 WL 4952427, at *4
(holding some allegations in motion to enforce did not comply with requirements
of section 157.002 and therefore could not be basis for trial court’s order); In re
Luebe, 404 S.W.3d 589, 593-95 (Tex. App.—Houston [1st Dist.] 2010, orig. proc.)
10
(holding motion provided sufficient notice when it identified the provisions
claimed to have been violated, specified the manner of noncompliance, detailed the
amount of alleged arrearage, and expressly sought enforcement); Ex Parte Barlow,
899 S.W.2d 791, 794-95 (Tex. App.—Houston [14th Dist.] 1995, orig. proc.)
(holding motion to enforce did not comply with requirements of predecessor
statute to section 157.002). We overrule the OAG’s fifth issue.
Conclusion
Because the trial court lacked jurisdiction to order the OAG to disburse child
support funds to pay the amicus attorney’s fees, we modify the trial court’s final
order to remove the portion compelling the OAG to disburse child support funds to
the amicus attorney and providing a credit to Father for the amount to be disbursed.
Finding no other error in the final order, we affirm the final order as so modified.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Boyce, Christopher, and Jamison.
11