Patricia A. Packard v. Rex v. Davis ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-022-CV
PATRICIA A. PACKARD APPELLANT
V.
REX V. DAVIS APPELLEE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Patricia A. Packard appeals the trial court’s enforcement order
determining that Appellee Rex V. Davis owes a child support arrearage of
$19,614.46 inclusive of interest and costs. In two issues, Patricia claims that
the trial court abused its discretion by determining that this arrearage amount
1
… See Tex. R. App. P. 47.4.
was inclusive of interest and costs and by ordering that each party is
responsible for his or her own attorney’s fees. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Patricia and Rex divorced in 1978. During the marriage, the couple had
a daughter and a son. The agreed decree of divorce ordered Rex to pay child
support until the youngest child reached the age of eighteen or was “otherwise
emancipated.” In 1988, the trial court held Rex in contempt for failure to pay
child support in the amount of $3,750 and issued a withholding order to collect
the child support. Thereafter, Rex’s youngest child reached the age of eighteen
in 1991 and graduated from high school in 1992.
Thirteen years elapsed, and in May 2005, Patricia’s attorney requested
reissuance of the 1988 contempt order, and the Parker County District Clerk’s
office reissued the order to Rex’s employer to withhold child support from his
paychecks. Rex responded with a motion to terminate the 1988 order and the
notice to withhold. Patricia countered by filing a July 7, 2005 “Counter-Motion
to Confirm Child Support Arrearage.” Rex answered, challenging the trial
court’s jurisdiction to confirm any child support arrearage. The trial court
thereafter stayed the withholding order, ordered Rex to make payments into the
court’s registry, and asked the parties to submit briefs on the legal issues in the
case. Ultimately, the trial court denied Rex’s petition to terminate the
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withholding provision from the 1988 contempt order 2 and set the case for an
evidentiary hearing “to determine the amount of arrearage due.”
The question of what child support payments had been made by Rex was
hotly contested.3 Patricia testified that she had received only fourteen
payments that Rex made through the Parker County child support office, that
she did not receive any payments directly from Rex, and that she had not
received a payment from Rex since 1989. Rex, however, testified that he
made payments directly to Patricia because she said that she needed the money
faster than the child support office could get it to her. Rex claimed that in
1988, the trial court had found that he had made payments directly to Patricia
because there were canceled checks; Rex pointed to the fact that at that time,
his arrearage was only $3,750 despite the fact that the administrative
payments records reflected only fourteen payments made by him since the
1978 divorce. Rex testified that Patricia never called to say that she had not
received a payment and never tried to collect this alleged arrearage between
1988 and 2005. According to Rex, he had paid all of his child support
2
… Neither party challenges the 1988 wage withholding order on appeal.
3
… Patricia claims there was a stipulation on this issue, but the record
reflects that Rex stipulated only to the amount of payments he made through
the child support office and that Rex claimed he made additional, direct
payments to Patricia.
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obligation and then some.4 Rex’s wife, Janice, testified that she had sent
checks to Patricia until the youngest child turned eighteen; she explained that
they no longer had records of those payments because she and Rex had
remodeled their home and at that time had discarded the old canceled child
support checks.
After hearing this evidence, the trial court found that the total amount of
the arrearage was “$21,014.46, inclusive of interest and costs, as of July 31,
2007“ and that Rex had made $1,400 in payments to the court registry,
leaving a total balance of $19,614.46. The trial court’s enforcement order
required Rex to pay $350 per month to Patricia and contained a provision
ordering any employer of Rex to withhold from Rex’s earnings this monthly
child support payment. The trial court also entered an employer’s order to
withhold from earnings for child support arrearages. The trial court did not
make findings of fact or conclusions of law.
Patricia filed a notice of appeal, challenging the trial court’s order
confirming the child support arrearage because it failed to award her interest,
reasonable attorney’s fees, and court costs.
4
… The evidence revealed that Rex was currently making his daughter’s
student loan payments.
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III. J URISDICTION
Before reaching the merits of Patricia’s arguments, we must address
whether the trial court had jurisdiction to sign an enforcement order and a wage
withholding order. Rex argues here, as he did in the trial court, that the trial
court did not have jurisdiction to determine the arrearage owing, if any, under
the version of section 157.005(b) of the Texas Family Code that was in effect
at the time Patricia filed her motion to enforce requesting wage withholding.5
The version of section 157.005(b) in effect when Patricia filed her
“Counter-Motion to Confirm Child Support Arrearage” provided, in pertinent
part,
(b) The court retains jurisdiction to confirm the total amount of
child support arrearages and render judgment for past-due child
support if a motion for enforcement requesting a money judgment
is filed not later than the 10th anniversary after the date:
(1) the child becomes an adult; or
(2) on which the child support obligation terminates under the child
support order or by operation of law.
Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 21, 2005 Tex. Gen. Laws
3148, 3155 (amended 2007) (current version at Tex. Fam. Code Ann.
§ 157.005(b) (Vernon 2002)). Rex claims that under this provision, Patricia
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… Rex did not file his own notice of appeal.
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was required to file her countermotion within ten years of the emancipation of
their youngest child, which she did not do.
The trial court here, however, signed an enforcement order and an order
for wage withholding under chapter 158 of the family code; 6 it did not render
a cumulative judgment for past-due child support as prohibited by section
157.005(b). And in 1997, the legislature amended family code section
158.102 to delete a four-year jurisdictional deadline imposed upon trial courts
to enforce child support obligations through income withholding and stated that
such amendment applies to any suit not already pending as of the effective date
of the legislation. See Act of May 21, 1997, 75th Leg., R.S., ch. 911, § 40,
1997 Tex. Gen. Laws 2864, 2872–73 (current version at Tex. Fam. Code Ann.
§ 158.102 (Vernon 2002)). Thus, section 158.102 now contains no express
deadline on the trial court’s jurisdiction to enter an order that provides for
income withholding and authorizes the entry of such an order “until all current
support and child support arrearages, interest, and any applicable fees and
costs have been paid.” Tex. Fam. Code Ann. § 158.102; accord In re A.D., 73
S.W.3d 244, 249 (Tex. 2002) (recognizing that administrative wage
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… Section 157.001(c) specifically authorizes an enforcement action
under either chapter 157 or chapter 158. Tex. Fam. Code Ann. § 157.001(c)
(Vernon 2002).
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withholding by the Attorney General’s office is available regardless of how long
an obligor has avoided his court-ordered support duty); Attorney Gen. v.
Redding, 60 S.W.3d 891, 895 (Tex. App.—Dallas 2001, no pet.) (same). We
thus hold that, based on the plain language of family code section 158.102, the
trial court possessed jurisdiction to sign an enforcement order and to order
wage withholding. See, e.g., Tex. Fam. Code Ann. §§ 158.102, 157.269;
Tex. Gov’t Code Ann. § 311.011 (Vernon 2005). And Rex does not argue that
his child support obligation was extinguished for reasons other than family code
section 157.005(b)’s jurisdictional limitation, so we need not address any other
possible arguments. See In re A.D., 73 S.W .3d at 249; see also Burnett-
Dunham v. Spurgin, 245 S.W.3d 14, 15, 18 (Tex. App.—Dallas 2007, pet.
filed) (applying affirmative defense of residual statute of limitations when
pleaded by respondent in child support arrearage suit). Thus, the trial court also
had jurisdiction to award interest, attorney’s fees, and costs.
IV. INTEREST, C OSTS, AND A TTORNEY’S F EES
Patricia contends that the trial court abused its discretion by concluding
that the arrearage of $19,614.46 was inclusive of interest and costs and by
ordering each party to bear his or her own attorney’s fees. Generally, child
support issues are reviewed under the abuse of discretion standard. See
Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.—El Paso 1998, no pet.).
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In determining whether an abuse of discretion has occurred, the question is not
whether the reviewing court would make the same decision given the same
facts and circumstances as presented in the trial court but whether the trial
court acted without reference to any guiding rules and principles. Duran v.
Garcia, 224 S.W .3d 309, 313 (Tex. App.—El Paso 2005, no pet.). The trial
court does not abuse its discretion if it bases its decision to award arrears on
conflicting evidence and some evidence supports its decision. See George v.
Jeppeson, 238 S.W.3d 463, 474 (Tex. App.— Houston [1st Dist.] 2007, no
pet.).
Here, the amount of the arrearage purportedly owed by Rex was hotly
contested. Rex and his wife Janice both claimed that they had paid Patricia
directly, at her request. This testimony is consistent with evidence in the
record that in 1988, the trial court calculated Rex’s arrearage at an amount well
below the arrearage that would be due if the only payments he had made were
those reflected in the administrative payment records. Additionally, Patricia
offered no cogent explanation for her decision to wait until 2005, until the
children were thirty-five and thirty-eight, to request payment of child support
she claims she did not receive from 1989 through 1992. She said that she had
waited because “[i]t was the right thing to do.” Applying the abuse of
discretion standard to the trial court’s decision that the unpaid arrearage owed
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by Rex was $19,614.46 inclusive of interest and costs, we hold that because
some evidence supports the trial court’s implied finding that Rex in fact made
some direct payments to Patricia, the trial court did not abuse its discretion by
determining that the total arrearage owed by Rex was $19,614.46 inclusive of
interest and costs. See id. (deferring to trial court’s implied factual resolution
and the resulting determination that wife failed to meet her burden of proof
when she moved the trial court to confirm the arrearage that she claimed was
due and owing by her ex-husband under their 1997 decree); see also Longhurst
v. Clark, No. 01-07-00226-CV, 2008 WL 3876175, at *9 (Tex. App.—Houston
[1st Dist.] Aug. 21, 2008, no pet.) (mem. op.) (holding that there was some
evidence to support trial court’s finding that ex-husband owed $298,835 on
arrearages from 1992 when trial court took judicial notice of its 1992 Texas
order). We overrule Patricia’s first issue.
Patricia next claims that the trial court abused its discretion by failing to
award her attorney’s fees. Patricia’s attorney testified that he was hired by
Child Support Network and that they were responsible for his attorney’s fees.
He also testified that the Child Support Network takes these types of cases on
a contingency fee and that his fee “will come out of her child support,
ultimately.” Patricia’s attorney testified that he had spent 71.4 hours on the
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case, billed $200 per hour, and claims he was entitled to $14,280 in attorney’s
fees.
As noted above, by the time Patricia filed her countermotion to enforce,
the trial court had lost jurisdiction to enforce any past due child support
payments owed by Rex via a money judgment. See Act of May 29, 2005,
79th Leg., R.S., ch. 916, § 21, 2005 Tex. Gen. Laws 3148, 3155 (amended
2007) (current version at Tex. Fam. Code Ann. § 157.005(b)). The trial court
had not, however, lost jurisdiction to enforce past due child support via a wage
withholding order. See Tex. Fam. Code Ann. § 158.102; In re A.D., 73
S.W.3d at 249. When entering such an order, the trial court is not required to
also order wage withholding for attorney’s fees. See Tex. Fam. Code Ann.
§ 158.0051 (Vernon 2002) (providing that the trial court may include an award
of attorney’s fees in a wage withholding order). Consequently, even if the trial
court erred or abused its discretion by ordering that each party bear his or her
own attorney’s fees, no harm occurred here because the trial court possessed
discretion in any event to not include attorney’s fees in the ordered wage
withholding (the only enforcement procedure sought by Patricia for which the
trial court possessed jurisdiction to grant). We overrule Patricia’s second issue.
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Va. C ONCLUSION
Having overruled both of Patricia’s issues, we affirm the trial court’s
order.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DELIVERED: November 13, 2008
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