in the Interest of A.S.G., J.N.G., and J.D.G., Minor Children ( 2011 )

OPINION
Nos. 04-09-00806-CV & 04-10-00090-CV
IN THE INTEREST OF A.S.G., J.N.G., and J.D.G., Minor Children
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CI-03932
Honorable Antonia Arteaga, 1 Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: January 26, 2011
VACATED IN PART; AFFIRMED IN PART
Appellant Andrew Guerra appeals two orders enforcing child support in this consolidated
appeal. First, he appeals the trial court’s amendment of an enforcement order to include an
award of attorney’s fees almost a year after the enforcement order was signed. Second, he
appeals the finding of an arrearage in a later enforcement order, arguing that the amounts
awarded as past-due child support and attorney’s fees are not supported by sufficient evidence.
We vacate the amended order awarding attorney’s fees, and affirm the enforcement order.
1
The Honorable Antonia Arteaga, Presiding Judge of the 57th Judicial District Court, Bexar County, Texas, signed
the December 9, 2009 amended order that is being appealed. The Honorable John D. Gabriel, Jr., Presiding Judge of
the 131st Judicial District Court, Bexar County, Texas, signed the January 25, 2010 order being appealed.
04-09-00806-CV & 04-10-00090-CV
FACTUAL AND PROCEDURAL BACKGROUND
A final decree of divorce between Maria Guerra and Andrew Guerra was signed on
March 24, 2005. The divorce decree obligated Andrew to pay $1,500 per month in child support
for the couple’s three children; it also ordered him to make additional monthly payments of
$1,000 in order to pay back child support totaling $10,000 owed under temporary orders. In
October 2006, Maria Guerra filed a motion to enforce child support claiming an arrearage of
$12,788.91. The trial court entered an order finding Andrew in contempt for failure to pay
$13,947.59 in child support arrearages, and ordering him to pay a lump sum of $2,000 in order to
avoid commitment to jail. Thereafter, Andrew filed a petition to modify the amount of child
support; Maria filed a counter-petition. On March 26, 2007, the trial court entered a
modification order reducing Andrew’s monthly child support payment to $800 beginning on
April 1, 2007; the court also entered judgment confirming that Andrew was in arrears for
$12,077.42 in unpaid child support. As conditions of the suspension of his commitment and
probation, Andrew was ordered to pay a lump sum of $1,500 on or before May 10, 2007 toward
the arrearage, and to pay an additional $100 per month beginning June 1, 2007, and continuing
thereafter until the arrearage is paid in full.
The Motion to Clarify and the Amended Order
In December 2008, Maria Guerra moved to enforce the March 26, 2007 child support
order and to revoke the suspension of Andrew Guerra’s commitment for contempt. After a
hearing, the trial court issued an order on January 29, 2009 finding that Andrew had failed to
comply with the March 26, 2007 order and was in contempt of court. Specifically, the court
found that Andrew was able to pay but had failed to pay total child support of $4,440 during the
period from July 1, 2008 through December 1, 2008. The court revoked Andrew’s probation,
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and committed him to the county jail for 180 days or until he paid Maria the sum of $2,500
toward the child support arrearage. The order did not award attorney’s fees, and stipulated that
“all relief requested and not expressly granted is denied.” After a two-hour period of
confinement, Andrew paid Maria $2,500 that same day.
Almost ten months later, on November 10, 2009, Maria filed a motion to clarify the
January 29, 2009 order seeking to include an award of $2,500 in attorney’s fees. At a hearing on
the motion, the trial court confirmed from the transcript of the prior hearing that attorney’s fees
on the enforcement action were verbally awarded and indicated it would sign an amended order
awarding the attorney’s fees. Counsel for Andrew agreed the fees were verbally awarded, but
objected the trial court no longer had jurisdiction to add a substantive provision to the order. 2
Thereafter, the court signed an amended order on December 9, 2009 which restated the January
29, 2009 order, and ordered Andrew to pay “$2,500.00 in attorney’s fees as additional child
support . . . .” Andrew appeals from the December 9, 2009 amended order, arguing it is void
because the trial court’s plenary jurisdiction had expired.
The Motion for Enforcement of Child Support for 2009
Also on November 10, 2009, Maria filed another motion to enforce child support and to
revoke suspension of Andrew’s commitment for contempt, arguing he had failed to make full
child support payments for March 2009 through November 2009, excluding July. According to
the March 26, 2007 order, Andrew was obligated to pay $800 in child support each month and
$100 toward arrearages for a total monthly payment of $900. Maria alleged Andrew paid less
2
On the written amended order, Andrew’s counsel noted, “I agree this is what the court ordered, but still contend the
court does not have jurisdiction to amend the order.”
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than $900 for eight of the nine months covered by her motion. Maria further alleged that Andrew
also had an outstanding total arrearage of $10,621.47 for the previous years, and requested
recovery of attorney’s fees for the enforcement action. The motion included a copy of the
Attorney General’s payment records from February 28, 2007 through November 1, 2009.
Andrew filed a general denial and a petition to modify child support alleging the amount ordered
differed by $100 from the guidelines contained in the Texas Family Code.
The trial court conducted a hearing on Maria’s motion for enforcement in December
2009. Andrew argued that instead of being in arrears for 2009, he was actually ahead for that
year. The Attorney General’s payment records for 2009 were admitted into evidence, and
showed that Andrew had paid a total of $11,405 from January through November 2009. Andrew
asserted that because the payment records showed he had overpaid by $1,505, he was not in
arrears for 2009; plus, he made an additional payment of $300 on the day of the hearing. Maria
disagreed, noting that the $11,405 reflected on the payment history included the $2,500 lump
sum toward arrearages through 2008 which Andrew was ordered to pay on January 29, 2009 to
avoid commitment to jail. Maria argued that Andrew had failed to consistently pay the required
$900 each month of 2009, instead underpaying in some months and overpaying in other months;
she asserted that any overpayments went to the outstanding arrearage balance and could not be
applied to the current child support. For example, Andrew paid $1,800 in January 2009
(excluding the $2,500 toward arrearages), $1,000 in February, and $1,090 in July; however, he
paid nothing in March, paid only $350 in August, only $570 in October, and underpaid by
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various amounts in the remaining months. 3 Maria noted that her motion for enforcement
excluded the months during which Andrew paid more than $900, with the extra payments
applied to the arrearage balance, and that she was seeking enforcement and contempt only for the
months during 2009 for which Andrew paid less than $900. Maria argued that Andrew had
shown a pattern of failing to stay current on his child support payments and consistently carried
an arrearage balance, and it had been necessary for her to file repeated motions for enforcement
and contempt.
At the conclusion of the hearing, the trial court found that Andrew owed $1,285 in unpaid
child support for 2009, found him in contempt, and ordered him to pay that amount within sixty
days. The court explained, “Well, to be honest with you, it’s somewhat confusing, but at least
when Mr. Guerra was on the stand, he admitted to being short on those particular months that
[Ms. Rivera] went over. I am going to find that he owes $1285.” The court indicated the $2,500
lump sum payment in January 2009 was for past arrearages as a condition of release from jail.
The court awarded $1,000 in attorney’s fees as additional child support to Maria’s attorney for
3
This table shows the amount of child support Andrew paid each month during 2009 according to the Attorney
General’s payment history. It does not include the $2,500 lump sum payment he was ordered to pay on January 29,
2009 toward his past arrearages through 2008.
Month Payment
January 1800
February 1000
March 0
April 800
May 840
June 855
July 1090
August 350
September 800
October 570
November 800
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the 2009 motion to enforce. Finally, the court declined to re-visit the issue of the prior attorney’s
fee award of $2,500 because Andrew had already appealed that matter.
On January 25, 2010, the court signed a written order holding Andrew in contempt for
failure to pay child support during 2009 and granting judgment for an arrearage of $1,285.00,
plus attorney’s fees of $1,000. The court ordered Andrew to pay the full $1,285 by February 11,
2010, and to pay the $1,000 in attorney’s fees by March 10, 2010. The court further ordered that
Andrew “shall continue to pay child support and arrear[s] as previously Ordered.” Andrew
timely appealed from that order, and the appeal was consolidated with his appeal of the
December 9, 2009 amended order.
DISCUSSION
Andrew Guerra raises three issues on appeal. First, he argues the December 9, 2009
amended order awarding $2,500 in attorney’s fees to Maria is void because the trial court’s
plenary power had expired. Second, he contends there was insufficient evidence to support the
court’s finding of past-due child support for 2009 and its award of attorney’s fees to Maria for
the enforcement action. 4
Trial Court’s Jurisdiction to Amend the January 29, 2009 Order
Andrew’s first issue concerns the trial court’s plenary power to amend the January 29,
2009 enforcement order to add an award of attorney’s fees. We review de novo whether a trial
court had subject matter jurisdiction to amend or modify a prior judgment. Coleman v. Sitel
Corp., 21 S.W.3d 411, 413 (Tex. App.—San Antonio 2000, no pet.). We agree with Andrew on
this issue. Maria’s motion to clarify the January 29, 2009 written order was not filed until
November 10, 2009, well after expiration of the court’s plenary power to modify its order. See
TEX. R. CIV. P. 329b(d) (providing that, “The trial court, regardless of whether an appeal has
4
No appellee’s brief was filed.
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been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the
judgment within thirty days after the judgment is signed.”). Even though a court retains the
inherent power to clarify, interpret or enforce a provision of a divorce decree, it may not alter the
judgment after expiration of its plenary power, and an order that attempts to do so is void. See
Lundy v. Lundy, 973 S.W.2d 687, 688 (Tex. App.—Tyler 1998, pet. denied) (holding that trial
court’s order clarifying and modifying the child support provision of a divorce decree after
expiration of its plenary powers was void).
Further, the only basis for clarifying a prior order in a suit affecting the parent-child
relationship is when the provision sought to be clarified is ambiguous and not specific enough to
be enforced by contempt. TEX. FAM. CODE ANN. § 157.421 (West 2008); In re A.C.B., 103
S.W.3d 570, 577 (Tex. App.—San Antonio 2003, no pet.) (absent ambiguity court was without
authority to modify prior child support order after expiration of plenary power). Here, the
January 29, 2009 order contained no ambiguity; it included specific findings as to the amounts of
child support not paid by Andrew, and imposed criminal and civil contempt sanctions for each
violation. The order contained no mention of attorney’s fees. Maria asserted that the trial
court’s oral pronouncement at the January 2009 hearing 5 awarding her attorney’s fees should
control over the written order. However, a written order controls over a trial court’s oral
pronouncement when there is an inconsistency. In re K.M.B., 148 S.W.3d 618, 622 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) (holding court’s statement in written order reserving
ruling on claim for attorney’s fees controlled over court’s oral pronouncement at end of hearing
that no attorney’s fees were awarded). The January 29, 2009 order contained nothing indicating
the court intended to reserve the matter of attorney’s fees and it disposed of all matters before the
court; the order also declared that “[a]ll relief requested and not expressly granted is denied.”
5
The appellate record does not contain a transcript of the hearing that led to the January 29, 2009 order.
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See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-04 (Tex. 2001) (finality of order or
judgment is determined by whether court’s language indicates intent to finally dispose of entire
matter after hearing on the merits; inclusion of “Mother Hubbard” clause, that all relief not
expressly granted is denied, does not necessarily make order final). Finally, because an award of
attorney’s fees is a substantive issue, and not merely correction of a clerical error, the court’s
subsequent amended order may not be upheld under the rules permitting a court to modify a
judgment after expiration of its plenary power in order to correct a clerical error. See TEX. R.
CIV. P. 316, 329b(f); see also McGehee v. Epley, 661 S.W.2d 924, 925-26 (Tex. 1983) (per
curiam) (order entered after divorce decree became final which affirmatively imposed obligation
to pay where none previously existed was more than a mere clarification of prior judgment and
was error); In re A.C.B., 103 S.W.3d at 578 (clarification order granting additional substantive
relief that was not awarded in original order was error).
The trial court’s plenary power to modify its original, unambiguous enforcement order
had long since expired when it signed the amended order on December 9, 2009 adding the award
of $2,500 in attorney’s fees. Any judicial action by a court without jurisdiction is void. Mapco,
Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990); In re H.G., 267 S.W.3d 120, 124 (Tex. App.—
San Antonio 2008, pet. denied). Accordingly, we vacate the amended order signed December 9,
2009.
Insufficient Evidence to Support Court’s Finding of Arrearage for 2009
Andrew’s second issue concerns the amount of child support arrearage found by the trial
court in its January 25, 2010 enforcement order. Chapter 157 of the Family Code governs
motions for enforcement of child support, including confirmation of child support arrearages.
TEX. FAM. CODE ANN. §§ 157.001-.426 (West 2008 & Supp. 2010). The movant on a motion to
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enforce bears the burden of establishing the amount of child support owed, while the respondent
may offer controverting evidence. Id. §§ 157.002 (West 2008), 157.008 (West 2008), 157.162
(West Supp. 2010); In re A.L.G., 229 S.W.3d 783, 785 (Tex. App.—San Antonio 2007, no pet.).
Any affirmative defense must be proved by a preponderance of the evidence. TEX. FAM. CODE
ANN. § 157.006(b) (West 2008). We will not disturb a court’s order of enforcement for child
support, including a judgment confirming an arrearage, unless the appellant shows a clear abuse
of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re A.L.G.,
229 S.W.3d at 784. A trial court abuses its discretion as to facts when it acts arbitrarily and
unreasonably, and as to legal matters when it acts without reference to guiding rules. In re
A.L.G., 229 S.W.3d at 784-85. A trial court does not abuse its discretion if it bases its decision
on conflicting evidence, and a permissible view of some evidence supports its decision. Id. at
785. We imply all necessary findings of fact to support the trial court’s judgment in non-jury
trials, such as this one. Id.
At the hearing, Andrew maintained that his overpayments in some months offset his
failure to pay the full amount of current child support in other months. He testified that he had
called the Attorney General’s office, and was told that he was “ahead.” He stated the person he
spoke to advised him that, “when you make your payments, you make your payments.” Andrew
understood from this exchange that when he overpaid in one month, the excess did not apply to
his general arrears but instead helped him stay current for 2009 by applying to the months he
underpaid. Finally, Andrew explained the nature of his work and intermittent income sometimes
prevented him from making full child support payments in some months, but that he paid extra
the next month. The trial court found Andrew in contempt and ordered him to pay $1,285 in
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arrearages for 2009. The court stated the amount was based on Andrew’s admissions that “at
least for those months [Ms. Rivera] asked about,” he had failed to pay the full $900 amount.
On appeal, Andrew argues Maria failed to meet her burden of proof to show he was in
arrears for 2009. Andrew contends that because he owed a total of $9,900 from January through
November 2009 ($900 x 11 months), and the Attorney General’s payment records show he paid
a total of $11,405, he was not in arrears but was in fact “ahead” for 2009. See TEX. FAM. CODE
ANN. § 157.162(d) (West Supp. 2010) (court may not find respondent in contempt if payment
record shows he is current on child support). We disagree. First, the payment records clearly
show the $11,405 amount includes the $2,500 lump sum Andrew paid at the end of January 2009
as a condition of his release from commitment for contempt based on the 2008 arrearages;
therefore, that amount does not apply to the 2009 child support obligation. Second, a provision
of the Texas Family Code, section 157.268, directly addresses the priority in which child support
payments are to be applied. TEX. FAM. CODE ANN. § 157.268 (West Supp. 2010). Section
157.268 expressly provides that:
Child support collected shall be applied in the following order of priority:
(1) current child support;
(2) non-delinquent child support owed;
(3) the principal amount of child support that has not been confirmed and reduced
to money judgment;
(4) the principal amount of child support that has been confirmed and reduced to
money judgment;
(5) interest on the principal amounts specified in Subdivisions (3) and (4); and
(6) the amount of any ordered attorney’s fees or costs . . . .
Id.
Here, the only matter before the trial court on Maria’s motion to enforce was the time
period from March through November 2009. As noted, supra, under the March 26, 2007 order
Andrew’s current child support obligation was $800 per month. The following table reflects the
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amount of child support owed, the amount Andrew paid each month, and a running total of past-
due child support during the relevant period:
Month Owed Paid Arrears
March $ 800 $0 $ –800
April $ 800 $ 800 $ –800
May $ 800 $ 840 $ –760
June $ 800 $ 855 $ –705
July* $ 800 $ 900 $ –605
August $ 800 $ 350 $ –1055
September $ 800 $ 800 $ –1055
October $ 800 $ 570 $ –1285
November $ 800 $ 800 $ –1285
*July is not reflected in Maria’s motion to enforce, and she conceded at the hearing on the
motion that Andrew paid the full amount in July.
As shown in the table, the trial court correctly calculated the amount of past-due child
support owed by Andrew for March through November 2009, the period covered by Maria’s
motion to enforce. Contrary to Andrew’s argument, any overpayment in January and February
was applied to past-due child support arrearages for prior years because there was no past-due
child support owed for 2009 at that time. See TEX. FAM. CODE ANN. § 157.268(3), (4) (West
Supp. 2010). Further, an obligor cannot “pay forward” a current child support obligation unless
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he owes no arrears. See id. Accordingly, we conclude the trial court did not abuse its discretion
in finding that Andrew was in arrears for 2009 in the amount of $1,285. 6
Award of Attorney’s Fees
In his third issue, Andrew challenges the award of attorney’s fees in the January 25, 2010
order, arguing it is based on insufficient evidence. The grant or denial of attorney’s fees is
within the sound discretion of the trial court. In re C.Z.B., 151 S.W.3d 627, 634 (Tex. App.—
San Antonio 2004, no pet.) (citing Oake v. Collin County, 692 S.W.2d 454, 455 (Tex. 1985)).
We will uphold an award of attorney’s fees unless we find the trial court acted arbitrarily or
unreasonably. Id. Under Texas law, attorney’s fees are only recoverable when authorized by
statute or contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006); In re
C.Z.B., 151 S.W.3d at 634. In an action to enforce child support, the Family Code authorizes the
movant’s recovery of reasonable attorney’s fees from a respondent who has failed to make child
support payments. See TEX. FAM. CODE ANN. § 157.167(a) (West 2008); In re C.Z.B., 151
S.W.3d at 634. Absent an express finding by the trial court to the contrary, the respondent must
pay the movant’s fees and costs. See TEX. FAM. CODE ANN. § 157.167(c) (West 2008); see also
Gross v. Gross, 808 S.W.2d 215, 222 (Tex. App.—Houston [1st Dist.] 1991, no writ).
Particularly in child support cases, the trial court has broad discretion in awarding attorney’s
fees. See TEX. FAM. CODE ANN. § 106.002 (West 2008); In re C.Z.B., 151 S.W.3d at 634.
Andrew contends that the evidence Maria’s attorney, Ms. Rivera, presented to the trial
court is insufficient to support the court’s award of $1,000 in fees because she did not testify as
to her hourly rate and how many hours she spent working on the case. See In re C.Z.B., 151
6
Andrew makes an alternative argument that the court’s finding of any arrearage for 2009 was an abuse of
discretion because his testimony proved his affirmative defense of inability to pay. As the fact finder, the trial court
was the exclusive judge of the credibility and weight to be given the evidence, and was entitled to disbelieve all or
part of Andrew’s testimony. Magness v. Magness, 241 S.W.3d 910, 913 (Tex. App.—Dallas 2007, pet. denied).
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S.W.3d at 635 (“To support an award of reasonable costs, testimony should be presented
regarding the number of hours spent on the case, the nature of the preparation, the complexity of
the case, the experience of the attorney, and the prevailing hourly rates.”). In her testimony, Ms.
Rivera described her experience as a family law attorney for 16 years, her activities related to the
filing of the motion to enforce, her efforts to settle the matter with opposing counsel who denied
there was any arrearage for 2009, and the history of the case involving the need for repeated
enforcement proceedings. Andrew argues this testimony is insufficient under the requirements
established by the Texas Supreme Court’s holding in Arthur Andersen & Co. v. Perry Equip.
Corp., 945 S.W.2d 812 (Tex. 1997), and this court’s holding in San Antonio Credit Union v.
O’Connor, 115 S.W.3d 82 (Tex. App.—San Antonio 2003, pet. denied). But the awards in those
cases concerned contingency fee arrangements where the attorneys testified to the existence of
those arrangements and did not request a “specific dollar amount.” See Arthur Andersen, 945
S.W.2d at 818 (holding that plaintiffs under the DTPA must ask for the award of fees in a
specific dollar amount, not as a percentage of the judgment); see also San Antonio Credit Union,
115 S.W.3d at 106.
Although here Ms. Rivera did not testify to her hourly rate or exact number of hours
spent on the case, she did specifically ask for $1,500 in attorney’s fees and explained to the trial
court their necessity and reasonableness. This comports with Arthur Andersen’s basic
requirements. See Arthur Andersen, 945 S.W.2d at 818 (establishing that the requesting party
must prove that the amount of fees was both reasonably incurred and necessary to the
prosecution of the case). This testimony provides a reasonable basis for the award of $1,000
given the mandatory nature of the fee award and the broad discretion granted to the trial court
under the Family Code. See TEX. FAM. CODE ANN. §§ 157.167, 106.002 (West 2008).
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Additionally, Andrew complains of the lack of segregation in the attorney’s fee request
between work on the motion to clarify and the motion for enforcement, both of which were filed
on November 10, 2009. He contends Ms. Rivera should have distinguished between the two
cases in accordance with Tony Gullo’s fee segregation requirements. See Tony Gullo, 212
S.W.3d at 311 (“[F]ee claimants have always been required to segregate fees between claims for
which they are recoverable and claims for which they are not.”). This contention misconstrues
the testimony. Ms. Rivera requested the recovery of “fair and reasonable attorney’s fees in this
motion,” namely the motion to enforce which was the sole subject of the hearing. The record is
clear that she had already obtained the amended order awarding $2,500 in attorney’s fees for the
enforcement action for the 2008 arrearages. We overrule Andrew’s challenge and sustain the
trial court’s award of $1,000 in attorney’s fees for the 2009 enforcement motion. Accordingly,
we affirm the trial court’s January 25, 2010 order in its entirety.
CONCLUSION
Based on the foregoing reasons, we vacate the trial court’s amended order signed
December 9, 2009 awarding $2,500 in attorney’s fees to Maria Guerra on her 2008 enforcement
motion, and affirm the trial court’s order signed January 25, 2010.
Phylis J. Speedlin, Justice
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