in the Interest of M.C. and A.C., Minor Children ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00044-CV
IN THE INTEREST OF M.C. AND
A.C., MINOR CHILDREN
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FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 233-092116-86
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MEMORANDUM OPINION1
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I. Introduction
In four points, appellant R.C. appeals the trial court’s judgment for appellee
S.G. We affirm in part and reverse and render in part.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
Twenty-seven years after the parties’ 1986 divorce, and over a decade
after the parties’ youngest child, A.C., turned eighteen, S.G. instituted this action
in the trial court to collect $139,976.43 in past-due child support.2 During the
intervening years, S.G. made no attempt, either on her own or through the
Attorney General of Texas, to collect any past due child support, even though the
court-ordered payments had ceased decades earlier. At the time this action
commenced, R.C. was employed as a laborer for the Nueces County Water
Department, digging up and replacing broken water lines and receiving net
earnings of $2,450.12 per month.
After R.C. failed to respond to S.G.’s application within the statutory time
period, see Tex. Fam. Code Ann. § 158.307 (West 2014), the trial court granted
S.G.’s application and adjudicated the amount of child support arrearage to be
$139,976.43 as of July 16, 2013. That order was set aside, however, when the
trial court granted R.C.’s motion for new trial, which was filed twenty-seven days
after the court’s order was signed.3
In S.G.’s supplemental response to the suit to challenge and correct the
child support arrearages and request for affirmative relief, S.G. asserted that in
2
The parties’ oldest child, M.C., was 35 years old at the time S.G. instituted
the action.
3
Prior to filing his motion for new trial and on the same day that the trial
court signed the order granting S.G.’s application, R.C. filed a suit to challenge
and correct child support arrearages.
2
the parties’ 1986 divorce decree, R.C. had been ordered to pay $65 per week in
child support through the Tarrant County Child Support Registry, to begin on
June 6, 1986. She attached the divorce decree to her supplemental response
and incorporated it by reference. S.G. also attached and incorporated by
reference a record of child support payments maintained by the Tarrant County
Child Support Registry showing that from June 19, 1986 to July 30, 1990, R.C.
had made payments totaling $11,886.40. And she attached and incorporated by
reference what she referred to as “a complete payment record,” detailing a
payment history through February 11, 2014, including payment due dates, actual
payments, and interest calculations. The interest calculations were segregated
into three distinct time periods and set forth as follows: June 6, 1986–August 27,
1993, calculated using a 10% annual interest rate and denoting a “Rate Change”
on September 1, 1991; September 3, 1993–December 28, 2001, calculated
using a 12% annual interest rate; and January 1, 2002–September 13, 2002,
calculated using a 6% annual interest rate. At the end of each of the three
portions of the exhibit—identified by interest rate—S.G. set out an amortization
schedule showing annual totals of the amount of child support due, the payments
actually made, interest and principal, and the balance due, including a final total
balance of $142,832.93 ($82,747.80 in child support arrearages and $60,085.13
in interest) as of February 11, 2014.
At the hearing on S.G.’s supplemental response, R.C. objected to S.G.’s
Exhibit 5, the same payment record described above, and to S.G.’s Exhibit 7,
3
which was a payment record through November 3, 2014, showing a balance of
$146,437.56 ($82,747.80 in child support arrearages and $63,689.76 in interest).
The trial court overruled his challenges and admitted these two exhibits.
R.C. then offered, and the trial court admitted, R.C.’s Exhibit 2, a certified
copy of the Tarrant County Child Support Office’s record showing that he owed
$104,862.27 in cumulative arrearages through October 31, 2014 ($55,250 in
child support arrearages and $61,982.07 in accrued interest), and showing the
applicable interest rate from June 6, 1986 to December 31, 2001 at 12% and
from January 1, 2002 to September 16, 2002 at 6%. Exhibit 2 also included a
$483.40 payment made on October 17, 2013, which was not reflected in either of
S.G.’s exhibits. R.C. testified that he agreed with the Tarrant County Child
Support Office’s record of the arrearages as reflected in his Exhibit 2 and that he
owed “a little over” $104,000 minus “any kind of possession credit . . . and direct
payments.”4 R.C. also testified that he should not be responsible for S.G.’s
attorney’s fees prior to the grant of the new trial and requested that the trial court
4
R.C. claimed that he had made some direct payments to S.G. that were
not accounted for, but his only evidence was a copy of a $300 check that his wife
wrote to S.G. for “[A.C.] school” when A.C. was already eighteen years old. R.C.
also stated that he sought possession credit for the time M.C. lived with him, but
M.C. was already eighteen during that time. The divorce decree provided for
R.C. to make weekly child support payments “until the children attain the age of
eighteen (18) years or are otherwise emancipated.” M.C. turned eighteen years
old in 1996 and A.C. turned eighteen years old in 2002. S.G. testified that she
had never seen any direct payments from R.C.
4
set a structured payout schedule on the arrearages. The trial court sustained
S.G.’s objection to the payout schedule request.
At the conclusion of the hearing, R.C.’s position was basically two-fold:
that the amount S.G. sought, at around $40,000 over the Tarrant County amount,
was unfair, and that given his age and financial circumstances, the trial court
should not garnish 50% of his income. Additionally, R.C. offered $97,000 to
satisfy the arrearage, stating that he and his wife would take out a home equity
loan on her property as a down payment and then pay the rest in monthly
installments for ten years.5
On November 10, 2014, the trial court signed a judgment for S.G. in the
amount of $146,437.56, plus interest, in addition to attorney’s fees and court
costs, payable through a judicial writ of withholding.
III. Discussion
In his first point, R.C. claims that the trial court based its $146,437.56
award of past-due child support on an “in-house” calculation of child support
arrearages and interest prepared by S.G.’s attorney without receiving any
evidence of the basis and reliability of the $146,437.56 figure. In his second
point, he challenges the legal and factual sufficiency of the evidence to support
the trial court’s arrearages determination. Assuming without deciding that S.G.’s
5
S.G. testified that R.C.’s proposal was unacceptable.
5
exhibits were properly admitted, based on our analysis below, we conclude that
R.C.’s sufficiency challenge has merit.
A. Standard of Review
Most appealable issues in family law cases are evaluated for an abuse of
discretion. Herzfeld v. Herzfeld, No. 05-10-01298-CV, 2012 WL 6061772, at *2
(Tex. App.—Dallas Dec. 6, 2012, no pet.) (mem. op.). A trial court abuses its
discretion if the court acts without reference to any guiding rules or principles,
that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,
614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A trial
court also abuses its discretion by ruling without supporting evidence. Ford
Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). A trial court also abuses
its discretion if it fails to analyze the law correctly or misapplies the law to
established facts. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
In family law cases, the abuse of discretion standard of review overlaps
with the traditional sufficiency standard of review; as a result, legal and factual
sufficiency are not independent grounds of error but are relevant factors in our
assessment of whether the trial court abused its discretion. Herzfeld, 2012 WL
6061772, at *2. To determine whether the trial court abused its discretion
because the evidence is insufficient to support its decision, we consider whether
the trial court (1) had sufficient evidence upon which to exercise its discretion and
(2) erred in its exercise of that discretion. Id. We conduct the applicable
sufficiency review with regard to the first question. Id. We then determine
6
whether, based on the elicited evidence, the trial court made a reasonable
decision. Id.
Regarding sufficiency of the evidence, we may sustain a legal sufficiency
challenge only when (1) the record discloses a complete absence of evidence of
a vital fact, (2) the court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact, (3) the evidence offered
to prove a vital fact is no more than a mere scintilla, or (4) the evidence
establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo,
444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g); Uniroyal Goodrich Tire Co. v.
Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999).
In determining whether there is legally sufficient evidence to support the finding
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the answer should be set aside and
a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)
7
(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,
395 S.W.2d 821, 823 (Tex. 1965).
B. Applicable Law on Child Support Interest
Family code section 157.265 governs accrual of interest on child support.
Tex. Fam. Code Ann. § 157.265 (West 2014). A trial court has no discretion to
modify interest on child support arrearages, and in determining the amount of
accrued interest, the court acts as a “mere scrivener” with no discretion to
deviate from the family code’s dictates. Herzfeld, 2012 WL 6061772, at *3.
Section 157.265 has been frequently amended since its inception in 1991,6
but it currently provides:
(a) Interest accrues on the portion of delinquent child support
that is greater than the amount of the monthly periodic support
obligation at the rate of six percent simple interest per year from the
date the support is delinquent until the date the support is paid or the
arrearages are confirmed and reduced to money judgment.
(b) Interest accrues on child support arrearages that have
been confirmed and reduced to money judgment as provided in this
subchapter at the rate of six percent simple interest per year from
the date the order is rendered until the date the judgment is paid.
(c) Interest accrues on a money judgment for retroactive or
lump-sum child support at the annual rate of six percent simple
6
See Act of May 23, 1991, 72nd Leg., R.S., ch. 467, §§ 1, 6, 1991 Tex.
Gen. Laws 1693, 1693, 1695, amended by Act of May 6, 1993, 73rd Leg., R.S.,
ch. 150, §§ 1, 3, 1993 Tex. Gen. Laws 302, 302, amended by Act of May 24,
1999, 76th Leg., R.S., ch. 943, §§ 1, 3, 1999 Tex. Gen. Laws 3679, 3679,
amended by Act of May 25, 2001, 77th Leg., R.S., ch. 1491, §§ 1, 3, 2001 Tex.
Gen. Laws 5294, 5294–95, amended by Act of May 12, 2005, 79th Leg., R.S.,
ch. 185, §§ 1–2, 2005 Tex. Gen. Laws 339, 339 (current version at Tex. Fam.
Code Ann. § 157.265).
8
interest from the date the order is rendered until the judgment is
paid.
(d) Subsection (a) applies to a child support payment that
becomes due on or after January 1, 2002.
(e) Child support arrearages in existence on January 1, 2002,
that were not confirmed and reduced to a money judgment on or
before that date accrue interest as follows:
(1) before January 1, 2002, the arrearages are subject
to the interest rate that applied to the arrearages before that
date; and
(2) on and after January 1, 2002, the cumulative total of
arrearages and interest accumulated on those arrearages
described by Subdivision (1) is subject to Subsection (a).
(f) Subsections (b) and (c) apply to a money judgment for child
support rendered on or after January 1, 2002. A money judgment
for child support rendered before that date is governed by the law in
effect on the date the judgment was rendered, and the former law is
continued in effect for that purpose.
Tex. Fam. Code Ann. § 157.265 (emphasis added); see also In re M.C.C., 187
S.W.3d 383, 385 (Tex. 2006) (holding that the 2001 amendment did not indicate
legislative intent to make it retroactive; as of January 1, 2002, unpaid child
support that had not been judicially confirmed, including the 12% interest already
included in the debt, would start accruing any new interest at the rate of 6%).
Before September 1, 1991, Texas common law favored the award of
prejudgment interest for delinquent child support based on the reasoning that an
ascertainable sum of money could be determined to have been due and payable
at a date certain prior to judgment. Castle v. Harris, 960 S.W.2d 140, 143–44
(Tex. App.—Corpus Christi 1997, no writ). As observed in O’Connor’s Family
9
Law Handbook, “It is unclear, however, whether the interest that accrues on
unconfirmed child support during this period should be characterized as
prejudgment or postjudgment interest.” Joan Foote Jenkins & Randall B. Wilhite,
O’Connor’s Texas Family Law Handbook 1102, 1103–04 (2015) (noting that the
applicable interest rate during this time period, if characterized as common law
prejudgment interest, would be governed by a variety of rules, including those
governing compounding versus simple interest, and if characterized as
postjudgment interest, would be governed by the revised civil statute article and
interpretive case law in effect at the time).
On September 1, 1991, the legislature added section 157.265’s
predecessor, providing for prejudgment interest to accrue on unpaid child support
obligations “at the rate of ten percent a year computed monthly.” Act of May 23,
1991, 72nd Leg., R.S., ch. 467, §§ 1, 6, 1991 Tex. Gen. Laws 1693, 1693, 1695
(emphasis added); Castle, 960 S.W.2d at 142, 144. But a subsequent
amendment, effective September 1, 1993, changed the rate to 12% simple
interest per year.7 Act of May 6, 1993, 73rd Leg., R.S., ch. 150, §§ 1, 3, 1993
Tex. Gen. Laws at 302; Castle, 960 S.W.2d at 142–43. “The 1993 amendment,
7
The 1993 amendment also deleted the word “prejudgment,” added
“delinquent,” and provided that the interest would accrue from the date the
support was delinquent until the date it was paid, regardless of whether the
amount had been reduced to judgment by the court. Act of May 6, 1993, 73rd
Leg., R.S., ch. 150, § 1, sec. 14.34(a), 1993 Tex. Gen. Laws at 302. As pertinent
here, it defined “delinquent” payment as “if the payment is not received by the
obligee, registry, or entity specified in the child support order before the 31st day
after the payment date stated in the order.” Id. § 1, sec. 14.34(b).
10
which raise[d] the statutory interest rate from ten percent to twelve percent,
‘reache[d] back’ and applie[d] to arrears due and owing on September 1, 1991.”
In re W.G.S., 107 S.W.3d 624, 629 (Tex. App.—Corpus Christi 2002, no pet.).
That is, the statute as enacted and made effective on September 1, 1993, stated:
This Act applies to child support payments due on or after
September 1, 1991, and any accrued arrears which were owing on
or after September 1, 1991, in:
(1) an action commenced on or after the effective date
of this Act; or
(2) a new trial or retrial following appeal of the trial
court’s judgment in an action commenced before the effective
date of this Act.
Act of May 6, 1993, 73rd Leg., R.S., ch. 150, §§ 1, 3(b), 1993 Tex. Gen. Laws at
302 (emphasis added). Therefore, as of September 1, 1993, the interest rate for
delinquent child support from September 1, 1991 until December 31, 2001, was
12% per year. See Act of May 6, 1993, 73rd Leg., R.S., ch. 150, §§ 1, 3(b), 1993
Tex. Gen. Laws at 302; Jenkins & Wilhite, O’Connor’s Texas Family Law
Handbook at 1104.
In 1999, the legislature modified when interest would begin to accrue on
the portion of delinquent child support “that is greater than the amount of the
monthly periodic support obligation” at 12% simple interest per year. Act of May
24, 1999, 76th Leg., R.S., ch. 943, § 1, 1999 Tex. Gen. Laws at 3679. In 2001,
the legislature amended the statute to reflect a 6% simple interest rate per year.
11
Act of May 25, 2001, 77th Leg., R.S., ch. 1491, §§ 1, 3, 2001 Tex. Gen. Laws at
5294–95.8
The legislature amended the statute again in 2005 to add subsections (d)
through (f) and to address the split in the courts regarding whether the 2001
interest rate change from 12% to 6% was to apply only prospectively or also
retroactively. See Act of May 12, 2005, 79th Leg., R.S., ch. 185, §§ 1–2, 2005
Tex. Gen. Laws at 339; House Comm. on Jurisprudence, Bill Analysis, Tex. H.B.
8
In contrast to the 1993 amendment, in M.C.C., the supreme court
concluded that the 2001 amendment was to be prospectively applied only,
because the effective date language “merely state[d] the amending date and then
define[d] the types of support to which the new six percent rate applie[d] without
any suggestion of retroactive application.” 187 S.W.3d at 384–85 (quoting
government code section 311.022 for the proposition that a statute is presumed
to be prospective in its operation unless expressly made retroactive and stating
that statutes are only applied retroactively if the statutory language indicates that
the legislature intended that the statute be retroactive). The 2001 amendment
stated:
The change in law made by this Act applies only to:
(1) a child support payment that becomes due on or after the
effective date of this Act; and
(2) unpaid child support that became due before the effective
date of this Act and for which a court has not confirmed the amount
of arrearages and rendered a money judgment.
Act of May 25, 2001, 77th Leg., R.S., ch. 1491, § 3, 2001 Tex. Gen. Laws at
5295. This was unlike the language in the 1993 amendment, which expressly
reached backward by two years in setting out the circumstances to which the law
applied. See Act of May 6, 1993, 73rd Leg., R.S., ch. 150, §§ 1, 3(b), 1993 Tex.
Gen. Laws at 302; W.G.S., 107 S.W.3d at 629–30 (observing that procedural or
remedial laws that do not disturb vested rights can apply retroactively and that
applying statute to a parent who failed to pay child support involved no vested
right).
12
678, 79th Leg., R.S. (2005), available at
http://www.lrl.state.tx.us/scanned/srcBillAnalyses/79-0/HB678.pdf (last visited
May 6, 2016). House Bill 678 “clarifie[d] the application of the effective date of
th[e] amendment by providing that any unpaid child support that accrued before
January 1, 2002, accrued at the interest rate in effect at the time the child support
payment became delinquent.” House Comm. on Jurisprudence, Bill Analysis,
Tex. H.B. 678, 79th Leg., R.S. (2005). Therefore, all of the arrearages from
January 1, 2002 onward and the interest accumulated on the cumulative total
should have been calculated using the 6% annual interest rate, while the
arrearages and interest accruing before January 1, 2002 were subject to section
157.265’s predecessors. See id.
C. Evidence
In addition to the payment records at issue in S.G.’s Exhibits 5 and 7, the
trial court heard testimony from R.C. that the Tarrant County payment history
contained all of the child support payments that he had made and his admission
that he owed unpaid child support and arrearages in the amount of “a little over”
$104,000 as reflected on the Tarrant County Child Support Office’s records. The
trial court also heard testimony from S.G. that she stopped receiving child
support payments approximately four years after the divorce and had received no
direct payments. Based on the children’s ages at the time of the divorce in June
1986, R.C. was obligated to make approximately 16 years of child support
payments, ending in September 2002 (over 832 payments of $65 each, totaling
13
more than $50,000 before interest) but according to his exhibit from Tarrant
County, he paid only $12,369.80. Based on the evidence provided, and viewed
in its most favorable light, the trial court could have reasonably concluded that
R.C. owed unpaid child support and interest, and that the amount he owed was
at least the amount reflected in the Tarrant County record and to which he
stipulated: $104,862.27.
However, although S.G.’s exhibits show that the interest rate changed to
10% on September 1, 1991, they are silent as to what rate, if any, applied prior to
September 1, 1991.9 Cf. Act of May 23, 1991, 72nd Leg., R.S., ch. 467, §§ 1, 6,
1991 Tex. Gen. Laws at 1695 (stating that the Act took effect on September 1,
1991, and applied to child support due and owing after the statute’s effective
date); Castle, 960 S.W.2d at 143–44 (stating that before September 1, 1991,
Texas common law favored the award of prejudgment interest for delinquent
child support payments).
Further, the portion of S.G.’s exhibits referencing the June 6, 1986 to
August 27, 1993 time period merely states at the top of the first page, “Nominal
Annual Rate . . . : 10.000%,” even though, as set out above, the 1993
amendment to the statute “reache[d] back” and applied a 12% simple interest
rate per year to arrears due and owing on September 1, 1991, in addition to
9
R.C. stopped making regular child support payments in 1986, the first
year that the order went into effect.
14
changing the rate from a monthly calculation.10 See W.G.S., 107 S.W.3d at 629;
Jenkins & Wilhite, O’Connor’s Texas Family Law Handbook at 1104. Nothing in
S.G.’s exhibits reflects either change. Instead, the top of the second portion of
S.G.’s exhibits, reflecting the date range September 3, 1993 to December 31,
2001, states, “Nominal Annual Rate . . . : 12.000%,” ignoring the statutory
requirement of application from September 1, 1991.
Further, S.G.’s exhibits do not show the actual calculations used, making it
impossible for this court to determine how the numbers provided in the exhibits
were calculated, including the $40,000 difference between S.G.’s exhibits and
R.C.’s exhibit. See Chenault v. Banks, 296 S.W.3d 186, 192 (Tex. App.—
Houston [14th Dist.] 2009, no pet.) (“Simply put, we cannot find any way, based
on the evidence presented, to support the trial court’s child support arrearages
calculation.”). Although R.C. offered no evidence beyond the interest rates
stated in his exhibit to controvert the interest rates recited in S.G.’s exhibits, R.C.
did not bear the burden of proof on this point. Consequently, because S.G.
failed to show the correct interest rate as applied, her exhibits were legally and
factually insufficient to support the trial court’s award beyond $104,862.27, the
amount to which R.C. stipulated. Because the trial court lacked sufficient
10
In contrast, R.C.’s copy of the Tarrant County record shows a 12%
interest rate from June 6, 1986 to December 31, 2001, but it also fails to show
any interest calculations used in reaching the $104,862.27 figure.
15
evidence upon which to exercise its discretion, we sustain part of R.C.’s second
point and render judgment for S.G. in the amount of $104,862.27.
D. Attorney’s Fees
In his third point, R.C. argues that the trial court abused its discretion by
awarding attorney’s fees that were incurred in securing S.G.’s default judgment,
which was later set aside by the granting of his motion for new trial. Without
citation to authority, R.C. asserts that “[t]he granting of the Motion for New Trial
should have legally voided all the legal work performed in securing the default
judgment.”11 See Tex. R. App. P. 38.1(i).
11
S.G. responds that the award of attorney’s fees was mandatory under
section 157.167(a). Family code section 157.167(a) provides, “If the court finds
that the respondent has failed to make child support payments, the court shall
order the respondent to pay the movant’s reasonable attorney’s fees and all court
costs in addition to the arrearages.” Tex. Fam. Code Ann. § 157.167(a) (West
2014). When the trial court finds in a child-support enforcement action that the
obligor has failed to make child support payments, it has no discretion but to
order the obligor to pay the obligee’s reasonable attorney’s fees unless it also
finds that there is good cause for the failure to pay. See id. § 157.167(c); Remley
v. Remley, No. 02-07-00044-CV, 2008 WL 4355347, at *9 (Tex. App.—Fort
Worth Sept. 25, 2008, no pet.) (mem. op.).
Further, R.C.’s argument that the granting of a new trial “legally voided all
the legal work performed in securing the default judgment” is simply not a correct
statement of the law. See Dir., State Employees Workers’ Compensation Div. v.
Evans, 889 S.W.2d 266, 270 n.3 (Tex. 1994) (stating that the willingness of a
party to go to trial immediately and pay the expenses of the default judgment are
important factors for the court to look to in determining whether it should grant a
new trial); Sw. Warren, Inc. v. Crawford, 464 S.W.3d 822, 831 (Tex. App.—
Houston [1st Dist.] 2015, no pet.) (stating that appellants’ offer to reimburse
appellee for the attorney’s fees she incurred in obtaining her default judgment
was sufficient to rebut appellee’s claim of financial hardship); see also L’Arte de
la Mode, Inc. v. The Neiman Marcus Grp., 395 S.W.3d 291, 298 (Tex. App.—
Dallas 2013, no pet.) (“The trial court may not deny the motion for new trial based
16
On September 24, 2013, R.C. filed a motion for new trial, seeking to set
aside the default judgment that had been entered against him on August 28,
2013. R.C.’s motion met the Craddock12 test in that it: (1) alleged that he had
used diligence and that his failure to answer was the result of a mistake, not
conscious indifference, (2) alleged that he had meritorious defenses, and (3)
alleged that the setting aside of the default judgment would not prejudice S.G.
See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009)
(reciting Craddock test’s three elements); In re B.Q.S., No. 11-13-00043-CV,
2014 WL 2957451, at *8–11 (Tex. App.—Eastland June 26, 2014, no pet.) (mem.
op.) (applying Craddock when trial court entered a default order of parentage and
ordered appellant to pay child support and retroactive child support).
In addressing the third prong of the Craddock test, R.C.’s motion stated,
“[R.C.] stands ready to pay any costs associated with the taking of the default
judgment.” Having agreed to pay costs associated with the taking of the default
judgment, R.C. cannot now complain on appeal that the reasonable and
necessary attorney’s fees associated with the taking of the default judgment
should not have been included in the judgment.13 See Johnson v. Harris Cty.,
solely on the plaintiff’s unsupported allegations that the defendant will not keep
its promise to pay the plaintiff’s costs and expenses in obtaining the default
judgment.”).
12
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).
13
R.C. claimed in his motion for new trial that he received no notice of the
application for judicial writ of withholding but also stated that “[u]pon receipt of the
17
No. 01-14-00383-CV, 2015 WL 3485913, at *2 (Tex. App.—Houston [1st Dist.]
June 2, 2015, pet. denied) (mem. op.) (holding that a party cannot complain on
appeal that the trial court ordered the action that the party requested). We
overrule R.C.’s third point.
E. Payout Schedule
In his final point, R.C. argues that the trial court should have used its equity
powers to establish a payout schedule on the arrearage judgment because after
it entered judgment, S.G. issued a wage assignment “[a]t the first opportunity” to
garnish more than his net monthly salary. However, in cases in which a trial
court has created a payout schedule, the payout schedule’s presence cannot
prevent execution on a judgment for arrearages—it merely gives the obligee an
additional permissible option for collecting what he or she is entitled to receive
Notice of Application of Judicial Writ of Withholding,” he called S.G.’s attorney
and voiced his objection, then hired an attorney in Corpus Christi who failed to
file an answer or contest the pending court action. R.C. then hired his instant
counsel to assist him. R.C. asserted in his motion for new trial, “The failure of the
Respondent to file a contest before judgment was a mistake or accident caused
by his failure to receive the proper information from the Petitioner’s attorney and
coordination problems between attorneys.” [Emphasis added.] S.G. filed a
response to the motion, claiming that R.C. was properly served with the notice of
application for judicial writ of withholding, and she attached an affidavit by the law
firm employee who prepared the notice of application for judicial writ of
withholding and a green card to show receipt of the notice. S.G. stated in her
response that she had had to hire a lawyer to represent her and prayed for her
“reasonable attorney’s fees for this case.” At the November 2014 hearing, when
R.C.’s attorney stated that the trial court had ruled that S.G.’s lawyer “did these
things without proper notice to them,” the trial court responded, “Well, the Court
found no such thing, but—the Court just set aside a default judgment. That’s all
the Court did. . . . [Y]ou’re attributing findings to this Court this Court never
made.”
18
under the judgment. In re R.C.T., 294 S.W.3d 238, 243 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied) (op. on reh’g) (“The existence of a payout
schedule does not preclude Lynn (or the Attorney General) from utilizing any
available collection efforts, such as a child-support lien.”); In re Dryden, 52
S.W.3d 257, 262–63 (Tex. App.—Corpus Christi 2001, orig. proceeding)
(granting relief when trial court did not have authority to preclude relator from
attempting to collect judgment for arrearages by method other than payout
schedule). Therefore, even if the trial court abused its discretion by not
establishing a payout schedule, neither its presence nor absence could have an
effect on S.G.’s decision to pursue any of the collection options available to her. 14
We overrule R.C.’s final point.
14
Further, family code section 158.007 addresses the limited basis
available to the trial court to create a payout schedule, stating that if the court
“finds that the schedule for discharging arrearages would cause the obligor, the
obligor’s family, or children for whom support is due from the obligor to suffer
unreasonable hardship, the court . . . may extend the payment period for a
reasonable length of time.” Tex. Fam. Code Ann. § 158.007 (West 2014); see In
re D.C., 180 S.W.3d 647, 653 (Tex. App.—Waco 2005, no pet.) (reversing trial
court’s judgment when record did not provide adequate factual basis to support
trial court’s implied finding of “unreasonable hardship” and decision to allow
father to pay off his arrearages over a period of more than two years). The trial
court here implicitly found that its order without a payout schedule would not work
an unreasonable hardship, and as it was the sole judge of the witnesses’
credibility and the weight to be given their testimony, see Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003), we cannot say that it abused
its discretion merely because we might have ruled differently in the same
circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,
558 (Tex. 1995); see also Low v. Henry, 221 S.W.3d 609, 620 (Tex. 2007). R.C.
acknowledges that he “cannot cite any existing case law” to support the
proposition that the trial court abuses its discretion by granting to a petitioner the
automatic remedies available under the family code when an arrearage is
19
IV. Conclusion
Having overruled R.C.’s third and fourth points, we affirm the portion of the
trial court’s judgment pertaining to S.G.’s attorney’s fees billed in connection with
the default judgment and the payout schedule. But having sustained part of
R.C.’s second point based on the legal and factual insufficiency of the evidence
to support more than the amount to which R.C. stipulated, we reverse the
amount of child support arrearages stated in the trial court’s judgment and render
judgment for S.G. in the amount to which R.C. stipulated, $104,862.27.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: WALKER, MEIER, and SUDDERTH, JJ.
DELIVERED: May 12, 2016
reduced to judgment. See, e.g., Tex. Fam. Code Ann. § 157.323 (West 2014)
(setting out automatic remedies in foreclosure of child support liens or suit to
determine arrearages); In re C.D.E., No. 14-14-00086-CV, 2015 WL 452195, at
*3 (Tex. App.—Houston [14th Dist.] Jan. 27, 2015, no pet.) (noting that section
157.323 “does not provide an option authorizing the trial court to vacate or
terminate a lien when arrearages are due and owing”).
20