Kenneth Labarron Flowers v. Office of the Attorney General ( 2020 )

Affirmed and Memorandum Opinion filed February 13, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00714-CV
KENNETH LABARRON FLOWERS, Appellant
V.
OFFICE OF THE ATTORNEY GENERAL, Appellee
On Appeal from the 311th District Court
Harris County, Texas
Trial Court Cause No. 2015-56431
MEMORANDUM OPINION
Appellant Kenneth Labarron Flowers appeals an order confirming child
support arrearage. In two issues Flowers argues (1) the Louisiana court lacked
jurisdiction over his divorce; and (2) a fact issue exists as to whether the underlying
order is void. We affirm.
BACKGROUND
On August 16, 2006, Flowers and his wife were divorced in Louisiana and
Flowers was ordered to pay child support of $1,000 per month beginning March 1,
2003 and monthly thereafter. On September 22, 2015, the Attorney General of Texas
(OAG) filed a Motion to Confirm Support Arrearage and Suit for Modification of
Support Order in Harris County District Court. The OAG alleged that Flowers failed
to pay court-ordered child support in the amount of $148,000 as of June 2, 2015. The
OAG requested confirmation of the arrearage and modification of the divorce
decree. A certified copy of the Final Judgment of Divorce from the State of
Louisiana was attached to the OAG’s motion.
On September 30, 2016, the OAG filed a Motion for Enforcement under the
Uniform Interstate Family Support Act (UIFSA) seeking registration of the
Louisiana divorce judgment in Texas. See Tex. Fam. Code Ann. § 159.101 et. seq.
On November 12, 2015, Flowers was personally served with the Notice of
Registration of Foreign Support Order, which notified the parties that “[a] hearing
to contest the validity or enforcement of the registered order must be requested
within 20 days after the date of personal service of this notice.”
On December 3, 2015, Flowers filed an “Answer to Notice of Registration of
Foreign Support Order, Motion to Confirm Arreage [sic], and Suit for Modification
of Support Order.” Flowers’s answer denied the existence of a child support
arrearage but did not request a hearing to contest the validity or enforcement of the
Louisiana judgment.
On April 17, 2018,1 the associate judge signed an order confirming child
support arrearage in the amount of $147,999.92 owed by Flowers as of March 8,
2018. Flowers requested de novo review of the associate judge’s ruling by the
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In the intervening years Flowers sought and received a continuance of the Texas action
while he filed a challenge to the Louisiana court’s jurisdiction over the 2006 divorce in Louisiana.
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referring court. See generally Tex. Fam. Code Ann. § 201.015.
After a de novo hearing, the trial court made the following findings of fact:
• The Court has jurisdiction over the parties and the matter made
the subject of this suit.
• On August 6, 2006, a Final Judgment of Divorce from Orleans
Parish, Louisiana, Docket No. 06-6598, styled In the Marriage of
Ila L. Flowers and Kenneth L. Flowers, and in the Interest of
[K.F.] and [K.F.], Children (hereinafter the “Divorce Decree” or
the “Foreign Support Order”) was signed. As part of the Divorce
Decree, Kenneth Flowers was ordered to pay child support in the
amount of $1,000/month, beginning March 1, 2003 and monthly
thereafter.
• On September 22, 2015, a Notice of Registration of Foreign
Support Order was filed in the 311th District Court, with the
Divorce Decree attached thereto. The Notice of Registration of
Foreign Support Order notified the parties that “[a] hearing to
contest the validity or enforcement of the registered order must
be requested within 20 days after the date of personal service of
this notice.”
• On September 22, 2015, the Texas OAG filed a Motion to
Confirm Support Arrearage and Suit for Modification of [the
Louisiana] Support Order was filed in the 311th District Court.
• On November 12, 2015, Kenneth Flowers was personally served
with the Notice of Registration of Foreign Support Order, Motion
to Confirm Support Arrearage and Suit for Modification of
Support Order.
• On December 3, 2015, Kenneth Flowers filed an Answer to
Notice of Registration of Foreign Support Order, Motion to
Confirm Arrearage and Suit for Modification of Support Order.
• On November 3, 2016, the OAG filed a 1st Amended Motion to
Confirm Support Arrearage and Suit for Modification of Support
Order and to Confirm Un-Reimbursed Medical Expenses.
• On March 19, 2018, the 311th District Court, Associate Judge
Diane Guariglia presiding, heard a Final Trial on a Petition to
Confirm Child Support Arrears. Thomas Singleton appeared at
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trial on behalf of the OAG. Respondents, Kenneth Flowers
(Obligor) and Ila Flowers (Obligee) appeared pro se. At the
conclusion of the trial, the Associate Judge found and confirmed
that Kenneth Flowers was in arrears in the amount of
$147,992.92 as of March 8, 2018, granted a Judgment in favor of
the OAG and against Kenneth Flowers in the amount of
$147,992.92, and ordered Kenneth Flowers to pay $750/mo.,
beginning on the first day of April 2018, and on the first day of
each month thereafter until paid in full.
• On March 22, 2018, newly-retained counsel for Respondent,
Kenneth Flowers, filed a Notice of De Novo Appeal from the
Associate Judge’s ruling.
• On April 17, 2018, the Court signed the Order Confirming Child
Support Arrears based on the Associate Judge’s rendition.
• On May 2, 4, and 14, 2018, the 311th District Court, Judge Alicia
York Presiding, heard the Final Trial de novo. Thomas Singleton
appeared at trial on behalf of the OAG. Carl Selesky appeared on
behalf of Respondent, Kenneth Flowers (Obligor), and Ila
Flowers (Obligee) appeared pro se.
• During the Final Trial, the OAG submitted documentary
evidence in the form of the OAG Pay Record, that the Obligee
adopted as a shorthand rendition of her testimony, showing that
as of April 13, 2018, Kenneth Flowers was in arrears in the
amount of $147,615.30.
• The Court also heard, inter alia, uncontroverted evidence that
Kenneth Flowers made four informal payments toward the
arrearages, totaling $5,000.00.
The trial court made the following “rulings”:
• No party filed a request for hearing to contest the validity or
enforcement of the registered foreign order within 20 days after
notice, per Section 159.605(b)(2) of the Texas Family Code; in
that Kenneth Flowers filed an “Answer” on the 21st day after he
was served with the Notice of Registration of Foreign Support
Order, Motion to Confirm Support Arrearage and Suit for
Modification of Support Order.
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• Pursuant to [Family Code] Section 159.605(b)(3), “the failure to
contest the validity or enforcement of the registered order in a
timely manner will result in confirmation of the order and
enforcement of the order and the alleged arrearages.”
• It is, therefore, FOUND and CONFIRMED that Kenneth
Flowers is in arrears in the amount of $142,615.30, as of May 14,
2018 (calculated as $147,615.30, less agreed credits in the
amount of $5,000.00).
• A Judgment is GRANTED against Kenneth Flowers and in favor
of the Attorney General of Texas in the amount of $142,615.30.
• It is ORDERED that Kenneth Flowers pay said child support
judgment by paying $375.00 on 6/8/2018, $375.00 on 6/15/2018,
and thereafter $750.00 each month, beginning July 1, 2018, and
on the first day of each month thereafter until the arrearage is
paid in full, or on the termination of current support for any child
the subject of this suit.
• If Kenneth Flowers has not paid the judgment in full by the date
his current child support obligation ends, he is ORDERED to pay
the remainder of said judgment by paying $1,750.00 each month
on or before the same day of each month until the arrearage is
paid in full.
• It is further ORDERED that an Administrative Writ of
Withholding shall issue by the OAG.
• All other and further relief not granted herein is DENIED.
(emphasis in original)
ANALYSIS
In two issues Flowers challenges the trial court’s judgment alleging the
underlying Louisiana divorce judgment is void.
We review a trial court’s confirmation of an arrearage amount for an abuse of
discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Cline v. Cline,
557 S.W.3d 810, 813 (Tex. App.—Houston [1st Dist.] 2018, no pet.). A trial court
does not abuse its discretion as long as some evidence of a substantive and probative
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character exists to support the trial court’s decision. In re C.A.M.M., 243 S.W.3d
211, 214 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). However, a trial
court’s failure to analyze or apply the law correctly constitutes an abuse of
discretion. Hardin v. Hardin, 161 S.W.3d 14, 19 (Tex. App.—Houston [14th Dist.]
2004, no pet.).
Although a record was made of the trial before the referring court Flowers has
not filed a reporter’s record of the trial in this court. When an appellant does not file
a reporter’s record the court of appeals will assume the trial court heard sufficient
evidence to make all necessary findings in support of the judgment. Vickery v.
Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.—Houston [14th
Dist.] 1999, pet. denied). Because there is no record of the de novo hearing before
the trial court, in our analysis, we must assume the missing record contains sufficient
evidence to support the trial court’s judgment and findings. Hebisen v. Clear Creek
Indep. Sch. Dist., 217 S.W.3d 527, 536 (Tex. App.—Houston [14th Dist.] 2006, no
pet.).
Section 159.607 of the Family Code provides defenses to registration of a
foreign order in Texas Family Courts:
(a) A party contesting the validity or enforcement of a registered order
or seeking to vacate the registration has the burden of proving one or
more of the following defenses:
(1) the issuing tribunal lacked personal jurisdiction over the contesting
party;
(2) the order was obtained by fraud;
(3) the order has been vacated, suspended, or modified by a later order;
(4) the issuing tribunal has stayed the order pending appeal;
(5) there is a defense under the law of this state to the remedy sought;
(6) full or partial payment has been made; or
(7) the statute of limitation under Section 159.604 precludes
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enforcement of some or all of the arrearages.
Tex. Fam. Code Ann. § 159.607.
The OAG filed its notice of registration of the Louisiana support order
pursuant to Subchapter G of the Texas Family Code and Flowers received notice on
November 12, 2015. In order to contest the validity or enforcement of the Louisiana
support order and assert his defense that the underlying order was void, Flowers was,
pursuant to Sections 159.605 and 159.606, required to request a hearing within 20
days after notice of the registration. The record reflects that Flowers did not comply
with this requirement, and the order of arrearage was confirmed by operation of law.
See Tex. Fam. Code Ann. § 159.606(b); Glass v. Williamson, 137 S.W.3d 114, 119
(Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that failure to comply with
Family Code section permitting defenses to be raised results in confirmation of
arrearage by operation of law).
In Flowers’s brief on appeal he argues “the 2006 Final Judgment of Divorce
is null and void by operation of law by virtue of being rendered in a parish of
improper venue in direct violation of La. C.C.P. Art. 3941.” See La. Code Civ. Proc.
Ann. art. 3941 (“An action for an annulment of marriage or for a divorce shall be
brought in a parish where either party is domiciled, or in the parish of the last
matrimonial domicile.”).
Because the Louisiana judgment was confirmed by operation of law, we may
not consider Flowers’s arguments about the original divorce judgment. See Glass,
137 S.W.3d at 119. Moreover, even if we could consider Flowers’s arguments,
because we have no record of the trial de novo, we must assume any evidence
presented supports the trial court’s judgment. The Louisiana judgment was
confirmed by operation of law because Flowers failed to comply with Sections
159.605 and 159.606 of the Texas Family Code. Flowers’s failure precluded him
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from raising a defense under Section 159.607. See Tex. Fam. Code Ann. §
159.606(b).
CONCLUSION
We overrule Flowers’s issues on appeal and affirm the trial court’s judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
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