in the Interest of D.T., K.T., and M.T., Children ( 2007 )

                NO. 12-05-00420-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§          APPEAL FROM THE 321ST

IN THE INTEREST OF

D.T., K.T. AND M.T.,            §          JUDICIAL DISTRICT COURT OF

MINOR CHILDREN

§          SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Robert Taliaferro and Marcia Taliaferro appeal from trial court orders entered in response to Mabel Sadler’s attempt to collect past due child support from Robert, her ex-husband.  Robert attacks the validity of the order on cumulative money judgment for child support arrearages, and both Robert and Marcia attack the validity of the order appointing a receiver to collect property to satisfy the child support lien.  We affirm.

Background

            Mabel Sadler and Robert Taliaferro were married and had three children before divorcing in Smith County in 1969. Although, at the time of the divorce, Robert was ordered to pay $150.00 per month in child support, he failed to do so. In the early 1970s, Mabel attempted to get Robert to comply with the child support order, and he was found guilty of contempt for failure to pay.  The record is silent regarding any efforts to encourage his compliance until August 31, 2001 when Mabel filed a motion for cumulative judgment of child support arrearages.  An order was entered that year but was set aside in April 2004. 

            Marcia, Robert’s second wife, intervened in the case, claiming her community interest in Robert’s retirement fund, which Mabel had attempted to garnish.  Robert and Marcia were divorced July 15, 2004 in Rusk County.  Marcia was awarded a portion of the retirement benefits in the divorce.

            The Smith County court entered an order on cumulative money judgment on June 29, 2005 finding that Robert owed $286,100.14 plus interest.  On August 29, 2005, the trial court appointed a receiver, ordered Robert and Marcia to turn over all property of their community estate as of the date of their divorce, ordered Robert to turn over all of his real and personal property, and ordered each of them to pay $2,500.00 to the receiver.

1999 Amendment to Family Code Section 157.005

            In his first issue, Robert contends that, based on law in effect prior to September 1, 1999, he had a vested right to not pay the child support arrearage.  He argues that Section 157.005, as amended in 1999, acts as a statute of limitation and is a prohibited ex post facto law under which he would be liable for arrearages that he would not have to pay under prior law. Alternatively, he argues, the residual statute of limitations found in the Civil Practice and Remedies Code should control.  In his fifth issue, Robert contends the trial court’s order violates the Civil Practice and Remedies Code’s proscription against dormant judgments.

            In his fourth issue, Robert asserts that the 1999 amendment violates his due process and due course of law rights as well as protections against retroactive laws under the United States and Texas constitutions.  After acknowledging that the Texas Supreme Court has held contrary to his argument on this issue, Robert urges us to sustain his retroactive constitutional challenge.

            From April 20, 1995 through August 31, 1999, Family Code Section 157.005(b) provided that the trial court retained jurisdiction to hear a motion for enforcement filed not later than four years after the date the child becomes an adult.  Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 177 (amended 1999, 2005, 2007) (current version at Tex. Fam. Code Ann. § 157.005(b) (Vernon Supp. 2007)).  Robert and Mabel’s youngest son recently celebrated his fortieth birthday. Therefore, had Mabel attempted to enforce the child support order between April 20, 1995 and August 31, 1999, Robert could not have been held liable.

            Effective September 1, 1999, Section 157.005(b) provided that the trial court retained jurisdiction to confirm the total amount of child support arrearages and render judgment for past due child support until the date all support arrearages, including interest and any applicable fees and costs, have been paid.  Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 15, 1999 Tex. Gen. Laws 3058, 3062 (amended 2005, 2007).

            The United States Constitution bans ex post facto laws.  See U.S. Const. art. I, § 9, cl. 3.  The Texas Constitution bans ex post facto and retroactive laws.  See Tex. Const. art. I, § 16.  A statute is retroactive if it takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts a new disability that affects acts or rights accruing before it came into force.  In re A.D., 73 S.W.3d 244, 248 (Tex. 2002); Turbeville v. Gowdy, 272 S.W. 559, 561 (Tex. Civ. App.– Fort Worth 1925, no writ).  Robert correctly argues that a statute extending a cause of action’s limitations period cannot apply to revive a suit that would have been time barred before the new statute of limitations took effect because it would impair vested rights and violate the constitutional prohibition on retroactive laws.  See In re A.D., 73 S.W.3d at 248.  However, Section 157.005(b) is not a statute of limitation.

            Statutes providing time limits within which enforcement of an existing support liability may be effected concern the court’s continuing jurisdiction and do not affect substantive rights.  Id. at 249.  Section 157.005 and its predecessors have been consistently interpreted as defining the contours of the court’s jurisdiction, not a time frame within which a party must file a claim or forever lose the right to do so.  In re S.C.S., 48 S.W.3d 831, 833 (Tex. App.–Houston [14th Dist.] 2001, pet. denied).  Section 157.005 addresses how long a court has jurisdiction to enforce its orders and is not a statute of limitation.  Id. at 834.  Accordingly, its application does not impair vested rights.  Id. at 835.  Section 157.005 is a remedial statute governing the time for enforcing the existing legal liability for child support and is not an ex post facto or retroactive law.  See In re A.D., 73 S.W.3d at 248; In re S.C.S., 48 S.W.3d at 835.

            Robert also contends the trial court’s order to pay the arrearage is barred by Texas Civil Practice and Remedies Code Section 34.001, which disallows execution on judgments more than ten years old.  See Tex. Civ. Prac. & Rem. Code Ann. § 34.001 (Vernon 1997).  We disagree.  This ten year dormancy statute comes into play only when child support arrearages are coalesced into a judgment confirming arrearages.  In re S.C.S., 48 S.W.3d at 836.  The ten year dormancy period begins to run upon the signing of a judgment confirming arrearages.  Id.  Therefore, the trial court’s order to pay the arrearage cannot be barred by Section 34.001.

            Finally, Robert asserts that application of Section 157.005 violates his rights to due process and due course of law.  Robert did not make this claim in the trial court and has therefore waived it.  See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993).  We overrule Robert’s issues one, four, and five.

Laches

            In his sixth issue, Robert asserts the trial court erred because it did not allow him to present testimony regarding his argument that laches should apply to bar Mabel’s claim.  Robert provided no authority for this contention and has therefore waived it.  See Tex. R. App. P. 38.1(h); Davis v. Kaufman County, 195 S.W.3d 847, 850 (Tex. App.–Dallas 2006, no pet.). Neither do we find any indication in the record that he presented this issue to the trial court.  See Dreyer, 871 S.W.2d at 698.  Further, this complaint has no merit.  Laches is a defense grounded upon an unreasonable delay by a party in asserting its legal or equitable rights, and a good faith change of position by another to his detriment because of the delay.  Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998).  As explained above, the 1999 amendment, applicable to this case, permits the trial court to retain jurisdiction over collection of the child support arrearage for as long as it is owed.  See Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 15, 1999 Tex. Gen. Laws 3058, 3062.  Further, a parent has a legal duty to support his children.  See Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993) (orig. proceeding).  Under these circumstances, the defense of laches is not available.  See In re Moragas, 972 S.W.2d 86, 93 (Tex. App.–Texarkana 1998, no pet.).  We overrule Robert’s sixth issue.

Sufficiency of the Evidence

            In his second issue, Robert contends the evidence is legally and factually insufficient to support the findings supporting the order on cumulative money judgment and the order appointing a receiver. He complains that no evidentiary hearing was held and there is a complete absence of evidence of the vital facts necessary for the judgments.  He specifically argues there is no evidence to support the trial court’s finding that all community property transferred by the Rusk County divorce decree is subject to the child support lien.

            In his third issue, Robert asserts that the trial court erred in rendering the June 29 order on cumulative money judgment without an evidentiary hearing and without affording him notice of the judgment so he could request findings of fact and conclusions of law.  He complains that he is forced to appeal a ruling that he was not present for and without any information as to the factual basis for the judgment.

            On May 4, 2004, the trial court held a hearing attended by attorneys for Mabel, Marcia, and Robert.  Mabel’s attorney explained that they had reached an agreement on some issues but wished to present argument, not evidence, on the issue of interest.  Robert’s attorney said, “That’s correct.”  They agreed that Robert owes child support principal in the amount of $21,400.00 representing child support due and owing beginning March 5, 1972 and ending December 20, 1984.  That amount reflects 225 days of possession credits.  At the June 29 hearing, it was noted in open court that the parties had previously stipulated to everything except the rate of interest to be applied and that the legislature had determined the applicable interest rate. The trial judge noted that all they needed was a judgment.  After the trial judge encouraged the attorneys for Robert and Marcia to look at the judgment tendered by Mabel’s attorney, both stated on the record that they had no objection to the form of the judgment.  Robert’s attorney then stated that he had only recently begun to represent Robert and had not been involved with previous proceedings.  He specifically stated, “There’s nothing that I can do about the judgment.”  The record ends without any reference to signing the judgment.

            Present at the August 29 hearing were attorneys for Marcia and Mabel as well as an attorney who was appointed receiver.  It was stated on the record that Robert’s attorney called to say he could not be there because he was sick.  Marcia’s attorney said that he had not received notice that a judgment had been entered.  The remainder of that hearing involved the appointment of the receiver. The order appointing the receiver was signed the same day.

            On September 20, 2005, Robert’s attorney filed a document entitled “Defendant’s Notice of Appeal and Request for Hearing.” In it, he listed several complaints, including an explanation that he received notice of the June 29 order on August 29, and requested the Twelfth Court of Appeals to set a hearing and confirm that the trial court clerk did not give him or Marcia the required notice.

            Any party may request the trial court to state in writing its findings of fact and conclusions of law.  The request must be filed within twenty days after the judgment is signed.  Tex. R. Civ. P. 296.  The trial court clerk is required to provide the parties or their attorney of record notice of a signed judgment or appealable order immediately.  Tex. R. Civ. P. 306a(3).  If a party has not received notice or acquired actual knowledge within twenty days after the judgment is signed, he can get an extension to file his request that is calculated from the date of notice.  Tex. R. Civ. P. 306a(4).  To be entitled to the extension, the party alleging late notice of a judgment must file a sworn motion with the trial court establishing the date the party or its counsel first learned of the judgment.  Tex. R. Civ. P. 306a(5).

            Robert did not comply with the requirements of Rule 306a(5) to extend the time to file a request for findings of fact and conclusions of law.  Because he failed to do so, he cannot now complain about the absence of findings of fact and conclusions of law or how their absence has a detrimental effect on his arguments on appeal.  We overrule Robert’s third issue.

            Most appealable issues in a family law case, including a trial court’s confirmation of child support arrearages, are reviewed under an abuse of discretion standard.  In re A.L.G., 229 S.W.3d 783, 784 (Tex. App.–San Antonio 2007, no pet.); Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.–Dallas 2005, no pet.).  A trial court’s judgment is reversed only when it appears from the record as a whole that the trial court abused its discretion.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).  A trial court abuses its discretion as to factual matters when it acts unreasonably or arbitrarily.  Id.  A trial court abuses its discretion as to legal matters when it acts without reference to any guiding principles.  Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). In a nonjury trial, where findings of fact and conclusions of law are neither filed nor timely requested, it is implied that the trial court made all necessary findings to support its judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).  The legal and factual sufficiency of the evidence to support these implied findings may be challenged when, as in this case, a reporter’s record is brought forward.  Id. at 84.  However, under an abuse of discretion standard, arguments of legal and factual sufficiency of the evidence to support the judgment are not independent grounds for asserting error, but are relevant factors in assessing whether a trial court abused its discretion.  Beck, 154 S.W.3d at 902.

            The Family Code provides procedures for enforcement of child support payments, including requesting a money judgment for arrearages.  See Tex. Fam. Code Ann. § 157.001 (Vernon 2002); Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2003, 2007) (current version at Tex. Fam. Code Ann. § 157.263 (Vernon Supp. 2007)).  In rendering a money judgment, the trial court may not reduce or modify the amount of arrearages.  Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2001) (current version at Tex. Fam. Code Ann. § 157.262(a) (Vernon 2002)).  However, the final money judgment may be subject to an offset or counterclaim.  Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2001) (current version at Tex. Fam. Code Ann. § 157.262(f) (Vernon 2002)).  Thus, the trial court acts as a “mere scrivener” in mechanically tallying the amount of arrearage.  Curtis v. Curtis, 11 S.W.3d 466, 471 (Tex. App.–Tyler 2000, no pet.).

            Here, the parties stipulated to the fact that, after applying a possession credit, Robert owed past due child support principal in the amount of $21,400.00 for a specified time period.  Where stipulations are made in open court and entered of record, they are binding.  See Tex. R. Civ. P. 11; Ex parte Burroughs, 687 S.W.2d 444, 446 (Tex. App.–Houston [14th Dist.] 1985, orig. proceeding).  The judgment recites a total amount due that includes interest on the arrearages. Robert had no objection to the judgment at the June 29 hearing.  The judgment further orders Robert to pay six percent interest on the total arrearages, including interest from the date of rendition of the judgment until paid as required by statute.  See Tex. Fam. Code Ann. § 157.265 (Vernon Supp. 2007).  There is evidence of probative force supporting the trial court’s judgment. Accordingly, the trial court did not abuse its discretion in entering the order on cumulative money judgment.

            Robert also complains in his second issue that there is no evidence to support the trial court’s finding in the August 29 order that all community property transferred by his divorce from Marcia was subject to the child support lien.  In Marcia’s first and second issues, she asserts that the trial court abused its discretion when it made findings of fact concerning her property rights without evidence to support them.  Specifically, she argues there is no evidence to support the finding that all community property she and Robert owned was liable for Robert’s delinquent child support. We find no merit in these complaints.

            The child support obligation was court imposed in 1969.  The child support lien arose by operation of law against all of Robert’s nonexempt property, including his retirement plan, regardless of whether the amounts of the arrearages had been adjudicated.  See Act of May 15, 1997, 75th Leg., R.S., ch. 420, § 2, 1997 Tex. Gen. Laws 1660, 1660 (amended 2001, 2003) (current version at Tex. Fam. Code Ann. § 157.312 (Vernon Supp. 2007)); Act of May 27, 1997, 76th Leg., R.S., ch. 556, § 20, 1999 Tex. Gen. Laws 3058, 3062 (amended 2001, 2003, 2007) (current version at Tex. Fam. Code Ann. § 157.317 (Vernon Supp. 2007)).  Community property consists of the property, other than separate property, acquired by either spouse during marriage.  Tex. Fam. Code Ann. § 3.002 (Vernon 2006).  Community property subject to Robert’s sole or joint management, control, and disposition is subject to liabilities he incurred before marriage, including the child support arrearages.  Tex. Fam. Code Ann. § 3.202(c) (Vernon 2006).  Community property subject to Marcia’s sole management, control, and disposition is the only category of community property that is not subject to Robert’s child support obligation because it was incurred before their marriage.  See Tex. Fam. Code Ann. § 3.202(b) (Vernon 2006).  If it is Marcia’s position that some of the community property was under her sole control and management and thus not liable for Robert’s child support obligation, it was her burden to identify and prove that certain property could not be reached by the lien.  See Act of May 15, 1997, 75th Leg., R.S., ch. 420, § 14, 1997 Tex. Gen. Laws 1660, 1663 (amended 2001) (current version at Tex. Fam. Code Ann. § 157.326 (Vernon 2002)). This she failed to do.  Further, Mabel’s arguments at trial and on appeal all indicate an interest in reaching Robert’s retirement fund to satisfy the past due child support obligation.  There is nothing to indicate there is any other community property.  There is no doubt the retirement fund is subject to the lien.  Thus, the trial court did not abuse its discretion in finding that all community property transferred in the divorce was subject to the lien.  We overrule Robert’s second issue and Marcia’s first and second issues.

Turnover Order

            In her third issue, Marcia asserts the trial court erred when it ordered her to turn over all real and personal property she owned to a receiver.  She argues that all property she owned when the August 29, 2005 order was rendered was her separate property and there is no authority under Texas law for her to be required to pay Robert’s debt.  In her fourth issue, she contends, without citing authority, that the trial court erred when it ordered her to pay the receiver for his services.

            In its August 29, 2005 order, the trial court ordered Robert and Marcia to “turn over all real and personal property and title to all real and personal property of their community estate as of July 15, 2004” to the receiver.  As explained above, the trial court did not abuse its discretion in determining that Robert and Marcia’s community estate is subject to the lien.  It is appropriate to collect past due child support through use of a turnover order and receiver.  See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2001, 2007) (current version at Tex. Fam. Code Ann. § 157.264 (Vernon Supp. 2007)); Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (Vernon Supp. 2007); First City Nat’l Bank v. Phelan, 718 S.W.2d 402, 405 (Tex. App.– Beaumont 1986, writ ref’d n.r.e.).  Further, the judgment creditor who obtains turnover relief is entitled to recover attorney’s fees.  Tex. Civ. Prac. & Rem. Code Ann. § 31.002(e).  We overrule Marcia’s third and fourth issues.

Disposition

            Having been presented with no trial court error, we affirm the trial court’s order on cumulative money judgment of June 29, 2005 and its August 29, 2005 order on motion for appointment of receiver.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered December 21, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)