Charles William Rider v. the Office of the Attorney General and Judy A. Falcon, F/K/A Judy Annette Rider ( 2007 )

                                                                                                        NO. 12-05-00418-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CHARLES WILLIAM RIDER,        §                      APPEAL FROM THE 307TH

APPELLANT

V.       

§                      JUDICIAL DISTRICT COURT OF

THE OFFICE OF THE ATTORNEY

GENERAL AND JUDY A. FALCON,

F/K/A JUDY ANNETTE RIDER,

APPELLEES §                      GREGG COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant Charles William Rider appeals from an order confirming child support arrearage. On appeal, Rider presents five issues. We affirm.

Background

            Rider and Judy Falcon (previously Rider) were divorced in Texas in 1981.  Under the terms of the divorce decree, Rider was ordered to pay child support for the couple’s minor children, C.A.R. and C.W.R., IV, in the amount of $250.00 a week. At some point, Rider moved to California and failed to pay child support as ordered.  In 1984, the Attorney General of Texas filed a petition in the Superior Court of California, Monterey County, for registration of a foreign support order under the Uniform Reciprocal Enforcement of Support Act (“URESA”).  According to the Attorney General, Falcon’s rights to child support had been assigned to the State of Texas, and the Attorney General requested that its child support order be registered, confirmed, and enforced.  The petition alleged that Rider’s arrearages were $35,250.00 as of February 10, 1984.  On March 8, 1985, after a hearing and stipulation by the parties, the court registered and confirmed the 1981 child support order and ordered that Rider pay $150.00 monthly child support for each minor child.  Additionally, the court ordered Rider to pay arrearages totaling $12,300.00 at the rate of $50.00 a month.  All payments were to be made to a district attorney in California before being forwarded to Texas.

            On October 16, 1987, the Attorney General informed Rider that because the California court found his arrearages to be “only” $12,000.00, the office had adjusted Rider’s arrearages to that amount. On October 6, 2004, the Attorney General filed a motion in the Texas trial court that granted the divorce decree, seeking to confirm child support arrearages against Rider in the amount of $328,031.30.¹  In response, Rider filed a special appearance and plea to the jurisdiction, alleging that Texas lost, or no longer had, continuing exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order. Subject to his special appearance, Rider also filed a motion to transfer and response to the Attorney General’s motion. In his response, Rider entered a general denial and alleged estoppel, laches, and res judicata as affirmative defenses.  At trial, Falcon admitted that in 1989, she moved for a few months to California and Virginia before returning to Texas.

            The trial court found that Rider’s arrearages were $237,705.85 and ordered him to pay the child support judgment at the rate of $520.00 a month.  In its findings of fact and conclusions of law, the trial court found as follows:

1.             That Rider was in arrears on his child support obligation according to the 1981 divorce decree as of February 1, 1985.

2.             That the amount of arrearages as of February 1, 1985 was $12,300.00 as determined by a stipulation of the parties and approved by a California superior court on  March 8, 1985.

3.             That the California court was acting under the authority provided by URESA.

4.             That the California court ordered Rider to pay $150.00 a month for each child beginning March 1, 1985, as current child support.

5.             That there have been no intervening or superseding orders.

6.             That URESA does not provide for modification of previous support orders, but instead provides cumulative additional remedies. Thus, the California order, although altering the current support amount, did not amount to a modification of [the] original obligation set forth in the divorce decree.

7.             That the California order did not modify the Texas divorce decree for purposes of calculating subsequent arrearages, as the California order did not specifically provide that it superseded or modified the original order. The California court had the power to determine the arrearage at the time of hearing, but the Texas divorce decree controlled the subsequent arrearage calculation.

This appeal followed.

Jurisdiction

            In his third and fourth issues, Rider argues that Texas lacked jurisdiction under the Uniform Interstate Family Support Act (“UIFSA”) to confirm and enter judgment for the alleged child support arrearages.  He also contends that the California court modified the Texas child support decree and, thus, was the last court of continuing jurisdiction.  Further, he contends that if the Texas court had jurisdiction to enter judgment for the alleged child support arrearages, we should determine that he owed a lesser amount.  The Attorney General argues that Rider has confused subject matter jurisdiction to enforce the Texas decree with continuing, exclusive jurisdiction to modify the order.  Further, under URESA, the Attorney General contends that the California court’s support order did not supersede or nullify the support order in the Texas divorce decree and that the arrearages accrued under both orders were enforceable.

Applicable Law

            The California court registered and confirmed the Texas child support order on March 8, 1985.  The version of URESA in effect in March of 1985 applies to the determination of a Texas court’s power to enforce and modify its own order. See Act of July 19, 1987, 70th Leg., 2d C.S., ch. 49, §§ 1-2, 1987 Tex. Gen. Laws 145, 158, amended by Act of May 26, 1993, 73d Leg., R.S., Ch. 971, § 1, 1993 Tex. Gen. Laws 4212, 4235 (adopting the Revised Uniform Reciprocal Enforcement of Support Act (“RURESA”) to replace URESA and stating that RURESA applies only to an order, decree, or judgment entered on or after November 1, 1987); Cowan v. Moreno, 903 S.W.2d 119, 121-22 (Tex. App.–Austin 1995, no writ).  Under this version of URESA, a Texas court could not exercise its continuing jurisdiction to modify any part of its order if the child and all parties had established and continued to maintain their principal residence or home state outside this state.  Act of May 2, 1983, 68th Leg., R.S., ch. 160, § 6, 1983 Tex. Gen. Laws 691, 707, amended by Act of July 19, 1987, 70th Leg., 2d C.S., ch. 49, § 1, 1987 Tex. Gen. Laws 145, 158,  amended by Act of May 26, 1993, 73d Leg., R.S., Ch. 971, § 1, 1993 Tex. Gen. Laws 4212, 4235.  But its power to enforce and enter a judgment on its order was not affected.  Act of May 2, 1983, 68th Leg., R.S., ch. 160, § 6, 1983 Tex. Gen. Laws 691, 707 (amended 1987 & 1993).  Further, URESA proceedings were ancillary proceedings that did not preclude a party from an action to enforce the original order. State v. Borchers, 805 S.W.2d 880, 882 (Tex. App.–San Antonio 1991, writ denied).

            Further, no order of support issued by a court of this state when acting as a responding state²

 superseded any other order of support, but the amounts for a particular period paid pursuant to either order should be credited against amounts accruing or accrued for the same period under both.  Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, 1973 Tex. Gen. Laws 1411, 1440, amended by Act of July 19, 1987, 70th Leg., 2d C.S., ch. 49, § 1, 1987 Tex. Gen. Laws 145, 158,  amended by Act of May 26, 1993, 73d Leg., R.S., Ch. 971, § 1, 1993 Tex. Gen. Laws 4212, 4235.  Thus, the language of the statute itself contemplated the contemporaneous existence of two valid support orders providing for child support payments in different amounts.  Borchers, 805 S.W.2d at 881-82. Additionally, remedies under URESA were in addition to and not in substitution for any other remedies even though prior orders of support existed in this state or any other jurisdiction.  Act of May 31, 1981, 67th Leg., R.S., ch. 356, § 2, 1981 Tex. Gen. Laws 945, amended by Act of July 19, 1987, 70th Leg., 2d C.S., ch. 49, § 1, 1987 Tex. Gen. Laws 145, 158, amended by Act of May 26, 1993, 73d Leg., R.S., Ch. 971, § 1, 1993 Tex. Gen. Laws 4212, 4235.  This provision, however, did not prevent a responding court from modifying the amount of support, i.e., entertaining an independent action to determine the proper amount of support to be payable in the future.  Whitehead v. Whitehead, 735 S.W.2d 534, 536 (Tex. App.–Tyler 1987, no writ).  By providing for the crediting of payments against amounts accruing under separate orders of support, separate and independently valid orders of support could exist that provided for payment of different amounts.  Id.

            Under the law in effect on the date the Attorney General filed its motion to confirm child support arrearages, 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 current child support, medical support, and child support arrearages, including interest and any applicable fees and costs, had been paid.  Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 15, 1999 Tex. Gen. Laws 3058, 3062 (amended 2005) (current version at Tex. Fam. Code An n. § 157.005(b)(Vernon Supp. 2006)).

Analysis

            In 1981, Rider and Falcon were divorced and the trial court ordered Rider to pay child support.  In 1985, the California court, as a responding court, registered and confirmed the 1981 order and also ordered Rider to pay child support, albeit a different amount.  Under the version of URESA in effect at the time, the Texas trial court had continuing, jurisdiction to enforce and enter a judgment on the child support order, but not to modify it.  See Act of May 2, 1983, 68th Leg., R.S., ch. 160, § 6, 1983 Tex. Gen. Laws 691, 707 (amended 1987 & 1993). Further, even if the children, Rider, and Falcon maintained their residence outside of Texas, the trial court’s power to enforce its order was unaffected.  See Act of May 2, 1983, 68th Leg., R.S., ch. 160, § 6, 1983 Tex. Gen. Laws 691, 707 (amended 1987 & 1993).

            Rider argues that under UIFSA, the trial court lost continuing jurisdiction in 1989 when Falcon and the children moved from Texas. We disagree.  Under UIFSA, the current system of interstate enforcement of child support orders, even if all parties and the child no longer reside in Texas, the support order continues in existence and is fully enforceable unless and until a modification takes place.  Commissioner’s Official Comment to UIFSA Section 205, reprinted in John L. Sampson et al., Texas Family Code Annotated 811 (Aug. 2007 ed.). Further, the state of the residence of the obligor, the individual obligee, or the child for whose benefit the support order was issued affects only the exercise of continuing, exclusive jurisdiction of a tribunal of this state to modify its order.  See Tex. Fam. Code Ann. § 159.205(a)(1) (Vernon Supp. 2006).  Thus, under UIFSA, the trial court’s order was fully enforceable even if the minor children, Rider, and Falcon no longer resided in Texas. See Commissioner’s Official Comment to UIFSA Section 205, reprinted in John L. Sampson et al., Texas Family Code Ann. 811 (Aug. 2007 ed.).

            Rider also argues that the California court had continuing jurisdiction because it modified the Texas child support order. Under URESA, the California court had jurisdiction to modify the amount of support to be payable by Rider in the future.  See Whitehead, 735 S.W.2d at 536.  The version of URESA in effect in 1985 contemplated the contemporaneous existence of two valid support orders providing for child support in different amounts.  See Borchers, 805 S.W.2d at 881-82.  Thus, the California and Texas orders were valid support orders even though Rider was ordered to pay different amounts of child support under each order. Under URESA, payments were to be credited against amounts accruing under separate orders of support.  See Whitehead, 735 S.W.2d at 536; Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, 1973 Tex. Gen. Laws 1441, 1440 (amended 1987& 1993). Rider does not contend that amounts were not properly credited under both orders of support. In its findings of fact, the trial court based Rider’s beginning arrearages on the $12,300.00 determined by the California court, a lesser amount than that alleged by the Attorney General of Texas in 1984.  However, the California order did not supersede the Texas child support order and, thus, the trial court did not err in determining that the Texas child support order controlled its calculation of arrearages after 1984.  See Whitehead, 735 S.W.2d at 536.

            Further, when the Attorney General filed its motion in 2004, the trial court had jurisdiction to confirm the total amount of Rider’s child support arrearages and render judgment for past due child support until all child support arrearages were paid.  See Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 15, 1999 Tex. Gen. Laws 3058, 3062 (amended 2005). Because the Attorney General’s motion  sought enforcement, not modification, the trial court had jurisdiction to confirm the amount of Rider’s arrearages, enter a judgment on those arrearages, and calculate arrearages according to the Texas child support order.  Accordingly, we overrule Rider’s third and fourth issues.

Affirmative Defenses

            In his first and second issues, Rider argues that it was not “just, honest and fair dealing to render judgment” on the Attorney General’s motion to confirm child support arrearages.  He further contends that the Attorney General is barred from collecting child support arrearages in Texas because of laches and estoppel.  The Attorney General argues that Rider’s estoppel and laches defenses fail because the Office of the Attorney General, as a state agency, is not subject to either defense.

            According to section 231.109 of the Texas Family Code, an attorney employed to provide Title IV-D services represents the interests of the state and not the interest of any other party.  Tex. Fam. Code Ann. § 231.109(d) (Vernon Supp. 2006).  The Office of the Attorney General is designated as the state’s Title IV-D agency.  Tex. Fam. Code Ann. § 231.001 (Vernon 2002). Subject to certain exceptions that are not applicable here, the general rule is that when a unit of government is exercising its governmental powers, it is not subject to estoppel.  See Bowman v. Lumberton Indep. Sch. Dist., 801 S.W.2d 883, 888 (Tex. 1990).  As the Title IV-D agency, the Office of the Attorney General is a unit of government exercising its governmental powers.  See Bowman, 801 S.W.2d at 888.  Thus, the Attorney General is not subject to the defense of estoppel.

            In actions brought under the Texas Family Code, the doctrine of laches does not apply, unless some extraordinary circumstances exist that would render inequitable the enforcement of the petitioner’s right after a lengthy delay.  Reyna v. Attorney General, 863 S.W.2d 558, 559 (Tex. App.–Fort Worth 1993, no writ).  The version of section 157.005, subsection (b) of the Texas Family Code in effect on October 6, 2004 provided that the court retained jurisdiction to confirm the total amount of child support arrearages and render judgment for past due child support until the date all current child support, medical support, and child support arrearages, including interest and any applicable fees and costs, had been paid.  Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 15, 1999 Tex. Gen. Laws 3058, 3062 (amended 2005).

            Rider complains that the Attorney General waited twenty-four years to file an action to confirm his child support arrearages. At the time of the Attorney General’s motion, however, there was no statute of limitations applicable to a court’s jurisdiction to confirm and render judgment for child support arrearages other than payment of child support arrearages.  See  Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 15, 1999 Tex. Gen. Laws 3058, 3062 (amended 2005).  Laches should not bar an action on which limitations has not run unless allowing the action “would work a grave injustice.”  Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998) (quoting Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 170 (1943)).  Other than length of time, Rider does not point to any injustice he suffered because the Attorney General waited twenty-four years to file its motion. Thus, Rider’s laches defense fails on the merits. Accordingly, we overrule Rider’s first and second issues.

Default Judgment

            In his fifth issue, Rider argues that the 1981 default judgment should be reversed and held to be of no force and effect because the making of a record of testimony was waived by the parties with the consent of the court.  The 1981 divorce decree stated that Rider did not appear and wholly made default.  A party who did not participate in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Texas Rule of Appellate Procedure 26.1(a), may file a restricted appeal.  Tex. R. App. P. 30.  In a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed. Tex. R. App. P. 26.1(c).  Because Rider did not participate in the hearing and did not file any of the documents identified in Rule 30, he could have filed a notice of restricted appeal.  See Tex. R. App. P. 30.  He did not do so, and therefore has waived his complaint.³  Accordingly, we overrule Rider’s fifth issue.

Disposition

            The judgment of the trial court is affirmed.

                                                                                                    BRIAN HOYLE  

                                                                                                               Justice

Opinion delivered October 17, 2007.

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

(PUBLISH)

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¹ The Attorney General alleged that Rider’s prior arrearage of court ordered child support as of October 1, 1981 was $2,250.00. Since October 1, 1981, Rider’s accrued child support was $174,500.00 and his accrued interest was $190,849.43. Rider had paid $39,568.18 in child support since October 1, 1981 and, thus, his total arrearage as of August 17, 2004 was $328,031.30.

² A “responding state” means any state in which any proceeding pursuant to the proceeding in the initiating state is or may be commenced.  Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, 1973 Tex. Gen. Laws 1411, 1434, amended by Act of July 19, 1987, 70th Leg., 2d C.S., ch. 49, § 1, 1987 Tex. Gen. Laws 145, 158, amended by Act of May 26, 1993, 73d Leg., R.S., Ch. 971, § 1, 1993 Tex. Gen. Laws 4212, 4235.

³ The paragraph stating that the making of a record of testimony was waived appears to be crossed out with two sets of initials beside it.  Therefore, the judgment does not show that no record of the proceedings was made.  See Tex. Fam. Code Ann. § 105.003(c) (Vernon 2002) (record shall be made in such cases unless waived by parties with consent of court).