Raymond C. Hennigar v. Susan Cunningham ( 2011 )

Affirmed and Memorandum Opinion filed November 29, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-10-00937-CV
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RAYMOND C. HENNIGAR, Appellant
V.
SUSAN CUNNINGHAM, Appellee
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 1978-27379
MEMORANDUM OPINION
Appellant Raymond C. Hennigar challenges the trial court’s judgment granting his
former wife’s request for a lien and writ of withholding for past-due child support.
Because the amount of the judgment is supported by the record and Hennigar’s remaining
complaints have not been preserved, we affirm the trial court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hennigar and appellee Susan Cunningham were married in 1972 and had a son two
years later. They divorced in 1978, and the trial court appointed Cunningham managing
conservator. Hennigar was ordered to pay child support of $100 per month, in two $50
installments, into the child-support division of Harris County Child Welfare. As of
January 2010, the registry for that division had recorded no payments.
On January 6, 2010, Cunningham filed a notice of child support lien and a notice of
application for judicial writ of withholding. On January 21, 2010, acting pro se, Hennigar
moved to vacate the lien and dismiss the action as time-barred. Cunningham responded
by asking the trial court to foreclose on the lien, determine the amount of unpaid child
support, and award attorney’s fees. An initial hearing before an associate judge was set
for February 17, 2010.
Twenty-five days before the hearing, Cunningham served interrogatories, a request
for production of documents and a request for disclosure in which, among other things, she
asked Hennigar to produce evidence of payment, to state the legal theories on which he
would rely, and to identify persons with knowledge of relevant facts. Because the
requests were served less than 30 days before the hearing, Hennigar did not respond.1 At
the hearing, the associate judge ruled in Cunningham’s favor, granting her request for a
lien and a writ of withholding and awarding her attorney’s fees and $108,442.66 in
past-due child support.
Hennigar retained counsel and timely requested a de novo hearing before the
referring court. In his initial request, he asserted that (1) he owed no child support because
the State possessed no record of arrearages; (2) Cunningham’s claim was rendered
dormant by statute, and a statutory amendment removing child support from the general
dormancy provision was unconstitutional; (3) Cunningham’s claim was barred by the
equitable defense of laches; (4) Cunningham’s notice of lien and the associate judge’s
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See TEX. R. CIV. P. 194.1–194.2 (requests for, inter alia, disclosure of legal theories and persons
with knowledge of relevant facts must be served no later than 30 days before the end of any
applicable discovery period), 196.1 (applying same rule to requests for production), 197.1
(applying same rule to interrogatories); see id. 190.3(1)(A) (in cases under Family Code, discovery
period ends 30 days before the date set for trial).
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order were defective; and (5) the Family Code’s lien-notice provision was
unconstitutional. The de novo hearing was set for April 15, 2010.
Twenty-three days before the scheduled hearing, Cunningham served an additional
request for production and Hennigar responded that the request was untimely. The
hearing was subsequently rescheduled to June 2, 2010. In the interim, Hennigar amended
his request for de novo hearing twice, supplementing his constitutional arguments and
requesting attorney’s fees.
On the day of the de novo hearing, Cunningham filed a motion to exclude the
evidence and witnesses that Hennigar had failed to identify in response to her requests.
Although Hennigar maintained that no answer was required because the discovery requests
were untimely, he nevertheless moved for an extension of time in which to answer the
discovery, and he served his responses the same day. The court granted Cunningham's
motion and excluded the evidence and witnesses that Hennigar had failed to identify in
response to Cunningham’s discovery requests.
Cunningham also moved to strike the amended portions of the request for de novo
hearing on the ground that such a request is analogous to a motion for new trial, and thus,
the Family Code should be construed to permit amendments only within the seven-day
period allotted for making the initial request. Compare TEX. FAM. CODE. ANN. §201.015
(West 2008) (request must specify the issues that will be presented to the referring court
and must be filed within seven days of the notice of the associate judge’s ruling) with TEX.
R. CIV. P. 329b(a) (motion for new trial must be made within thirty days of judgment) and
Moritz v. Preiss, 121 S.W.3d 715, 720–21 (Tex. 2003) (holding that amended motion for
new trial must be filed within the same thirty days of judgment or it preserves nothing for
review). The trial court sustained Cunningham’s motion to strike Hennigar’s
amendments to his request for de novo hearing.
At the de novo hearing, Cunningham testified that Hennigar had failed to make
regular payments and that she sought $111,000.73. She offered three exhibits to prove
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that Hennigar owed this amount. Exhibits A and B—the divorce decree and a copy of the
Harris County child-support division registry showing no payments made—were admitted.
Exhibit C was a chart showing Cunningham’s arrearage calculations; it included a list of all
payments due under the child support order, notations of missed payments for some ten
years that their son resided with Cunningham, and a combination of payments and
possession credits for some four years that their son resided with Hennigar. It totaled the
amount owed and applied interest calculations to arrive at a total of $111,395.55.
Cunningham’s request of $111,000.73 reflected this figure after ―credit[ing Hennigar] for
. . . money that was levied from [Hennigar’s] bank account‖ since the associate judge’s
ruling in February 2010. The trial court admitted Exhibit C ―as a shorthand rendition of
[Cunningham’s] testimony.‖ On cross-examination, however, Cunningham testified that
she did not remember the exact dates that Hennigar had made or missed payments, and
Hennigar moved to strike Exhibit C because of Cunningham’s lack of personal knowledge
of the events it recorded. The trial court sustained his objection and excluded the exhibit.
Cunningham’s counsel then testified as an expert witness that ―[w]hen Ms. Cunningham
came and met with us, she specifically told us about the possession credit . . . [a]nd she also
told us about dates and amounts, and those are reflected in this exhibit.‖ Hennigar
successfully objected to this statement as hearsay. Shortly thereafter, however,
Cunningham’s counsel ―reurge[d] . . . Exhibit C as a summary of the dates, and the
payments, and the amounts due for the [c]ourt and the payments that [Cunningham] has
been [sic] given credit for and the possession credit as an aid to the court.‖ The trial court
admitted the portion of the chart showing ―those amounts that are due on the interest,
but . . . disregard[ed] any payment portion as [Cunningham] could not testify to those.‖
After the de novo hearing, the trial court granted Cunningham’s request for a
child-support lien and writ of withholding for $111,000.73 in arrearages, plus attorney’s
fees. Neither party requested findings of fact and conclusions of law.
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II. ISSUES PRESENTED
In three issues, Hennigar challenges the legal and factual sufficiency of the evidence
and argues that the trial court reversibly erred in striking his amended request for a de novo
hearing and excluding his witnesses.
III. ANALYSIS
A. Evidentiary Sufficiency
In his first issue, Hennigar argues that the evidence is legally and factually
insufficient to support the judgment. We review a trial court’s adjudication of child
support for abuse of discretion. See In re A.L.S., 338 S.W.3d 59, 65 (Tex. App.—Houston
[14th Dist.] 2011, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990)). A trial court abuses its discretion when it acts without reference to any guiding
rules or principles or when it fails to analyze or apply the law correctly. Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992). Under the abuse-of-discretion standard, sufficiency of
the evidence is not an independent ground of error, but is a factor in assessing whether the
trial court abused its discretion. A.L.S., 338 S.W.3d at 65; London v. London, 94 S.W.3d
139, 143–44 (Tex. App.—Houston [14th Dist.] 2002, no pet.). When, as here, no findings
of fact and conclusions of law were requested, we presume that the trial court made all
findings necessary to support the judgment and will uphold those findings if supported by
the record. A.L.S., 338 S.W.3d at 65 (citing Chenault v. Banks, 296 S.W.3d 186, 189
(Tex. App.—Houston [14th Dist.] 2009, no pet.)). In calculating child-support arrearages,
however, the trial court’s discretion is very limited. Id. Although the trial court can
award certain offsets and credits, it has no discretion to forgive or decrease a past
child-support obligation. Id. Thus, in a proceeding to confirm child-support arrearages,
the trial court’s calculations must be based on the payment evidence presented. Id.
Although legal and factual insufficiency are not themselves bases for reversal in this
case, we address them specifically because they are at the core of Hennigar’s argument that
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the trial court abused its discretion. In an appeal of a judgment rendered after a bench
trial, the trial court’s findings of fact have the same weight as a jury’s verdict, and we
review the legal and factual sufficiency of the evidence to support them as we would
review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In a
legal sufficiency challenge, we examine the record in the light most favorable to the
judgment and consider whether the evidence at trial would enable a reasonable and
fair-minded factfinder to reach the verdict under review. See City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005). We credit favorable evidence if a reasonable factfinder
could, and disregard contrary evidence unless a reasonable factfinder could not. See id.
The evidence is legally sufficient unless (a) there is a complete absence of a vital fact; (b)
the court is barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a
scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. Id. at
810. The record contains more than a scintilla of evidence, and thus the evidence is
legally sufficient, if reasonable minds could form differing conclusions about a vital fact’s
existence. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782–83 (Tex. 2001).
Conversely, the evidence is insufficient when the evidence offered to prove a vital fact is so
weak as to do no more than create a mere surmise or suspicion of its existence. Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). A judgment is factually
sufficient unless it is so against the great weight and preponderance of the evidence as to be
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175. 176 (Tex. 2004) (per curiam).
Hennigar challenges the legal sufficiency of the evidence on three bases. First, he
argues that there was a complete absence of evidence to support the amount of the trial
court’s judgment. At trial, Cunningham testified that Hennigar failed to make regular
payments and that she sought $111,000.73, a figure based on the total amount reflected in
the admitted portion of Exhibit C. Hennigar claims that this figure was derived solely
from the excluded portion of Exhibit C, which documents specific dates on which
Hennigar allegedly missed or made payments and credits him with a combination of
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payments and possession credits for the years that their son lived with him. He argues that
when the trial court excluded that portion of the exhibit, it ―effectively removed the
evidence necessary for the trial court to ascertain the amount, if any, of arrearages.‖ Thus,
he claims, there was a complete absence of admissible evidence to support the judgment.
This argument merges with Hennigar’s second asserted basis for legal insufficiency—that
the trial court was barred by the rules of evidence from giving weight to the excluded
portion of Exhibit C, which, as with respect to his first argument, he characterizes as the
only evidence offered to prove how much he owed. Hennigar asserts that by basing its
judgment on the admitted portion of Exhibit C—which sets forth the total amount owed in
missed payments and calculates interest—the trial court necessarily relied upon the
excluded portion of the exhibit, from which that total was derived. Hennigar also argues
that the trial court was barred from considering the admitted portion of Exhibit C because it
was supported only by Cunningham’s attorney’s statements that it accurately reflected the
total amount owed—statements, Hennigar claims, that were inadmissible both as improper
expert testimony and as hearsay. Thus, he argues, the trial court was barred by multiple
rules of evidence from giving weight to the only evidence offered to prove how much he
owed. He concludes that because the judgment depended solely upon inadmissible
evidence—the excluded portion of Exhibit C and the statements by Cunningham’s attorney
that the admitted portion was correct—the admissible evidence proving the amount he
owed was no more than a scintilla. As to factual insufficiency, Hennigar argues that the
judgment, by relying solely upon inadmissible evidence and disregarding his testimony
that he made all required payments, was so against the great weight and preponderance of
the evidence as to be clearly wrong and unjust.
Hennigar assumes that the excluded part of Exhibit C was the sole evidence
supporting the judgment; to sustain this assumption, he argues that all other evidence
supporting the judgment, such as Cunningham’s testimony and the admitted portion of
Exhibit C, implicitly derived from the excluded portion of Exhibit C. He ignores the fact
that—in addition to Cunningham’s own testimony—the divorce decree establishes the
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dates on which Hennigar was obligated to make payments, and the Harris County
child-support registry shows that he failed to make those payments in the manner required.
Those two exhibits, together with a straightforward calculation of interest, would actually
have been sufficient to establish that Hennigar owed more than the amount that
Cunningham requested, which credits Hennigar with a combination of payments and
possession credits for the approximately four years in which their son resided with him.
Viewing the record in the light most favorable to the judgment, the evidence at trial
was legally sufficient to support the judgment without resort to the excluded portion of
Exhibit C. The judgment was also not so against the great weight and preponderance of
the evidence as to be clearly wrong and unjust, and therefore was factually sufficient.
Having rejected Hennigar’s challenges to the sufficiency of the evidence, we conclude that
the trial court did not abuse its discretion. Accordingly, we overrule Hennigar’s first
issue.
B. Amended Requests for De Novo Hearing
Hennigar next argues that the trial court erred in striking his amended requests for
de novo hearing. In his initial request, he asserted that (1) he owes no child support
because the State has no record of the arrearage; (2) Cunningham’s claim is rendered
dormant by statute, and a statutory amendment removing claims for unpaid child support
from the general dormancy provision is unconstitutional; (3) Cunningham’s claim is barred
by the equitable defense of laches; (4) Cunningham’s lien notice and the associate judge’s
order are defective; and (5) the Family Code’s lien-notice provision is unconstitutional.
In his amended requests, he supplemented his constitutional arguments and requested
attorney’s fees. At the de novo hearing, Cunningham moved to strike these amendments.
Although her motion was sustained, Hennigar raised his additional constitutional issue in
his closing argument without objection.
The only two additions to Hennigar’s last amended request were the constitutional
argument, which he actually argued to the court, and a request for attorney’s fees—which,
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given the outcome of the case, was a moot point. There is thus no basis for Hennigar’s
complaint. We therefore overrule his second issue.
C. Exclusion of Witnesses
Finally, Hennigar contends that the trial court erred in excluding ―evidence and
witnesses‖ at the de novo hearing. He does not, however, identify what evidence was
allegedly excluded. Cunningham served discovery requests asking Hennigar to, inter
alia, produce evidence of payment, state the legal theories on which he would rely, and
identify persons with knowledge of relevant facts. At the de novo hearing, Hennigar
testified that he had paid in accordance with his obligations. He further testified that he
had kept records of his payments for years but had discarded them after his son turned
twenty. Thus, Hennigar did produce evidence of payment—his own testimony that he had
paid. He was also permitted, in his closing argument, to state multiple legal theories on
which he relied. The only testimony Hennigar specifically identifies on appeal as
excluded is that of certain witnesses who had testified at his initial hearing before the
associate judge.
We will not reverse a judgment based on the exclusion of testimony unless (1) the
trial court abused its discretion in excluding the evidence, and (2) the error probably
resulted in an improper judgment. Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied). To preserve the complaint that the trial
court reversibly erred in excluding a witness’s testimony, a litigant must make an offer of
proof. Ludlow v. DeBerry, 959 S.W.2d 265, 270 (Tex. App.—Houston [14th Dist.] 1997,
no pet.). Without evidence of the substance of the testimony, we cannot determine that
the trial court reversibly erred in excluding it. Id. Hennigar failed to make an offer of
proof, and as a result, there is nothing for us to review. Because we are unable to
determine that the trial court reversibly erred, we overrule Hennigar’s third issue.
IV. CONCLUSION
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Having determined that the amount of the judgment is supported by the record and
that Hennigar’s remaining complaints have not been preserved, we affirm the trial court’s
judgment.
/s/ Justice Tracy Christopher
Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.
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