Thelma L. Harmon v. Kevin Lamar Sutton

Opinion issued December 28, 2021
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00147-CV
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THELMA L. HARMON, Appellant
V.
KEVIN LAMAR SUTTON, Appellee
On Appeal from the 308th District Court
Harris County, Texas
Trial Court Case No. 2005-06414
MEMORANDUM OPINION
Thelma L. Harmon appeals from an order that directs Kevin Lamar Sutton to
make monthly payments to her toward a child support arrearage. In a single issue,
Harmon argues that the trial court erred by ordering periodic payments that did not
require the arrearage to be paid off within two years as required by section 158.003
of the Texas Family Code. Sutton did not file an appellee’s brief. We reverse and
remand.
Background
This case involves the support of one minor child, born on August 13, 2002,
to Sutton and Danielle Smith. The suit affecting the parent-child relationship
(“SAPCR”) began around June 2005. Harmon intervened in the SAPCR and is the
minor child’s aunt. At some point before a final order was signed, Sutton was
ordered to pay child support to Harmon. In September 2006, the court found Sutton
to be in contempt for failure to pay child support and granted Harmon a judgment
for arrearages.
In October 2006, the trial court signed a final order in the SAPCR. The court
appointed Harmon and Sutton as joint managing conservators of the child, granting
each respective rights and duties. The order dictated that the minor child would
reside with Harmon and provided for scheduled parenting time for Sutton.
Sutton and Smith were each ordered to pay child support to Harmon until the
child turned 18, graduated from high school, married, or died. The order states that
beginning September 1, 2006, Sutton must pay $160 per month in child support
and $70 per month in medical support.
In 2019, Harmon filed a motion to enforce child support by contempt. She
alleged that Sutton had failed to comply with a September 2006 order holding him
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in contempt for failing to pay child support. She alleged that he did not comply
with the terms of the court’s order because he failed to timely pay child support
and medical support. She sought a cumulative judgment against Sutton, including
outstanding principal and interest due under the September 1, 2006, order and
additional past-due child support and interest that had accrued since the October
2006 SAPCR judgment.
The trial court held a hearing in January 2020. Harmon testified that Sutton
had been ordered to pay her $160 per month in child support and $70 per month in
medical support. She testified that Sutton had not paid any support. During her
testimony, the court admitted into evidence earning statements from Sutton’s job
that dated back to 2013. The evidence showed that Sutton’s annual gross income
was the following:
2013 $41,130
2014 $49,516
2015 $59.077
2016 $58,225
2017 $55,256
2018 $72,099
Harmon also testified that the business records showed that as of July 7, 2019,
Sutton had earned $46,654 in 2019.
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Sutton was present at the hearing with his attorney. He objected to Harmon’s
motion, claiming that, due to a punctuation error, the original order only ordered
him to pay one child support payment and did not order him to pay recurring
monthly child support. The trial court overruled his objection. Sutton did not put
on any witnesses or introduce any evidence. At the conclusion of the hearing, the
court found Sutton in contempt of court for failure to pay support. The court
ordered him confined to jail for 30 days but suspended the commitment and placed
him on community supervision for six months.
The court found that Sutton owed child support arrearages, including interest
and past judgments awarded, totaling $37,653.79 as of October 18, 2019. The court
ordered that Sutton pay $100 per month toward the child support arrearage until
paid in full, with the amount increasing to $250 per month following emancipation
of the minor.1
The court also found that Sutton owed cash medical support arrearages
including interest of $15,008.96 as of October 18, 2019. The court ordered him to
pay $50 per month until paid in full while the child was a minor and ordered that
the amount increase to $100 per month following emancipation. The court also
awarded Harmon $2,500 in attorney’s fees.
1
The minor was expected to become emancipated around August 2020.
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Unreasonable Hardship
On appeal, Harmon contends that the trial court abused its discretion by
permitting Sutton to pay off his arrearages over a period which will exceed the
two-year limit set by section 158.004 of the Family Code because Sutton presented
no evidence to show that a two-year payout would cause him “to suffer
unreasonable hardship” as contemplated by section 158.007.2 We agree.
A. Standard of Review and Applicable Law
If a motion for enforcement of child support requests a money judgment for
arrearages, the court “shall confirm the amount of arrearages” and render a
cumulative money judgment for the amount of child support and medical support
owed. TEX. FAM. CODE § 157.263(a). We review the court’s ruling under an abuse
of discretion standard. Att’y Gen. of Tex. v. Stevens, 84 S.W.3d 720, 722 (Tex.
App.—Houston [1st Dist.] 2002, no pet.). A trial court abuses its discretion when it
acts arbitrarily or unreasonably, or without any reference to guiding rules and
principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Additionally, a
trial court abuses its discretion if it fails to analyze or apply the law correctly.
Stevens, 84 S.W.3d at 722 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992)).
2
The term “section” as used hereinafter refers to a section of the Family Code
unless otherwise indicated.
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Chapter 158 of the Family Code governs income withholding for child
support. See TEX. FAM. CODE § 158.001–158.507. Section 158.001 requires the
court to order that income be withheld from the disposable earnings of the obligor
“[i]n a proceeding in which periodic payments of child support are ordered,
modified, or enforced.” Id. § 158.001. When withholding for arrearages in addition
to current support, the additional amount withheld for arrearages shall be “an
amount sufficient to discharge those arrearages in not more than two years or an
additional 20 percent added to the amount of the current monthly support order”
whichever results in the arrearages being discharged the fastest. Id. § 158.003.
When no current support is due, the court “shall order” income withholding “in an
amount sufficient to discharge those arrearages in not more than two years.” Id. §
158.004.
The trial court may extend the payment period for “a reasonable length of
time” if it 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.” Id. § 158.007; In re D.C., 180 S.W.3d 647, 652
(Tex. App.—Waco 2005, no pet.). The maximum amount of withholding permitted
is 50 percent of the obligor’s disposable earnings. TEX. FAM. CODE § 158.009.
“Disposable earnings” means earnings remaining after deducting “any amount
required by law to be withheld, union dues, nondiscretionary retirement
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contributions, and medical, hospitalization, and disability insurance coverage for
the obligor and the obligor’s children.” Id. § 101.010.
B. Analysis
Harmon does not dispute the amount of arrearages. Our review is limited to
the issue of whether the court abused its discretion by permitting Sutton to pay the
arrearages over a period which will exceed two years.
The trial court found that Sutton owed $37,653.78 in child support
arrearages and $15,008.96 in medical support arrearages as of October 2019. The
order on arrearages requires Sutton to pay $150 each month toward arrearages
before the child is emancipated and $350 per month toward arrearages after the
minor child becomes emancipated. At the time of the hearing in January 2020, the
child was expected to be emancipated in August 2020. The trial court’s payment
schedule both before and after emancipation permits Sutton to pay the arrearages
over a period which far exceeds two years. See TEX. FAM. CODE §§ 158.003,
158.004.
Harmon argues that the trial court abused its discretion because the trial
court did not conduct an examination into whether the extended payoff time was
necessary to avoid a hardship to Sutton. See id. § 158.007. Sutton did not provide
the court with testimonial or documentary evidence. The only evidence of Sutton’s
financial circumstances was introduced during Harmon’s testimony. The evidence
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confirmed that Sutton was employed between 2013 and 2019 with an annual
income ranging from approximately $41,000 to $72,000. The payoff plan allows
Sutton to pay back the medical support and child support arrearages over 25 and 30
years, respectively. While section 158.009 limits income withholding to 50 percent
of an obligor’s disposable earnings, there is nothing in the record that provides a
factual basis to grant Sutton a hardship exception under section 158.007 that results
in a 25-to-30-year payment plan. See D.C., 180 S.W.3d at 653 (record did not
support implied finding of hardship to extend payment of arrearages over more
than two years).
The trial court abused its discretion in ordering that Sutton pay child support
arrearages during a 25-to-30-year period without making a finding of hardship
under section 158.007. We sustain Harmon’s appellate issue.
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Conclusion
We reverse the part of the trial court’s order that dictates that before the
minor child is emancipated, Sutton must pay $100 in child support arrearage and
$50 in medical support arrearage per month. We reverse the part of the trial court’s
order that states that Sutton shall make periodic payments of $250 in child support
arrearage and $100 in medical arrearage to Harmon after the child is emancipated.
We remand for further proceedings in accordance with this opinion.
Peter Kelly
Justice
Panel consists of Justices Kelly, Hightower, and Farris.
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