DocketNumber： 03-16-00581-CV
Filed Date： 12/23/2016
Status： Precedential
Modified Date： 4/17/2021
ACCEPTED 03-16-00581-CV 14442075 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/23/2016 3:21:04 PM JEFFREY D. KYLE CLERK No. 03-16-00581-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/23/2016 3:21:04 PM IN THE TIDRD COURT OF APPEALS JEFFREY D. KYLE Clerk AUSTIN, TEXAS BROOKE BRUCE, Appellant, v. CARTER BRUCE, Appellee. On Appeal from the 345th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-FM-06-002028 APPELLANT'S BRIEF ON THE MERITS Kacy L. Dudley State Bar No. 24069638 DUDLEY LAW, PLLC 1717 West Sixth Street, Suite 315 Austin, Texas 78703 (512) 617-3975 (telephone) (512) 479-7910 (facsimile) kdudley@dudley-law.com COUNSEL FOR APPELLANT 1- BRIEF OF APPELLANT BROOKE BRUCE IDENTITY OF PARTIES AND COUNSEL Appellant/Respondent: Brooke Bruce (mother and child support obligee) Counsel for Appellant: Kacy Dudley DUDLEY LAW, PLLC 1717 West Sixth Street, Suite 315 Austin, Texas 78703 Telephone: (512) 617-3975 Facsimile: (512) 479-7910 kdudley@dudley-law. com Appellee/Petitioner: Carter Bruce (father and child support obligor) Counsel for Appellee: CECILIA M. WOOD ATTORNEY AND COUNSELOR AT LAW, P.C. Capitol Center 919 Congress Avenue, Suite 830 Austin, Texas 78701 Telephone: (512) 708-8783 Facsimile: (512)708-8787 Appellee/Respondent State of Texas, by and through the Office of the Attorney General, Child Support Division Counsel for Appellee: Brittany Baumgartner Assistant Attorney General 508 Old Austin Hutto Rd. Pflugerville, Texas 78660 Telephone: (512) 339-1135 Facsimile: (512) 339-9051 2 - BRIEF OF APPELLANT BROOKE BRUCE TABLE OF CONTENTS Identity of Parties and Counsel ................................................................................. 2 Table of Contents ...................................................................................................... 3 Index of Authorities ................................................................................................... 5 Statement of the Case ................................................................................................ 8 Statement on Oral Argument ..................................................................................... 9 Issues Presented for Review ...................................................................................... 9 Statement of Facts ..................................................................................................... 9 A. Appellee Owed a Duty to Pay Monthly Periodic Child Support for the Support of the Child ................................................................................................ 9 B. Appellee Carter Bruce Began a Pattern of Inconsistently Paying Support Despite Having the Financial Ability to Pay Support .......................................... 11 C. The Record Reflects Contradictory Evidence Regarding the $10,000, $1,000, and $1,816.23 Offset Claims ................................................................................ 12 D. Personal and Business Financial Transactions Between the Parties After Their Divorce Were Not Child Support Payments .............................................. 15 E. Attorney's Fees Incurred by Brooke Bruce ................................................... 16 Summary of the Argument ...................................................................................... 17 Argument ................................................................................................................. 18 I. A DECISION REGARDING THE CONFIRMATION OF CHILD SUPPORT ARREARAGE IS REVIEWED FOR AN ABUSE OF DISCRETION 18 II. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING AN OFFSET TO CHILD SUPPORT ARREARAGE THAT IS NOT AUTHORIZED BY STATUTE OR OTHER LAW ...................................................................... 20 A. Unpaid Child Support Is an Unfulfilled Duty to a Child ........................ 21 B. Once the Court Found a Child Support Arrearage, the Trial Court Has an Affirmative Duty to Render Judgment on the Arrearages ............................ 21 C. Discretionary Payments to Third Parties Are Not Considered Child Support .......................................................................................................... 26 3 - BRIEF OF APPELLANT BROOKE BRUCE D.The Trial Court Abused Its Discretion Because It Incorrectly Applied the Law Regarding Allowable Child Support Offsets ........................................ 27 i. The $10,000 and $1,000 Offsets Are Not Statutorily Permissible Offsets or Offsets Contemplated by Ochsner .......................................... 28 ii. The $1,816.83 to the County Tax Assessor Is Not Permissible Offset .................................................................................................................. 31 III. AN OBLIGOR'S CONCLUSORY STATEMENTS ABOUT THE DISCHARGE OF A CHILD SUPPORT OBLIGATION THAT ARE CONTRADICTED BY OTHER EVIDENCE ARE NO MORE THAN A SCINTILLA OF EVIDENCE ENTITLING HIM TO AN OFFSET ................... 31 IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST FOR ATTORNEY'S FEES DESPITE MANDATORY DUTY IMPOSED BY §157.167 OF THE FAMILY CODE IN A CHILD SUPPORT CASE ............... 35 A. A Decision Regarding the Award of Attorney's Fees in a Child Support Enforcement Action is Reviewed De Novo .................................................. 35 B. It Is Error to Deny an Award Attorney's Fees in a Suit to Enforce Child Support .......................................................................................................... 36 Prayer ....................................................................................................................... 38 Appendix ................................................................................................................. 41 4 - BRIEF OF APPELLANT BROOKE BRUCE INDEX OF AUTHORITIES Cases Adair v. Martin,595 S.W.2d 513
(Tex.1980) ......................................................... 21 Attorney Gen. of Texas v. Stevens,84 S.W.3d 720
(Tex. App.-Houston [1st Dist.] 2002, no pet.) ........................................................................................... 19, 22, 23 Beck v. Walker,154 S.W.3d 895
(Tex. App.-Dallas 2005, no pet.). ................ 18, 23 Beesley v. Hydrocarbon Separation, Inc.,358 S.W.3d 415
(Tex. App.-Dallas 2012, no pet.) ....................................................................................................... 32 Berner v. Ferris,538 S.W.2d 658
(Tex. Civ. App.-Amarillo 1976, no writ) ...... 32 BMC Software Belgium, NV. v. Marchand,83 S.W.3d 789
(Tex.2002) ............... 19 Chenault v. Banks,296 S.W.3d 186
(Tex. App.-Houston [14th Dist.] 2009, no pet.)........................................................................................................... 22, 26, 31 City ofKeller v. Wilson,168 S.W.3d 802
(Tex.2005) ............................................ 20 Curtis v. Curtis,11 S.W.3d 466
(Tex. App.-Tyler 2000, no pet.)........................ 20 Doyle v. Doyle,955 S.W.2d 478
(Tex. App.-Austin 1997, no pet.); ................ 18, 19 Ekstrom v. Teems, 14-96-01180-CV,1998 WL 93744
(Tex. App.-Houston [14th Dist.] Mar. 5, 1998, pet. denied) .......................................................................... 37 Finley v. May,154 S.W.3d 196
(Tex. App.-Austin 2004, no pet.). ..................... 35 Galbraith Eng'g Consultants, Inc. v. Pochucha,290 S.W.3d 863
(Tex.2009) ....... 35 Gevinson v. Manhattan Construction Company of Oklahoma,449 S.W.2d 458
(Tex.1969) ............................................................................................................ 32 Higgins v. Higgins, 05-98-02014-CV,2000 WL 1264636
, at *3 (Tex. App.- Dallas Sept. 7, 2000, no pet.) ............................................................................... 28 Higgins v. Smith,722 S.W.2d 825
, 828 (Tex. App.-Houston [14th Dist.] 1987, no writ) ...................................................................................................................... 33 In re A.B.C., 04-99-00113-CV,2001 WL 191557
, (Tex. App.-San Antonio Jan. 31, 2001, pet. denied) ........................................................................................... 23 In re A.L.S.,338 S.W.3d 59
(Tex. App.-Houston [14th Dist.] 2011, pet. denied)36 In re C.S.,2014 WL 972310
(Tex. App.-Eastland Mar. 6, 2014, no pet) ...... 25, 28 In reJ.C.T, 05-12-01290-CV,2014 WL 3778909
(Tex. App.-Dallas July 31, 2014, pet. denied) ................................................................................................. 28 In reJ.S.H, No. 06-09-00101-CV,2010 WL 1568463
(Tex. App.-Texarkana Apr.21, 2010, no pet.) (mem. op.) ....................................................................... 23 In re S.R.O.,143 S.W.3d 237
(Tex. App.-Waco 2004, no pet.) ........................... 21 5 - BRIEF OF APPELLANT BROOKE BRUCE James T. Taylor and Son, Inc. v. Arlington Independent School District,160 Tex. 617
,335 S.W.2d 371
(1960) ................................................................................ 32 Johnson v. Johnson, 03-02-00427-CVC,2005 WL 3440773
(Tex. App.-Austin Dec. 16, 2005, no pet.) ......................................................................................... 35 Lee v. Kaufman, 03-10-00148-CV,2011 WL 3796175
(Tex. App.-Austin Aug. 26, 2011, no pet.) ................................................................................................. 18 Long v. Griffin,442 S.W.3d 253
(Tex. 2014) ......................................................... 37 Mai v. Mai,853 S.W.2d 615
(Tex. App.-Houston [1st Dist.] 1993, no writ)) ....... 19 McFadden v. Deed/er, 03-13-00486-CV,2014 WL 4364540
(Tex. App.-Austin Aug. 27, 2014, no pet.) ......................................................................................... 35 Medrano v. Medrano,810 S.W.2d 426
(Tex. App.-San Antonio 1991, no writ) .. 26, 31 Office ofAttorney Gen. of State v. McBee, 01-08-00433-CV,2009 WL 2961245
(Tex. App.-Houston [1st Dist.] Sept. 17, 2009, no pet.) ................................... 23 Office ofAtty. Gen. of Texas v. Scholer,403 S.W.3d 859
(Tex. 2013) ...... 21, 25, 30 Pioneer Land & Cattle Co. v. Collier, 07-12-00320-CV,2013 WL 2150814
(Tex. App.-Amarillo May 15, 2013, no pet.) .............................................................. 32 Ragsdale v. Progressive Voters League,801 S.W.2d 880
(Tex.1990) (per curiam) .............................................................................................................................. 33 Railroad Comm'n v. Texas Citizens for a Safe Future & Clean Water,336 S.W.3d 619
(Tex.2011) ..................................................................................................... 35 Russell v. Russell,478 S.W.3d 36
(Tex. App.-Houston [14th Dist.] 2015, no pet.) . .............................................................................................................................. 36 Scruggs v. Linn,443 S.W.3d 373
(Tex. App.-Houston [14th Dist.] 2014, no pet.) . .............................................................................................................................. 37 Smith v. Patrick W. Y. Tam Trust,296 S.W.3d 545
(Tex.2009) .............................. 31 Trico Techs. Corp. v. Montiel,949 S.W.2d 308
(Tex. 1997) ................................ 32 Tucker v. Thomas,419 S.W.3d 292
(Tex.2013) ..................................................... 36 Uniroyal Goodrich Tire Co. v. Martinez,977 S.W.2d 328
(Tex.1998) ................. 20 Vickery v. Commission for Lawyer Discipline,5 S.W.3d 241
(Tex. App.-Houston [ 14th Dist.] 1999, pet. denied) .............................................................................19 Walker v
. Packer,827 S.W.2d 833
(Tex.1992) (orig.proceeding) ................... 19,35 Will. v
. Patton,821 S.W.2d 141
(Tex. 1991) ................................................... 21 Zeifman v. Michels,212 S.W.3d 582
(Tex. App.-Austin 2006, pet. denied) 19, 20, 33 6 - BRIEF OF APPELLANT BROOKE BRUCE Statutes Tex. Fam. Code§ 154.183 ...................................................................................... 36 Tex. Fam. Code Ann. § 157 .002 ............................................................................. 27 Tex. Fam. Code Ann.§ 157.162 ....................................................................... 27, 36 Tex. Fam. Code Ann.§ 157.166 ............................................................................. 27 Tex. Fam. Code Ann.§ 157.167 (West 2016) ...................................... 18, 35, 36, 37 Tex. Fam. Code Ann. § 157.263 (West 2016) ................................ 17, 21, 22, 25, 29 Tex. Fam. Code Ann.§§ 157.008-.009 ............................................................. 23, 29 7 - BRIEF OF APPELLANT BROOKE BRUCE STATEMENT OF THE CASE Nature of the case. Appellee, Carter Bruce, sued Appellant, Brooke Bruce, to recover child support payments made in excess of child support order. (C.R. at 43, 144). Appellant filed a counterclaim requesting an enforcement of the child support order and confirmation of child support arrears. (C.R. at 133). Both Appellant and Appellee requested attorney's fees. (C.R. at 46, 138). The Office of the Attorney General on behalf of the State of Texas filed a general denial. (C.R. at 48). Course ofproceedings. After a trial to the court, the court found that appellee failed to timely make child support payments in the amount of $22,965.00 and that appellee failed to timely make medical support in the amount of $939.39, but then granted offsets to appellee in the amount of $19,816.83. (C.R. at 185-187; App. Tab 1). The Court also denied both requests for attorney's fees. Appellant filed a motion to modify correct or reform the judgment and a motion for new trial, which was overruled. (Motion for new trial, C.R. at 190; motion to modify, correct or reform not included in clerk's record, supplemental request filed and pending). The court subsequently heard appellee's Motion for Judgment Nunc Pro Tune, which asserted that the final order originally signed by the court was lost by the clerk's office and that the court should back-date the final order to the date the lost order was signed. (C.R. at 205). The trial court denied the Motion for Judgment Nunc Pro Tune but has not yet signed an order. 8 - BRIEF OF APPELLANT BROOKE BRUCE Trial court disposition. The trial court judicially renderedjudgment on March 1, 2016 and signed the final judgment on June 20, 2016. (C.R. at 185; App. Tab 1). STATEMENT ON ORAL ARGUMENT Appellant does not request oral argument. ISSUES PRESENTED FOR REVIEW Issue 1: Did the trial court abuse its discretion by awarding Appellee Carter Bruce a credit to his confirmed child support arrearage for three payments that do not constitute allowable offsets permitted by the Texas Family Code or other law? Issue 2: Did the trial court abuse its discretion by awarding Appellee Carter Bruce a credit to his confirmed child support arrearage when there is no more than a scintilla of evidence proving he is.entitled to an offset? Issue 3: Did the trial err by denying Appellant Brooke Bruce's request for attorney's fees in a Motion for Enforcement of Child Support? STATEMENT OF FACTS A. Appellee Owed a Duty to Pay Monthly Periodic Child Support for the Support of the Child Appellant, Brooke Bruce, and Appellee, Carter Bruce, are the parents of one child, ., now age 20. (C.R. at 5). Appellant and appellee divorced on October 4, 2007, and their Decree of Divorce ordered appellee to pay monthly 9 - BRJEF OF APPELLANT BROOKE BRUCE periodic child support in the amount of$1,500.00 beginning April 1, 2007, and then an increased amount ($1,750.00) beginning on April 1, 2008. (C.R. at 22). The Decree of Divorce required appellee to pay child support until either their son reached the age of 18 or until he graduated from high school, whichever was later. (C.R. at 22). Appellant was assigned the exclusive right to receive child support. (C.R. at 22). The Decree of Divorce required that child support payments be made through the state disbursement unit. (C.R. at 24). Appellee admits to being aware that the Decree of Divorce ordered him to make child support payments through the state disbursement unit child support registry. (2 R.R. at 65). At the conclusion of the trial on the merits, the court found that appellee failed to timely make periodic child support payments totaling $22,965.00 and that he failed to timely make payments for unreimbursed medical expenses in the amount of$939.49. (C.R. at 185-187; App. Tab 1). This amounts to a total arrearage of$23,094.49. (C.R. at 186). The court then allowed the following offsets totaling $19,816.83: 1. 11/01/2007 $3,000 Check to Brooke Bruce 2. 7/19/2009 $4,000 Check to Brooke Bruce 3. 8/25/2009 $10,000 Check to Brooke Bruce 4. 10/06/2009 $1,000 Check to Brooke Bruce 5. 12/16/2009 $1,816.83 Check to Nelda Wells Spears for Property Taxes 10 - BRIEF OF APPELLANT BROOKE BRUCE (C.R. at 186-187). This resulted in the court rendering judgment on the child support arrearages in favor of appellant in the amount of $4,087.22. (C.R. at 187; App. Tab 1). Appellant does not dispute that the $3,000 payment made on November 1, 2007 and the $4,000 payment made on July 19, 2009 are for child support. (2 R.R. at 96-98). B. Appellee Carter Bruce Began a Pattern of Inconsistently Paying Support Despite Having the Financial Ability to Pay Support Beginning soon after their divorce, appellee began a pattern of not making consistent and timely child support payments. (P. Ex. 2 at 3). Within months of the divorce, appellant had to file a Motion for Contempt to enforce her child support obligation. (P. Ex. 3). And, as early as 2009, appellant sought the services of the office of the attorney general to assist with enforcing her right to receive child support. (2 R.R. at 106). There were periods in 2008 and 2009 when appellant went months at a time without making a child support payment. (P. Ex. 2 at 3). Appellant flat-out stopped making child support payments after January 1, 2015 (with the exception of one small $13 7 .22 payment), despite the fact that their son was still in high school. (P. Ex. 1 at 3; 2 R.R. at 93). Appellee had ample resources available to him to make child support payments as ordered. He admits that in 2008 he sold a ranch for $1.5 million and spent as much as $250,000 on the remodel of his home located at 6013 Marquesa. (2 R.R. at 41-46; 66; P. Ex. 14). 11 - BRIEF OF APPELLANT BROOKE BRUCE Appellant made efforts to collect child support from appellee directly; appellee categorizes his ex-wife's efforts to collect child support from him directly as "harassment." (2 R.R. at 32-35, 36; P. Exs. 19-20). After months of not receiving child support in 2015, appellant Brooke Bruce asked the attorney general for assistance in enforcing the child support order. (2 R.R. at 106). In 2015, appellee Carter Bruce received conflicting information from the office of the attorney general about his child support arrearage. (P. Ex. 7). Their records indicated alternatively that he owed as much as $187,251.96 in child support or as little as $1,981.37 plus interest. (P. Ex. 7). After receiving this conflicting information, appellee filed his motion to recover overpaid child support. (C.R. at 43, 144). C. The Record Reflects Contradictory Evidence Regarding the $10,000, $1,000, and $1,816.23 Offset Claims Appellee believes that he was not late in paying child support until at least thirty days after child support was due and sometimes did not timely pay child support because he was out of town. (2 R.R. at 67). He also states that he "did not remember" why he skipped certain payments. (2 R.R. at 72-73). Appellant's stated reason for stopping payments in 2015 was that he had overpaid child support and coul.d stop payments earlier than required by the court's order. (2 R.R. at 87- 89). This turned out to be inaccurate based on the court's finding of an arrearage. (C.R. at 187; App. Tab 1). 12 - BRIEF OF APPELLANT BROOKE BRUCE In an effort to change the attorney general's payment records, appellee sent correspondence to the attorney general's office disputing their records. (P. Ex. 7). On March 4, 2015, he also signed a Non-Custodial Parent's Affidavit of Direct Payments stating that he paid $27,635.00 in child support payments directly to appellant. (P. Ex. 8; App. Tab 3). The Affidavit of Direct Payments includes two payments in 2006, one payment in 2007, and nine payments in 2009. (P. Ex. 8; App. Tab 3). By the time the parties got to trial, the number of direct payments alleged by appellee increased to $35,000.00 (C.R. at 155). Appellee maintained copies of checks that appellant Brooke Bruce agrees were for child support, and these checks have notations that they were child support. (P. Ex. 8 at 3, 5; App. Tab 3). However, the copies of checks offered by appellee in support of the $10,000 payment on August 25, 2009 and $1,000 payment on October 6, 2009 do not indicate they were for child support. (P. Ex. 8 at 7, 8; App. Tab 3). And, the last payment in dispute is a check written to a third party-Nelda Wells Spears-in the amount of$1,816.83. (P. Ex. 8 at 10; App. Tab 3). The check indicates this payment is for "6002 Bullard" and not child support. (P. Ex. 8 at 10; App. Tab 3). When asked by his own lawyer what the $1,000 payment made on October 6, 2009 check was for he said, "I don't know." (2 R.R. at 39). When asked later how he determined that the $1,000 payment of was child support, he said it was an 13 - BRIEF OF APPELLANT BROOKE BRUCE "even number" and must have been for child support. (2 R.R. at 39-41). Appellee offers conflicting stories about the $10,000 payment made on August 25, 2009: he says that he made the payment of $10,000 on August 25, 2009 to get ahead on child support but admits that he made a payment through the State Disbursement Unit about a week and a half later because he was "confused." (2 R.R. at 36, 69- 70; P. Exs. 2, 8). Lastly, appellee says that the payment to Nelda Wells Spears for appellant's property taxes was initially a "loan" but then later decided it was child support once the loan was not paid back. (2 R.R. at 57-58). The payment for property taxes to Nelda Wells Spears is also not included in his Affidavit of Direct Payments (P. Ex. 8; App. Tab 3). Copies of checks offered at trial by appellee Carter Bruce show that he did make other support payments by paying through the state disbursement unit. (P. Ex. 13 at 11, 15; App Tab 4). These payments indicate the cause number, the case I.D. number, are made payable to the "TX Child Support Unit" or "TXSCU," and indicate that the payments are for either "Oct. and November" payment or "Dec. payment." (P. Ex. 13 at 11, 15; App Tab 4). The documents that appellee brought forth to support other payments in his Affidavit of Direct Payments did not show payments to Brooke Bruce. (P. Ex. 8; App. Tab 3). The documentary support for the payment allegedly made on May 21, 2009 is a withdrawal slip that does not bear Brooke Bruce's name. (P. Ex. 8, 14 - BRIEF OF APPELLANT BROOKE BRUCE p.4). The documentary support for the payment allegedly made on December 23, 2009 is also a withdrawal slip that does not bear Brooke Bruce's name. (P. Ex. 8, p.4; App. Tab 3). Other documents offered by Carter Bruce show a pattern of withdrawing cash, yet he does not claim these payments are child support. (P. Ex. 13 at 3, 6; App. Tab 4). D. Personal and Business Financial Transactions Between the Parties After Their Divorce Were Not Child Support Payments Sometime after the divorce, appellee helped appellant with a remodel of her home, including installing a hot tub and other work. (2 R.R. at 41-46). Appellant and appellee both agree that there were financial transactions between them arising out of this business relationship. (2 R.R. at 41-46). He was also renovating his own residence. (2 R.R. at 41-46). The parties disagree about the status of their personal relationship; appellant says that the parties briefly rekindled a romantic relationship but appellee maintains that they were just getting along better for their son. (2 R.R. at 26-27, 103-104). Brooke Bruce also says that around the time he wrote her the $10,000 check, she spent money on joint expenses including trips together, obtaining passports, and remodeling homes. (2 R.R. at 103-104). Appellant says that appellee had trouble writing checks due to a suspended license, and she wrote some checks for him because he lacked a driver's license. (2 R.R. at 103-104). It is her belief that the $10,000 payment was a reimbursement for these expenses she paid. (2 R.R. at 103-104). At around the time appellee wrote the 15 - BRIEF OF APPELLANT BROOKE BRUCE check for $1,000 in October 2009, the parties went to a festival together, went dirt bike riding, bought food and drinks, and stayed at a hotel. (2 R.R. at 106-107). Brooke Bruce recalls cashing the check at a bank for payment of these expenses because she had a valid driver's license. (2 R.R. at 106-107). Appellee agreed that at least one payment he asserted as child support in his Affidavit of Direct Payments was in fact a reimbursement for an expense for his house. (2 R.R. at 39-41). E. Attorney's Fees Incurred by Brooke Bruce In pursuit of her motion for enforcement of child support, appellant Brooke Bruce incurred reasonable and necessary attorney's fees in the amount of $19,057.30. (R. Ex. 6; App. Tab 5). Appellant's attorney, Kathleen Coble, provided testimony at trial in support of the request for attorney's fees and provided invoices in support of all services rendered, including services of both the attorney and paralegal who worked on the matter. (R. Ex. 6; 3 R.R. at 48-54). The invoices include detailed descriptions of the work performed, Ms. Coble's hourly rate, and the dates on which services were rendered. (R. Ex. 6; App. Tab 5). Ms. Coble offered testimony regarding her qualifications as an attorney who is board certified in family law by the Texas Board of Legal Specialization. (3 R.R. at 49). The attorney for appellee stipulated on the record to Ms. Coble's qualifications. (3 R.R. at 49). Ms. Coble offered testimony regarding court appearances in the 16 - BRIEF OF APPELLANT BROOKE BRUCE matter, excessive amounts of discovery propounded on her client by appellee Carter Bruce, and responding to appellee requests to obtain an offset of child support. (3 R.R. at 50-51 ). At the time of trial, appellant had only paid $1,500, which she borrowed to pay for attorney's fees. (3 R.R. at 52). Appellee Carter Bruce objected to evidence pertaining to his ability to pay attorney's fees, which was sustained by the court. (2 R.R. at 76). SUMMARY OF THE ARGUMENT Issue 1. In a suit to enforce child support, section 157 .263 of the Texas Family Code requires a trial court to confirm child support arrearages without reducing or modifying the arrearage except as provided by law. Tex. Fam. Code Ann. § 157.263 (West 2016). The Family Code has two very narrowly defined exceptions allowing offsets, neither of which is present in this case. Absent proof from the child support obligor that he has discharged a child support obligation as required by the child support order, the trial court has a mandatory duty to confirm the arrearages. The trial court incorrectly applied the law by allowing offsets not permitted by the family code or case law. Issue 2. Appellee Carter Bruce offered no more than a scintilla of evidence in support of his child support offset claims. The evidence offered to prove that direct payments to Appellant were indeed in the nature of child support is contradictory, conclusory, and not clear, direct, and free from inconsistencies. 17 - BRIEF OF APPELLANT BROOKE BRUCE Thus, it amounts to no evidence. Thus, the trial court abused its discretion because there was not sufficient information pertaining to a vital fact that is determinative to this case. Issue 3. In a suit for enforcement of child support, there is a mandatory requirement that the court shall order the Respondent to pay attorney's fees. Tex. Fam. Code Ann.§ 157.167 (West 2016). The only exception is upon a finding of good cause, and the trial court must state its reasons for finding good cause.Id. The court
in this case found that appellee failed to discharge his child support and medical support obligations by more than $23,000, but then denied appellant's request for attorney's fees without stating good cause. Thus, the court erred in denying the attorney fee request. ARGUMENT I. A DECISION REGARDING THE CONFIRMATION OF CHILD SUPPORT ARREARAGE IS REVIEWED FOR AN ABUSE OF DISCRETION A trial court's order concerning a child support arrearage is reviewed under an abuse-of-discretion standard. Beck v. Walker,154 S.W.3d 895
, 901 (Tex. App.- Dallas 2005, no pet.). Under that standard, legal and factual sufficiency are not independent grounds for reversal, but are instead relevant factors in assessing whether the trial court abused its discretion. Lee v. Kaufman, 03-10-00148-CV,2011 WL 3796175
, at *1 (Tex. App.-Austin Aug. 26, 2011, no pet.) (citing Doyle 18 - BRIEF OF APPELLANT BROOKE BRUCE v. Doyle,955 S.W.2d 478
,479 (Tex. App.-Austin 1997, no pet.); Mai v. Mai,853 S.W.2d 615
, 618 (Tex. App.-Houston [1st Dist.] 1993, no writ)). To decide whether an abuse of discretion has occurred, the appellate court must determine: ( 1) whether the trial court had sufficient information on which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. Zeifman v. Michels,212 S.W.3d 582
, 588 (Tex. App.-Austin 2006, pet. denied) (internal citations omitted). A trial court's failure to analyze or apply the law correctly constitutes an abuse of discretion. Attorney Gen. of Texas v. Stevens,84 S.W.3d 720
, 722 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (citing Walker v. Packer,827 S.W.2d 833
, 840 (Tex.1992)). When a trial court does not issue any findings of fact or conclusions of law, all facts necessary to support the trial court's ruling and supported by the evidence are implied in favor of the trial court's decision. Zeifman,212 S.W. 3d
. at 588 (citing BMC Software Belgium, NV. v. Marchand,83 S.W.3d 789
, 794 (Tex.2002)). However, when the appellate record includes both the reporter's record and the clerk's record, the implied findings are not conclusive and may be challenged for legal and factual sufficiency.Zeifman, 212 S.W.3d at 588
(citing Vickery v. Commission for Lawyer Discipline,5 S.W.3d 241
, 251 (Tex. App.- Houston [14th Dist.] 1999, pet. denied)). 19 - BRIEF OF APPELLANT BROOKE BRUCE A legal sufficiency challenge may be sustained when ( 1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.Zeifman, 212 S.W.3d at 588
(citing Uniroyal Goodrich Tire Co. v. Martinez,977 S.W.2d 328
, 334 (Tex.1998)). In determining whether there is legally sufficient evidence to support the finding under review, the court considers evidence favorable to the finding if a reasonable factfinder could, and disregards evidence contrary to the finding unless a reasonable factfinder could not. City ofKeller v. Wilson,168 S.W.3d 802
, 828 (Tex.2005). As to the issue of a child support arrearage offset, the child support obligor has the burden of proof. Curtis v. Curtis,11 S.W.3d 466
, 472 (Tex. App.-Tyler 2000, no pet.). Thus, appellant must only establish that there is no evidence to support the trial court's finding of an offset or that there is some other rule of law that bars the court from considering the evidence offered to prove a vital fact. Id.;Zeifman, 212 S.W.3d at 588
. Issue 1 II. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING AN OFFSET TO CHILD SUPPORT ARREARAGE THAT IS NOT AUTHORIZED BY STATUTE OR OTHER LAW 20 - BRIEF OF APPELLANT BROOKE BRUCE A. Unpaid Child Support Is an Unfulfilled Duty to a Child Appellee Carter Bruce failed to meet a duty to support his child. The payment of child support reflects a parent's duty to his child, which furthers the child's welfare and best interests. Office ofAtty. Gen. of Texas v. Scholer,403 S.W.3d 859
, 866-67 (Tex. 2013). "When child support payments are not made, the result is a loss of funds available for the child's food, clothing, education, and home environment." Williams v. Patton,821 S.W.2d 141
, 145 (Tex. 1991). Texas has a policy of protecting the interests of children, and this policy underlies the law on child support enforcement.Id. Characterizing arrearages
as nothing more than a "debt" owed to the custodial parent oversimplifies the purpose of child support.Id. Past due
child support is really more of an unfulfilled duty to the child than a "debt" to the custodial parent.Id. (citing Adair
v. Martin,595 S.W.2d 513
(Tex.1980). B. Once the Court Found a Child Support Arrearage, the Trial Court Has an Affirmative Duty to Render Judgment on the Arrearages Once the amount of child support arrearages is established, the court has an affirmative duty to confirm the arrearages and reduce them to judgment. Tex. Fam. Code Ann. § 157.263(a); In re S.R.O.,143 S.W.3d 237
,248 (Tex. App.- Waco 2004, no pet.) (internal citations omitted) Some courts have said that the trial judge acts "as a mere scrivener" in this situation. In reS.R.O., 143 S.W.3d at 248
. The Family Code states that if a motion for enforcement of child support requests a 21 - BRIEF OF APPELLANT BROOKE BRUCE money judgment for arrearages, the court shall confirm the amount of arrearages and render one cumulative money judgment. Tex. Fam. Code Ann. § 157.263 (a) (West 2016). The Family Code also says that in rendering a money judgment under this section, the court may not reduce or modify the amount of child support arrearages but, in confirming the amount of arrearages, may allow a counterclaim or offset as provided by this title. Tex. Fam. Code Ann. § 157 .263 (West 2016) (emphasis added). Family Code section 157 .263 itself does not contain a definition of what may constitute an offset.Stevens, 84 S.W.3d at 723
. In a proceeding to confirm arrearages, the child support calculations must be based on the payment evidence presented, not the trial court's assessment of what is fair or reasonable. Chenault v. Banks,296 S.W.3d 186
, 190 (Tex. App.-Houston [14th Dist.] 2009, no pet.) By its plain language, section 157 .263 (b-1) only permits offsets as provided by "this title," meaning Title 5 of the Family Code. Title 5 is entitled "the Parent- Child Relationship and Suit Affecting the Parent-Child Relationship" and includes all matters relating to children and their parents, including support, conservatorship, and visitation. See generally Title 5, Tex. Fam. Code. Ann. (West 2016). Prior to the Ochsner decision, discussed infra, there was a general consensus among the courts that there are two narrowly allowed offsets to child support: a 22 - BRIEF OF APPELLANT BROOKE BRUCE credit for having possession of the child and a lump-sum payment arising from the obligor's disability. Tex. Fam. Code Ann.§§ 157.008-.009;Beck, 154 S.W.3d at 905-06
; see also In re J.S.H, No. 06-09-00101-CV,2010 WL 1568463
, at *3 (Tex. App.-Texarkana Apr.21, 2010, no pet.) (mem. op.), In re A.J.R., 09-09- 00382-CV,2010 WL 4262007
, at *5 (Tex. App.-Beaumont Oct. 28, 2010, no
pet.) {child support obligor providing actual support to a child may request or
offset under §157.008 for that support), Beck, 154 S.W.3d at 906 (denying offset in part because affirmative defense not established under § 157. 008. ), Office of Attorney Gen. of State v. McBee, 01-08-00433-CV,2009 WL 2961245
, at *5 (Tex. App.-Houston [1st Dist.] Sept. 17, 2009, no pet.) (finding an abuse of discretion where trial court allowed offset due to incarceration, which is not permitted by statute), In .re A.B.C., 04-99-00113-CV,2001 WL 191557
, at *3 (Tex. App.-San Antonio Jan. 31, 2001, pet. denied) (stating offset available if affirmative defense established under §157.008),Stevens, 84 S.W.3d at 725
(holding that offset not allowed by statute), and In re J.S.H.,2010 WL 1568463
, at *5 (same). The Supreme Court of Texas has called into question exactly how these offsets should be applied. The court states that the offsets allowed by 157 .008- .009 of the Family Code "do not alone exhaust a trial court's ability to consider evidence of an obligor's discharge of his child-support obligation in an enforcement proceeding." Ochsner v. Ochsner, 14-0638,2016 WL 3537255
at *2 23 - BRIEF OF APPELLANT BROOKE BRUCE (Tex. June 24, 2016) (not released for publication). However, this does not excuse an obligor from showing evidence of proper payment or complying with the court's order. In a concurring opinion, Justice Guzman writes, "[i]n determining the existence of an arrearage and calculation of interest, the issue is whether the obligor discharged his obligation to pay the amount of child support ordered, which requires a comparison of the 'amount owed as provided in the order' with 'the amount paid.' Proof of actual payment is germane to confirmation of an arrearage... [E]ven though the court shall order the payment of child support to the state disbursement unit ... a payment is not delinquent even 'if payments are not made through a registry' so long as the payment is timely received by 'the obligee or entity specified in the order."' Ochsner,2016 WL 3537255
, at *10-11 (Guzman, J., concurring). Ochsner carves out a very narrow exception for the discharge of a child support obligation based on the facts in that case. In that case, a child-support order required father to make certain payments to his daughter's school, and when she switched schools, to make payments through a registry.Id. at *
1. Instead, he paid the new school directly, with payments totaling more than $20,000 beyond what the original order contemplated.Id. His ex-wife
then sued to recover the balance that was not paid through the registry nearly ten years later.Id. The court
noted that the payments were regular, as opposed to irregular, and that obligor discharged an obligation directly incurred by the obligee for benefit of the child.Id. at *
7. 24 - BRIEF OF APPELLANT BROOKE BRUCE The court held that it was appropriate for the trial court to conclude that no arrearages should be ordered because under all the circumstances the obligor made thousands of dollars in direct support payments in excess of the amount the order required, and in doing so satisfied the obligee's obligation.Id. at *
4. However, an obligor should not flout the system, and the statute requires the trial court to confirm the amount of arrearages, based on the amount the child-support order required the obligor to pay, and in light of various payments the court finds that the obligor made.Id. The court
further states that "[their] decision ... should be confined to the facts presented. It should not be read to hold that tuition payments always qualify as child support. Further, it should not be read to encourage spouses to make direct payments and thereby bypass the registry or other payment mechanisms set forth in the divorce decree."Id. at *
8. And, the obligor may not rely on the other parent's actions or agreements to discharge his child support obligation.Scholer, 403 S.W.3d at 866-67
;Williams, 821 S.W.2d at 145
. Only if an obligor proves monthly payments that discharge his child support obligation, may the court decline to confirm an arrearage. In re C.S.,2014 WL 972310
, at *2 (Tex. App.-Eastland Mar. 6, 2014, no pet). This is distinguishable from a case where an obligor has failed to make child support payments as ordered · and the court is required to confirm arrearages by Section 157.263 of the Texas 25 - BRIEF OF APPELLANT BROOKE BRUCE Family Code. When an obligor has discharged a monthly child support obligation, albeit not through the registry as required, an "offset" analysis is not necessarily implicated because there is not necessarily an arrearage.Id. At *2.
C. Discretionary Payments to Third Parties Are Not Considered Child Support The trial court plays a very important role in child support proceedings to ensure the protection of the child's best interests, and private agreements to modify child support obligations bypass the protection of the court and are thus against public policy and unenforceable.Chenault, 296 S.W.3d at 190-91
(citingWilliams, 821 S.W.2d at 143-44
) (other citations omitted). In Chenault, the executor of the estate of child support obligor argued that payments directly to a child's military academy should be an offset to his child supportobligation. 296 S.W.3d at 188
. The court of appeals reversed the judgment of the trial court finding an abuse of discretion because the payments were not previously approved the court.Id. at 190-191.
Although the court of appeals could not determine whether the trial court applied offsets for "personal loans and money for other items such as Christmas gifts, an amusement park season pass, pictures, insurance, a car, and a class ring," the court stated that it would be abuse of discretion to give credit for these non- child support items that are not in the Family Code as a basis for decreasing child support arrearages.Chenault, 296 S.W.3d at 192
(citing Medrano v. Medrano, 810 26 - BRIEF OF APPELLANT BROOKE BRUCE S.W.2d 426,427 (Tex. App.-San Antonio 1991, no writ) (noting that the Family Code does not authorize credit against child support arrearages for a loan or purchase of a car)). D. The Trial Court Abused Its Discretion Because It Incorrectly Applied the Law Regarding Allowable Child Support Offsets The Family Code allows the remedy of enforcement of a child support obligation that is not made in compliance with an order. Tex. Fam. Code Ann. § 157.002 (b) (West 2016) (allowing obligee to file motion for enforcement by contempt if she pleads portion of the order allegedly violated, the date of alleged of contempt, the amount due and the amount paid, if any). Chapter 157 recognizes that a court order for child support is enforceable by its terms and allows a contempt finding provided that the court references the portion of the order violated and states the date of each occasion when the respondent's failure to comply with the order was found to constitute contempt. Tex. Fam. Code Ann. § 157.166(b) (West 2016). This is all to say that there are severe penalties, including contempt, for not discharging a child support obligation in the manner designated by the court order. The Family Code does allow a child support obligor to offer evidence to contradict the records kept by a child support registry. Tex. Fam. Code Ann.§ 157.162 (c-1) (West 2016). However, the Code does not permit the obligor to wait thirty days (or more) past the due-date for child support to make his payments for 27 - BRIEF OF APPELLANT BROOKE BRUCE the support of his child. In limited circumstances, the records of the child support registry may not be dispositive in showing that monthly child support payments are made if an obligor has evidence that he made every payment monthly payment required of him. In re C.S.,2014 WL 972310
, at *3; see also In re J.C.T, 05-12- 01290-CV,2014 WL 3778909
, at *4 (Tex. App.-Dallas July 31, 2014, pet. denied) (testimony that all child support payments were made twenty-two years before obligee tried to collect support was legally sufficient even though support record did not show payments) and Higgins v. Higgins, 05-98-02014-CV,2000 WL 1264636
, at *3 (Tex. App.-Dallas Sept. 7, 2000, no pet.) (holding that obligor proved discharge of child support obligation where checks showing direct payments included 'child support' notation and were accepted by obligee). The trial court in this case found that appellee Carter Bruce failed to timely discharge both child support and medical support obligations, confirmed an arrearage, and then found that he was entitled to offsets. The court incorrectly applied the law permitting offsets to a child support obligation. i. The $10,000 and $1,000 Offsets Are Not Statutorily Permissible Offsets or Offsets Contemplated by Ochsner The trial court's decision to offset the child support arrearage for the $10,000 payment on August 25, 2009 and the $1,000 payment on October 6, 2009 constitutes an abuse of discretion. Ochsner and the cases that permit a court to consider evidence of actual payments made by an obligor in discharge of a child 28 - BRIEF OF APPELLANT BROOKE BRUCE support obligation have all been clear: payments must be regular, an obligor must show compliance with the letter or spirit of the underlying court order, and the obligor must pay the actual amounts owed under the order. No such thing happened here. In this case, the court found that, in the aggregate, appellee Carter Bruce failed to timely discharge his child support obligation by more than $23,000. Under the plain language of statutory scheme set forth in Family Code § 157 .263, this confirmation of arrearages shifts the burden to Carter Bruce show some offset "under [Title 5]" of the Family Code. The statutory offsets permitted by sections 157.008-.009 of the Texas Family Code are not applicable to this case. Appellee Carter Bruce did not plead an affirmative defense to child support enforcement that would entitle him to an offset under section 157.008. Also, neither party raised the issue of funds being paid as a result of a lump-sum disability payment paid on behalf of appellee. Once an arrearage is confirmed, the court is without discretion to modify or forgive the payments, even in the interest of equity or fairness. Once the child support arrearage was confirmed, the court had no discretion to reduce the arrearage absent some statutorily permitted offset. Should this court find more than a scintilla of evidence that the $10,000 payment and the $1,000 payment at issue were indeed "child support" payments, these payments were sporadic and unpredictable. In his own words, appellee did 29 - BRIEF OF APPELLANT BROOKE BRUCE not believe that his child support payments were late until he was behind by more than 30 days. This leaves only the narrow exceptions set forth in case law that permit an obligor to prove he has discharged his child support obligation in a manner that complies with the child support order. While the Ochsner case has undoubtedly transformed the landscape on what may be considered "child support," the holding should be confined to the facts of that particular case. To extend this holding beyond those facts may needlessly encourage litigation between spouses, even though there will invariably be an order with clear and concise terms regarding support. Any holding that allows the parties to a child support order to subjectively elect how to discharge a child support obligation will potentially create litigation, which ultimately affects the children subject to these orders. Allowing the party to discharge an obligation by agreement or by means other than allowed by the family code has been expressly rejected by the Supreme Court of Texas in the Williams and Scholercases, supra
. The Ochsner case does not say that a child support payment made in an untimely manner may be a child support offset. Extending Ochsner to the facts of this case may also undermine the power of trial courts to enforce their orders regarding support. Concluding that a child support obligor can discharge a child support obligation by not timely paying child support will potentially create a "substantial compliance" defense to a motion for 30 - BRIEF OF APPELLANT BROOKE BRUCE enforcement of child support. The law should encourage obligors to pay child support on time and not encourage creative ways for them to avoid legal obligations. This is keeping in line with the notion that child support obligations are a debt to the children and are an important part of the public policy of the State of Texas. ii. The $1,816.83 to the County Tax Assessor Is Not Permissible Offset Granting an offset for the payment made to the county tax assessor, Nelda Wells Spears, was an abuse of discretion because the payment was not an offset permitted by law. See Argument, IX C,i, supra
. Additionally, this payment was made to a third party and not to discharge an obligation incurred by the obligee for the child, as was discussed in Ochsner. Even in circumstances where the obligor pays for child-related expenses such as military school, movies, or other items for the child, these are non-child support related items and should not serve as an offset. See Chenault and Medrano, supra. Issue 2 III. An Obligor's Conclusory Statements About the Discharge of a Child Support Obligation That Are Contradicted by Other Evidence Are No More Than a Scintilla of Evidence Entitling Him to an Offset Carter Bruce is clearly an interested witness, and he offered conclusory and conflicting evidence supporting his offset claims. For example, his testimony surrounding the $1,000 offset check was initially that he "did not know" about the 31 - BRIEF OF APPELLANT BROOKE BRUCE purpose of the check. (2. R.R. 39). Proof of actual payment is germane to determining whether child support has been timely paid as ordered. Ochsner,2016 WL 3537255
, at *10-11 (Guzman, J., concurring). The general rule is that evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the trier of fact. Berner v. Ferris,538 S.W.2d 658
, 659 (Tex. Civ. App.-Amarillo 1976, no writ) (citing Gevinson v. Manhattan Construction Company of Oklahoma,449 S.W.2d 458
,467 (Tex.1969) ). Conclusive effect may be given to the testimony of an interested witness only if the testimony is clear, direct and positive and there are no circumstances tending to discredit or impeach the same.Id. When testimony
comes from an interested party and the evidence cannot be readily contradicted if untrue, an issue relating to the credibility of the witness is presented.Berner, 538 S.W.2d at 659
(citing James T Taylor and Son, Inc. v. Arlington Independent School District,160 Tex. 617
,335 S.W.2d 371
, 376 (1960)). A conclusory statement without supporting facts is not readily controvertible. Beesley v. Hydrocarbon Separation, Inc.,358 S.W.3d 415
, 424-25 (Tex. App.-Dallas 2012, no pet.). Such a conclusory statement without supporting facts is insufficient to support a summary judgment.Id. (citing Trico
Techs. Corp. v. Montiel,949 S.W.2d 308
,310 (Tex. 1997)); see also Pioneer Land & Cattle Co. v. Collier, 07-12-00320-CV,2013 WL 2150814
, at *3 (Tex. App.- 32 - BRIEF OF APPELLANT BROOKE BRUCE Amarillo May 15, 2013, no pet.); Smith v. Patrick WY. Tam Trust,296 S.W.3d 545
, 547 (Tex.2009); Ragsdale v. Progressive Voters League,801 S.W.2d 880
, 881 (Tex.1990) (per curiam). This court previously held that in assessing whether a court abuses its discretion, the court can consider legal and factual sufficiency arguments. See Zeifman. In this case, even when looking at the evidence most favorably to appellee Carter Bruce, the court had insufficient information to exercise its discretion. Appellee's evidence supporting his offset claims is no more than conclusory statements that are supported by little to no factual detail. When asked what the $10,000 payment was, he said "It is for child support." (2 R.R. 36). He offered a copy of check in support of the $10,000 payment but offered no testimony explaining the circumstances under which he gave the check to appellant, whether he even gave it to her, whether the check cleared his bank account, or why he made the payment directly rather than through the state disbursement unit. (P. Ex. 8). The check does not include a notation that it was for child support. The evidence at trial shows that appellee did know how to make payments through the disbursement unit. Two checks he offered at trial showed this by including the months the payments represented and by sending them to the child support disbursement unit with the court cause number. (P. Ex. 13 at 11, 15). When asked on cross-examination to explain why the payment was made directly 33 - BRIEF OF APPELLANT BROOKE BRUCE he said alternatively that he was either "confused" or that he was trying to get ahead on child support due to appellant's "harassment." (2 R.R. 36). Appellee's explanation for why the $1,000 payment was child support was only that it was an "even number." (2 R.R. 39). Again, there is no explanation why the payment was made directly, no evidence of the circumstances surrounding the payment, and no evidence of conversations with appellant about the payment. The payments were also not made on a date when child support was due. Appellant Brooke Bruce also offered contradictory evidence to the evidence offered by appellee. Concerning the $1,000, she offered specific evidence about receiving the check and cashing the check at a time when the parties went to a festival and payed for other expenses. (2 R.R. at 106-107). She also offered testimony that the parties were traveling together, getting passports, and renovating their homes. In the face of this contradictory evidence, appellee's conclusory statements as these payments being child support constitute no evidence. Lastly, appellant himself offered contradictory evidence concerning the payment towards property taxes. He said alternatively that it was a "loan" but then in his mind, it was also child support. (2 R.R. at 57-58). Appellee offered evidence that it was not child support, stating that it was a time when the parties were considering reconciling and that is why he paid the property taxes. 34 - BRIEF OF APPELLANT BROOKE BRUCE Issue 3: Did the trial err by denying Appellant Brooke Bruce's request for attorney's fees in a Motion for Enforcement of Child Support? IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST FOR ATTORNEY'S FEES DESPITE MANDATORY DUTY IMPOSED BY §157.167 OF THE FAMILY CODE IN A CHILD SUPPORT CASE A. A Decision Regarding the Award of Attorney's Fees in a Child Support Enforcement Action is Reviewed De Novo The Texas Family Code requires a court to review the award of attorney's fees that are in in the nature of child support as a legal conclusion, and trial court's order is reviewed de novo. Finley v. May,154 S.W.3d 196
, 198 (Tex. App.- Austin 2004, no pet.). While a motion for enforcement of child support is normally reviewed for an abuse of discretion, the award of attorney's fees in this instance involves a matter of statutory construction, which is reviewed de novo. McFadden v. Deed/er, 03-13-00486-CV,2014 WL 4364540
; at *1 (Tex. App.- Austin Aug. 27, 2014, no pet.) (citing Railroad Comm'n v. Texas Citizens for a Safe Future & Clean Water,336 S.W.3d 619
, 624 (Tex.2011); Walker v. Packer,827 S.W.2d 833
, 840 (Tex.1992) (orig. proceeding) (observing that court has no "discretion" to misinterpret or misapply law)). The express statutory language is the primary concern. McFadden,2014 WL 4364540
, at *1. (citing Galbraith Eng'g Consultants, Inc. v. Pochucha,290 S.W.3d 863
, 867 (Tex.2009)); see also Johnson v. Johnson, 03-02-00427-CVC,2005 WL 3440773
, at *5 (Tex. App.- Austin Dec. 16, 2005, no pet.). 35 - BRIEF OF APPELLANT BROOKE BRUCE B. It Is Error to Deny an Award Attorney's Fees in a Suit to Enforce Child Support The Texas Family Code states that "if the court finds that the respondent has failed to make child support payments, the court shall order the respondent to pay the movant's reasonable attorney's fees and all court costs in addition to the arrearages .... " Tex. Fam. Code Ann.§ 157.167 (a) (West 2016) (emphasis added). The court may not waive the award of attorney's fees except for good cause shown and "if the court states the reasons supporting that finding." Tex. Fam. Code Ann. § 157.167 (c) (West 2016). A finding that the respondent is not in contempt does not preclude the court from awarding the petitioner court costs and reasonable attorney's fees or ordering any other enforcement remedy, including rendering a money judgment. Tex. Fam. Code Ann.§ 157.162 (b) (West 2016). Medical support is an additional child support obligation that may be enforced by any means available to the enforcement of child support. McFadden,2014 WL 4364540
, at *2 (citing Tex. Fam. Code§ 154.183(a); In re A.L.S.,338 S.W.3d 59
, 67 (Tex. App.-Houston [14th Dist.] 2011, pet. denied). Absent an express finding of good cause, the award of attorney's fees under section 157 .167 is mandatory upon a finding of failure to make child support payments. Seeid. § 157.167(a);
Tucker v. Thomas,419 S.W.3d 292
, 300 (Tex.2013). The denial of a contempt motion does not constitute "good cause." Russell v. Russell,478 S.W.3d 36
, 42 (Tex. App.-Houston [14th Dist.] 2015, no 36 - BRIEF OF APPELLANT BROOKE BRUCE pet.). Advice of counsel regarding whether to pay support may also not constitute "good cause." Scruggs v. Linn,443 S.W.3d 373
, 381-82 (Tex. App.-Houston [14th Dist.] 2014, no pet.). Evidence to support a request for attorney's fees using the lodestar method should include the hours worked multiplied by the hourly rates for a total fee. Long v. Griffin,442 S.W.3d 253
,255 (Tex. 2014). Sufficient evidence includes, at a minimum, evidence "of the services performed, who performed them and at what hourly rate, when they were performed, and how much time the work required."Id. (internal citations
omitted).Id. The attorney
"should provide testimony of the hours spent on the case, the nature of preparation, complexity of the case, experience of the attorney, and the prevailing hourly rates. Ekstrom v. Teems, 14- 96-01180-CV,1998 WL 93744
, at *2 (Tex. App.-Houston [14th Dist.] Mar. 5, 1998, pet. denied) (citing Higgins v. Smith,722 S.W.2d 825