in the Interest of W.M.H., a Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00003-CV
IN THE INTEREST OF W.M.H., A
CHILD
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FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 97-10804-16
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MEMORANDUM OPINION 1
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Appellant, the father of W.M.H., appeals the trial court’s December 2, 2013
order denying his motion to clarify a 2005 agreed order regarding child support.
Father also attempts to appeal a September 18, 2013 associate judge’s order
denying his motion to cease child support withholding, which also imposed
sanctions upon him. We dismiss the appeal of the September 18, 2013 order
and affirm the December 2, 2013 order.
1
See Tex. R. App. P. 47.4.
Background
Father and Mother were divorced in 1998; they have two children. In a
2000 order modifying their divorce decree, Father was ordered to pay child
support for both children. In July 2005, Mother filed a further petition to modify,
alleging that she believed “the parties will enter into a written agreement
containing provisions for modification of the order providing for support of the
children.” [Emphasis added.] The trial court signed an order incorporating this
agreement on September 26, 2005. The provision for child support said, “The
parties have agreed that no child support is due by either party.”
In 2007, after W.M.H.’s older sister had turned 18 and graduated from high
school, the trial court rendered another order setting child support for W.M.H.,
payable from Father to Mother, who was W.M.H.’s primary conservator. At that
time, Father was in arrears as to child support that had become due before the
2005 order was rendered; however, neither Mother nor the Office of the Attorney
General (OAG) sought collection of the arrearage in 2007.
In April 2013, Father filed a motion to cease withholding of child support
effective upon W.M.H.’s graduation from high school in June 2013. Thereafter,
he filed a motion to alleviate child support arrears and withholding of income for
child support, adding the allegation that he did not owe any arrears for child
support accruing from May 2005 through June 2007. He also filed a motion to
clarify the September 2005 order regarding child support.
2
On September 18, 2013, the associate judge, sitting as a Title IV-D
master, rendered an order denying Father’s motion to cease withholding of
income. The associate judge also imposed Rule 13 sanctions against Father for
filing pleadings for which there is no appropriate remedy and for abusing the
judicial process. See Tex. R. Civ. P. 13. The associate judge awarded
attorney’s fees to Mother. Father attempted to appeal the associate judge’s
ruling to the presiding judge by filing a notice of appeal on September 27, 2013.
On October 21, 2013, Father filed a motion for new trial of the associate judge’s
order.
In November 2013, Father filed an amended motion to clarify the 2005
agreed order, claiming that the parties “intended [in that order] to forgive any past
due child support as well as any child support due to each other in the future.”
After a hearing, the presiding judge of the trial court denied the motion for
clarification and also confirmed an arrearage of $10,153.05; the presiding judge
also rendered a judicial withholding order for the arrearage. The presiding judge
further found that the September 18, 2013 associate judge’s order was not timely
appealed and that the motion for new trial was untimely. Thus, the presiding
judge found that the September 18 order was final. The presiding judge also
awarded attorney’s fees to Mother’s counsel.
Father timely appealed the trial court’s December 2, 2013 order to this
court.
3
Jurisdiction
Father contends that the presiding judge erred by determining that the
September 18, 2013 associate judge’s order was final and that Father’s
attempted de novo appeal of that order was untimely. Family Code section
201.1042(b) provides that an appeal to the district court from an associate
judge’s order in a Title IV-D capacity must be filed no later than three working
days after the order is rendered. Tex. Fam. Code Ann. § 201.1042(b) (West
2014). Father’s appeal to the district court was not filed until the seventh working
day after rendition of the order. Thus, by operation of law, the order became a
final order of the district court. Id. § 201.1041(a) (West 2014); see also Tex. R.
Civ. P. 329b(f). Because Father’s motion for new trial was not filed until more
than thirty days after the date of the order, the district’s court plenary power over
the order had expired. See Tex. R. Civ. P. 329b(a)–(b), (d).
Likewise, the late motion for new trial could not extend the time to appeal
the order to this court. See Tex. R. App. P. 26.1(a)(1). We find no other
document in the record that could be construed as a bona fide attempt to timely
appeal that order to this court. 2 See In re J.M., 396 S.W.3d 528, 530 (Tex.
2013). Accordingly, we do not have jurisdiction to review the September 18,
2
Although Father references section 201.016 in his brief, which provides
that the date of the referring court’s ratification of the associate judge’s order is
controlling for purposes of appeal to this court, that section does not apply here
because the associate judge’s order became final by operation of law without the
need for ratification by the presiding judge. Compare Tex. Fam. Code Ann.
§§ 201.015–.016, with § 201.1041(a).
4
2013 associate judge’s order, including the award of sanctions therein. See Tex.
R. App. P. 25.1(b); In re K.A.F., 160 S.W.3d 923, 927–28 (Tex.), cert. denied,
546 U.S. 961 (2005).
We overrule Father’s third through fifth, eighth, and eleventh issues. We
address only those issues involving the presiding judge’s December 2, 2013
order denying Father’s motion to clarify.
Motion to Clarify
Father’s Interpretation of 2005 Order
In his first issue, Father contends that the trial court erred by refusing to
define and clarify the child support language in the 2005 agreed order even after
finding that the language is vague and confusing. 3 Father contends that the
words “child support” in the phrase, “no child support is due by either party,”
includes “child support arrearages” as well as future child support, and that the
trial court should have clarified the language to define the terms “due,”
“arrearages,” and “child support,” as well as the clause as a whole.
Although the trial court found that the language in the 2005 order is vague
and confusing, it also denied Father’s requested relief to clarify the order to say
that Father had no obligation to pay child support that had accrued and was due
before entry of the 2005 order (i.e., child support accruing from April through
3
His ninth issue is related. In his ninth issue, Father argues that the trial
court erroneously “infer[red] the intent” of the judge who signed the 2005 order
while ignoring the intent of the parties.
5
September 2005, as well as the arrearage that existed for periods before April
2005). Mother testified that the parties did not agree in 2005 that she would
forgive any arrearages accruing before the trial court rendered an order
incorporating the parties’ agreement. No party asked for any other clarification of
the agreed order. Thus, having determined that the phrase did not mean what
Father urged it to mean, the trial court did not err by refusing to grant Father’s
requested relief. We overrule Father’s first and ninth issues.
In part of his second issue, Father contends that the trial court’s order
denying his motion for clarification is contradicted by its findings that the 2005
agreed order was a valid contract and that the parties had “a pre-existing
agreement that neither parent was obligated to pay child support while each had
one of their children living with them.” According to Father, that agreement
began in April 2005 when his daughter moved in with him before the 2005
agreed order was ratified and signed by the trial court. He argues that the “no
child support is due” language in the agreed order meant that the parties agreed
that no arrearage existed when the 2005 order was rendered.
There is no evidence other than Father’s testimony that the parties
intended their agreement to retroactively apply to the April through September
2005 payments accruing between the time their daughter moved in with Father
and the time the trial court approved their agreement; likewise, there is no other
evidence as to when they made the agreement to mutually forego child support.
Mother’s testimony that the parties intended their agreement to apply only going
6
forward from the date of the 2005 order contradicts Father’s testimony. In
addition, Father’s testimony is contradicted by evidence that when the 2005 order
was rendered, he was in arrears for child support that had accrued before April
2005. 4 We overrule that part of Father’s second issue.
In his sixth issue, Father contends that the trial court could not issue a
withholding order for child support arrears, having previously concluded that the
phrase “no child support is due” in the 2005 order did not include arrears.
Appellant contends the trial court has used two different definitions of “child
support,” one including arrears and one excluding arrears. We disagree. In
construing the 2005 order, the trial court construed the meaning of “is due” to be
prospective; in other words, it construed the phrase to mean that no child support
would be due beginning on the effective date of the 2005 order. We overrule
Father’s sixth issue.
Judgment Supported by Pleadings
In the remainder of his second issue, and in his seventh issue, Father
argues that the presiding judge was not authorized to render a judgment and
judicial withholding order for arrearages because no pleadings sought such relief.
4
Even if child support payments Father made in April through June 2005
were credited only toward that arrearage––$4,284.89 as of March 31, 2005––
rather than to the April through June monthly payments, an arrearage of
$1,027.91 still remained as of September 1, 2005. However, because the
payments Father made in April through June 2005 were credited to monthly
accruing payments, the arrearage as of September 28, 2005––the date of the
agreed order––was $7,651.09.
7
A trial court’s judgment must conform to the pleadings. Tex. R. Civ. P.
301. A trial court may not grant a party relief in the absence of supporting
pleadings unless the issue was tried by consent. See Tex. R. Civ. P. 67; Stoner
v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). An issue is tried by consent
when both parties present evidence on an issue and the issue is developed
during trial without objection. Ingram v. Deere, 288 S.W.3d 886, 893 (Tex.
2009). Trial by consent is intended for the exceptional case in which it appears
clearly from the record that the parties tried an unpleaded issue. City of The
Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 744 (Tex. App.––Fort
Worth 2008, pet. dism’d). When evidence relevant to both a pleaded and an
unpleaded issue has been admitted without objection, the doctrine of trial by
consent should not be applied unless clearly warranted. Id.
In the context of arguing against Father’s requested clarification, Mother’s
counsel pointed out that Father neglected to pay twelve months of child support
for W.M.H. after the parties’ daughter had been emancipated, in contravention of
their agreement. Counsel stated that if the trial court found that all child support
accruing before the 2005 order was forgiven as a result of the agreement, then
the court should take into account that twelve-month period Father did not pay
child support. The trial court reminded counsel that “[t]he only thing before the
Court today is the clarification of the -- if any -- of the 2005 order and what
retroactive effect, if any, that order should be given.”
8
During the hearing, Mother and the OAG presented evidence of the child
support Father owed when the 2005 order was rendered, including an arrearage
for amounts that had accrued before April 2005. At the end of the hearing, the
trial court indicated that it was going to confirm an arrearage of $10,153.05. The
trial court also indicated that it would render a new withholding order and that the
withholding order Father had challenged before the associate judge would be
effective only until November 1, 2013. Father’s counsel interjected as follows:
I just have a quick question. And it’s just procedural. Since
the only thing you were doing was hearing a clarification and the
appeal was not heard before the Court, shouldn’t just whatever was
ordered already be ordered and we can’t really confirm the
arrearage because that was already done?
The trial court responded, “I disagree. Because the clarification is -- and it works
both ways. I’m clarifying the orders and saying, this is what I find was meant by
that 2005 order. And this is the consequence of that clarification.” Counsel went
on to say, “I just wanted to make sure that we weren’t -- you know, that it was
okay to do that. I’m fine with you doing that. I just want to make sure that
procedurally it’s okay.” [Emphasis added.]
What happened here is similar to what happened in In re D.B.M. No. 05-
02-00322-CV, 2003 WL 22838948, at *1 (Tex. App.––Dallas Dec. 1, 2003, no
pet.) (mem. op.). In that case, the appellant had moved to reduce the amount of
his child support payments. Id. His counsel originally objected to testimony
regarding confirmation of any arrearage because the proceeding was not an
enforcement action. Id. However, when appellant was later questioned again
9
regarding arrearages, and appellant’s counsel had again objected, the following
exchange occurred:
The Court: Well, we need to have an-it’s not going to be contempt
but we need to have an order that has a finding in there as to what
the current arrearage is.
Ms. Allen: How do we determine if we don’t have the child support
records and I had not had a chance to do it?
The Court: I guess y’all are going to provided [sic] them for me and I
will have to go through them I assume.
Ms. Allen: Okay. That would be a fair way to do it Judge, let her
testify as to what.
The Court: We will take a look.
Ms. Allen: Absolutely.
Id. (emphasis added). The Dallas Court of Appeals determined that because the
appellant had agreed to let the trial court review the child support records to
determine an arrearage, the issue had been tried by consent. Id.
We conclude and hold that the situation here is similar. Although Father’s
counsel brought the matter to the trial court’s attention and the record shows that
the trial court understood the potential procedural problem, counsel ultimately
acquiesced in the trial court’s determining the arrearage as part of the
clarification proceeding. Accordingly, we conclude and hold that the issue was
tried by consent. See Tex. R. Civ. P. 67; D.B.M., 2003 WL 22838948, at *1.
Moreover, Father’s attempt to challenge an already-existing withholding order
10
was the basis of his motion to clarify. 5 We overrule this part of Father’s second
issue and his seventh issue.
Attorney’s Fees
In his tenth issue, Father contends that the trial court erred by making the
attorney’s fees award enforceable “by any means available for the enforcement
of a judgment for child support.” According to appellant, the supreme court’s
opinion in Tucker v. Thomas prohibits such an order. 419 S.W.3d 292, 295 (Tex.
2013).
In Tucker, the supreme court held that a trial court may not award
attorney’s fees in a nonenforcement modification suit as necessaries or
additional child support. Id. Family code section 106.002(b) provides that “[a]
judgment for attorney’s fees and expenses [in a nonenforcement suit] may be
enforced in the attorney’s name by any means available for the enforcement of a
judgment for debt.” Tex. Fam. Code Ann. § 106.002(b) (West 2014). Thus, the
trial court erred by ordering the attorney’s fees enforceable as child support
rather than an ordinary debt. See id.; Naguib v. Naguib, 183 S.W.3d 546, 548
(Tex. App.––Dallas 2006, no pet.). We sustain Father’s tenth issue and modify
the trial court’s judgment to state that Phillip E. Romero may enforce the
attorney’s fees judgment “by any means available for the enforcement of a
5
It appears from comments in the record that Father was subject to an
administrative withholding order by the OAG, which the trial court’s order
replaced. See generally Tex. Fam. Code Ann. § 158.502 (West 2014).
11
judgment for debt.” Tex. Fam. Code Ann. § 106.002(b); see Tucker, 419 S.W.3d
at 297, 300; Naguib, 183 S.W.3d at 547–48.
Conclusion
Having sustained Father’s tenth issue, we modify the trial court’s judgment
for attorney’s fees to provide that Phillip E. Romero may enforce the judgment for
attorney’s fees “by any means available for the enforcement of a judgment for
debt.” Having overruled or dismissed all of Father’s remaining issues, we affirm
the trial court’s December 2, 2013 order.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DELIVERED: November 6, 2014
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