Thaddeus Gene Roberts, Jr. v. Theresa Michelle Swain

Opinion issued May 13, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00801-CV
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THADDEUS GENE ROBERTS JR., Appellant
V.
THERESA MICHELLE SWAIN, Appellee
On Appeal from the 246th Judicial District Court
Harris County, Texas
Trial Court Case No. 2011-40527
MEMORANDUM OPINION
Thaddeus Gene Roberts Jr. appeals the district court’s order setting the
termination date of his child support obligation to Theresa Michelle Swain. He
contends that the district court erred because its determination of the termination
date is contrary to section 154.002(a)(2) of the Texas Family Code, section 25.085
of the Texas Education Code, and the findings of the Child Support Division of the
Office of the Attorney General of Texas (OAG). We affirm.
Background
On February 16, 2012, the OAG filed an Amended Suit for Modification of
Support Order and Motion to Confirm Support Arrearage related to Roberts’s and
Swain’s two children, S.D.G and S.L.G. 1 Roberts filed an Emergency Motion for
Temporary Orders on June 19, 2013, in which he argued that he had complied with
his child support obligations through October 2012 2 and had submitted
documentation to the OAG’s Child Support Division demonstrating that S.L.G.,
who turned eighteen years old in October 2012, 3 had failed to comply with
minimum attendance requirements entitling her to continued child support. 4 Based
1
In the suit, the AG stated that the order it sought to modify was the final divorce
decree signed January 31, 2000.
2
Roberts attached to his appellate brief as “Tab G” a copy of one page of a
fourteen-page order purportedly showing that the court increased Roberts’s
monthly child support obligation to $820.00 beginning June 1, 2012.
3
The amended suit states that S.D.G.’s birthdate is “12/14/1991” and S.L.G.’s
birthdate is “10/14/94.”
4
Under Family Code section 154.002, entitled “Child Support Through High
School Graduation,” a trial court may modify an existing support order providing
child support past the 18th birthday of a child who is enrolled in an accredited
secondary school in a program leading to a high school diploma and complying
2
on S.L.G.’s age and her alleged failure to comply with attendance requirements,
Roberts requested that the court enter a temporary order suspending the income
withholding order and collection of child support arrears pending a hearing. Swain
subsequently filed an answer alleging that Roberts had failed to make his child and
medical support payments as ordered by the court and that S.L.G. had been
enrolled for the 2012-13 school year and had met the minimum attendance
requirements entitling her to continued child support.
On August 28, 2013, the trial court conducted a hearing on the OAG’s
motion to confirm child support arrearage and to determine whether the child
support obligation had been fulfilled. At the conclusion of the hearing, the trial
court determined that (1) the evidence did not demonstrate that S.L.G. had failed to
comply with minimum attendance requirements and (2) Roberts’s child support
obligation had therefore terminated at the end of the school year on May 31, 2013. 5
Discussion
Roberts contends that the district court erred in determining that his child
support obligation terminated on May 31, 2013, rather than in October 2012. He
argues that, in doing so, the court disregarded Family Code section 154.002(a)(2),
with the minimum attendance requirements of Chapter 25, Subchapter C, of the
Education Code. See TEX. EDUC. CODE ANN. § 154.002(a) (West 2014).
5
In its order entered August 28, 2013, the trial court also found that Roberts owed
child support arrears of $4,279.73, and ordered him to pay the arrears at the rate of
$500 per month beginning October 1, 2013 until discharged.
3
Education Code section 25.085, and the findings of the OAG’s Child Support
Division.
The statutory sections upon which Roberts relies provide, in relevant part, as
follows:
§ 154.002. Child Support Through High School Graduation
(a) The court may render an original support order, or modify an
existing order, providing child support past the 18th birthday of the
child to be paid only if the child is:
(1) enrolled:
(A) under Chapter 25, Education Code, in an accredited
secondary school in a program leading toward a high school
diploma; . . . and
(2) complying with:
(A) the minimum attendance requirements of Subchapter C, Chapter
25, Education Code . . . .
TEX. FAM. CODE ANN. § 154.002(a)(1), (2) (2014).
§ 25.085. Compulsory School Attendance
...
(e) A person who voluntarily enrolls in school or voluntarily attends
school after the person’s 18th birthday shall attend school each school
day for the entire period the program of instruction is offered. A
school district may revoke for the remainder of the school year the
enrollment of a person who has more than five absences in a semester
that are not excused under Section 25.087. A person whose
enrollment is revoked under this subsection may be considered an
unauthorized person on school district grounds for purposes of
Section 37.107.
4
TEX. EDUC. CODE ANN. § 25.085(3) (West 2012).
Roberts argues that the district court based its decision that his child support
obligation had terminated on May 31, 2013, solely on the fact that S.L.G. was
enrolled as required under subsection (a)(1) of Family Code section 154.002, but
that it ignored the requirement under subsection (a)(2) that she comply with the
minimum attendance requirements. Roberts asserts that S.L.G. had fifteen
unexcused absences for the first semester of the school year and a total of thirty-six
unexcused absences for the entire school year. He argues that this number exceeds
the five unexcused absences permitted under section 25.085(e) of the Education
Code.
In support of his assertion that S.LG. exceeded the number of permitted
absences, Roberts relies on two of S.L.G.’s report cards for the 2012-2013 school
year. However, the report cards are not evidence that S.L.G. did not meet the
minimum attendance requirements. Specifically, the report cards show only the
number of S.L.G.’s absences during the school year but do not indicate which, if
any, were unexcused. Further, the report cards reflect that S.L.G. received credit
and grades in each grading period of the 2012-13 school year, undermining
Roberts’s contention that S.L.G. did not meet minimum attendance requirements.6
6
At the hearing, the trial court reached a similar conclusion:
5
We conclude that the trial court’s determination that Roberts’s child support
obligation terminated on May 31, 2013 does not conflict with Family Code section
154.002(a)(2) or Education Code section 25.085.
Roberts also contends that the trial court erred because its determination
conflicted with the findings of the OAG’s Child Support Division that his
obligation had terminated in October 2012. However, appellant cites no
authority—nor are we aware of any—stating that a letter from an individual at the
OAG is binding upon the trial court. Cf. In re Smith, 333 S.W.3d 582, 588 (Tex.
2011) (noting Attorney General opinions are persuasive but not binding); Holmes
v. Morales, 924 S.W.2d 920, 924 (Tex. 1996) (stating Attorney General opinions
are persuasive but not controlling authority).
We conclude that the trial court did not err in determining that Roberts’s
child support obligation terminated at the end of the school year on May 31, 2013.
As such, we overrule Roberts’s issues one through three.
She got a report card; she attended. If they said, “You don’t get a
report card because you didn’t attend and you don’t qualify as a full-
time student,” then that’s it. But if they give a report card and say,
“You missed some number of days, but here are your grades,” then
she attended and missed 45 days.
6
Conclusion
We affirm the trial court’s order.
Jim Sharp
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
7