Castillo v. Castillo

714 S.W.2d 440, 1986 Tex. App. LEXIS 8214
CourtCourt of Appeals of Texas
DecidedJuly 23, 1986
Docket04-85-00151-CV
StatusPublished
Cited by2 cases

This text of 714 S.W.2d 440 (Castillo v. Castillo) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castillo v. Castillo, 714 S.W.2d 440, 1986 Tex. App. LEXIS 8214 (Tex. Ct. App. 1986).

Opinion

OPINION

REEVES, Justice.

This is an appeal from two judgments in a child support enforcement action emanating from a motion for contempt and a motion to reduce to judgment unpaid child support payments. The trial court deducted $10,000.00 from an uncontested $18,-000.00 arrearage, and found the obligor in contempt with regard to the remaining $8,000.00 past due child support. The trial judge allowed the appellee to pay the $8,000.00 in $2,000.00 installments over a period of two years. The trial court also rendered a money judgment in behalf of appellant for $8,000, but suspended the enforceability of the judgment for two years so that appellee might pay that sum according to the schedule set forth in the contempt order.

FACTS

From November 11, 1974, to October 11, 1984, appellee Santiago Castillo did not pay appellant Barbara Castillo the $150.00 per month child support ordered in the divorce decree of October 24,1974. On October 12, 1984, appellant filed in the trial court a Motion for Contempt for Failure to Pay Child Support and a Motion to Reduce Unpaid Child Support to Judgment.

Appellant’s motion for contempt was made pursuant to TEX. FAM. CODE ANN. § 14.09(a) (Vernon 1975), repealed effective September 1, 1985; her motion to reduce to judgment was made pursuant to § 14.09(c) of the Family Code (repealed 1985). Both motions allege that appellee had not made child support payments totaling $18,000.00, because he had failed to *441 make even one of the 120 monthly child support payments of $150.00 each.

After an evidentiary hearing, the trial court entered an order holding respondent in contempt of court for failure to pay child support and another order reducing the unpaid child support to judgment. Both orders contain the following finding:

The Court further finds that Respondent’s above-described $18,000.00 total arrearage in unpaid child support should be reduced by the amount of $10,000.00, to the sum of $8,000.00, for the reason that Movant waited nearly 10 years to seek enforcement of the child support provisions of this Court’s final Judgment of Divorce signed on October 24, 1974, and that the amount of back-due child support that should be adjudged against Respondent should be $8,000. In addition, the Court finds that the Respondent is currently unable to pay on a lump-sum basis $8,000 in back-due child support, but that he is able to pay, in addition to his regular $150.00 per month child support payments for Santiago Castillo, Jr., the sum of $2,000 every six months.

POINTS OF ERROR

Appellant asserts the following trial court errors:

1. The trial court abused its discretion in forgiving $10,000 of the $18,000 arrear-age in child support payments for the sole reason that appellant had not instituted enforcement proceedings until nearly 10 years after the first of such payments fell due.

2. The trial court committed reversible error by relying either on the delay factor or on the appellee’s economic circumstances to disallow the appellant her concurrent, but independent, remedy of a reduction of the uncontested $18,000 arrearage to an immediately enforceable judgment for that amount, and for post-judgment interest from the date of judgment.

3. The trial court erred in not adjudging appellee liable for appellant’s reasonable attorney’s fees incurred in the proceedings.

In reply, appellee contends that appellant is precluded from raising points of error one and two because of appellant’s failure to sufficiently make known to the trial court his objection and the action appellant wanted the court to take; to wit: judgment for the entire $18,000.

PRESERVATION OF ERROR

Rule 373 of the Texas Rules of Civil Procedure (Vernon 1985) provides as follows:

Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection at the action of the court and his grounds therefor; and if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.

Since no formal written exception to the trial court’s ruling was filed, we must look to the statement of facts for guidance. The court reporter’s transcription leaves much to be desired, but the attorneys have approved the statement of facts as correct. Attorney for appellee did, however, take exception to grammar, spelling, and punctuation errors.

Prior to the ruling by the court, the attorney for appellant informed the court, “The court is powerless to retroactively change the amount of child support which has accrued. It is certainly within the court’s discretion. We recognize the fact that the arrearage is to be brought current on the terms, forgiving payments which have not been made and are due are within the powers of the court.” Admittedly, the statement can be considered paradoxical, but counsel later stated in the same argument, “Our position is that no amount of money can be deducted from this $18,000 arrearage.” The court took the case under advisement. At a hearing on the entry of *442 judgment, counsel for appellant, prior to final rendition, stated, “Two final matters, Mrs. Castillo has moved that the amount of arrearage, the alleged 8,000 to be reduced to judgment again without waiving her claim of arrears of the $18,000.00_”

In PGP Gas Products, Inc. v. Fariss, 620 S.W.2d 559, 560 (Tex.1981) our Supreme Court said,

Predicates for complaints on appeal must be preserved at the trial court level by motion, exception, objection, plea in abatement, or some other vehicle. The complaint must identify the objectionable matter or event sufficiently for the opposite party to cure any deficiency and for the trial judge to know the nature of the alleged error.

We are of the opinion that appellant’s objections to the court ruling were sufficient to make known the action appellant desired the court to take.

THE JUDGMENT

We have no jurisdiction to review the contempt order. Ex parte Caldwell, 416 S.W.2d 382 (Tex.1967); Lamka v. Townes, 465 S.W.2d 386 (Tex.Civ.App.-Amarillo 1971, writ ref’d n.r.e.). Assuming, however, that even if we had jurisdiction to review the contempt order, we would find no error in it because the trial court had the discretion to change, alter, or suspend the child support order. Menner v. Ranford, 487 S.W.2d 698 (Tex.1972); Frank v. Reese, 594 S.W.2d 119 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ).

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Bluebook (online)
714 S.W.2d 440, 1986 Tex. App. LEXIS 8214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castillo-v-castillo-texapp-1986.