In Re ACB

103 S.W.3d 570, 2003 WL 236261
CourtCourt of Appeals of Texas
DecidedFebruary 5, 2003
Docket04-02-00076-CV
StatusPublished

This text of 103 S.W.3d 570 (In Re ACB) 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
In Re ACB, 103 S.W.3d 570, 2003 WL 236261 (Tex. Ct. App. 2003).

Opinion

103 S.W.3d 570 (2003)

In the Interest of A.C.B., A Child.

No. 04-02-00076-CV.

Court of Appeals of Texas, San Antonio.

February 5, 2003.

*572 John B. Worley, Rhonda Amkraut Pressley, Asst. Atty. Gen., Austin, for Appellant.

Kay Martinez, Law Offices Of Kay Martinez, P.C., Melissa Ann Binder (OTH), San Antonio, for Appellee.

Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.

Opinion by: SANDEE BRYAN MARION, Justice.

This appeal, brought by the Office of the Attorney General ("AG"), complains of the trial court's declaratory judgment and an order clarifying that judgment in favor of Christopher Binder. We affirm that portion of the judgment ordering the AG to withdraw the administrative writ of withholding and to contact Binder's employer and credit reporting agencies that no child support arrearage exists, and we affirm that portion of the judgment sanctioning the AG $500. We reverse and vacate the clarifying order because it was signed after the trial court's plenary jurisdiction expired and is not a proper "clarification" as allowed by the Family Code.

PROCEDURAL/FACTUAL BACKGROUND

Binder and his wife divorced in October 1998. The divorce decree required Binder to pay $548 per month in child support, beginning March 31, 1998. Binder was obligated to make his child support payments through the Bexar County Child Support Registry; however, because the decree was not signed until October 1998, he paid his former wife directly from March 31, 1998 through October 1998. In November 1998, an account was established with the Registry, and Binder's payments for November 1998 through December 29, 2000 were recorded. However, because the account was not established until November 1998, Binder's previous payments were not recorded and the Bexar County Child Support Information System showed an arrearage. As a result, on April 18, 2001, the AG sent Binder a notice of intent to report him to credit reporting agencies for non-payment of child support. The notice stated Binder was in arrears in the amount of $5,868.47, and that he could contest the amount by contacting a local *573 child support office within thirty days and filing "a written request for administrative hearing."

On May 4, 2001, the AG filed, with the district clerk, a notice of administrative writ of withholding and a copy of the writ. After the writ issued, Binder met with a representative of the AG, and presented hand-written receipts signed by his former wife proving his payments for March through October 1998. According to Binder, the representative told him "only a judge could say that [the receipts] were valid" and "[the AG] would have to get an affidavit from [his former wife] stating that [Binder] was not behind." Binder understood that the AG would contact his former wife about the affidavit, but he later testified that she was not contacted by the AG. Binder himself asked his former wife for an affidavit, which she refused to provide.

On May 31, 2001, Binder filed a Motion for Declaratory Judgment, asking the court to (1) enter judgment that he was not in arrears and is current in his support obligation, (2) sanction the AG and his former wife, and (3) notify any entity previously contacted that he was not in arrears. He did not ask that the writ be withdrawn. Following a September hearing, the trial court signed on November 7th, an Order on Motion for Declaratory Judgment. The judgment declared that Binder had no child support arrearage, ordered the AG to withdraw the writ, ordered that any entities informed of an arrearage be notified that the report was in error, and sanctioned the AG $500. The court also issued findings and conclusions.

Binder later filed a Motion for Clarification of Prior Order, asking that the court order the AG to return to him sums withheld to satisfy the alleged arrearage or credit the amount to his current support obligation. The AG objected to Binder's motion and also asked the court to suspend the declaratory judgment. At the conclusion of a February 12, 2002 hearing, the trial court ordered a two-month abatement of child support. The trial court denied the AG's request to suspend the declaratory judgment; however, on March 28, 2002, this court suspended the trial court's imposition of sanctions pending appeal. On April 4, 2002, the trial court signed an Order on Motion for Clarification of Prior Order ("clarification order"), abating support for May and June 2002.

This court consolidated the AG's appeal from the declaratory judgment with its appeal from the clarification order. The AG raises the following complaints on appeal: (1) the trial court did not have jurisdiction to issue the declaratory judgment, (2) the evidence is legally and factually insufficient to support the sanctions, and (3) the trial court erred in issuing the clarification order.

JURISDICTION

The AG asserts the trial court did not have jurisdiction because Binder did not first exhaust his administrative remedies, sovereign immunity bars Binder's declaratory judgment action, and a declaratory judgment action was an improper remedy because the underlying dispute involved only the resolution of a factual issue (the existence of an arrearage).

Family Code section 158.506, which governs contests to writs of withholding, provides as follows:

(a) Except as provided by Section 158.502(c), an obligor receiving the notice under Section 158.505 may request a review by the Title IV-D agency to resolve any issue in dispute regarding the identity of the obligor or the existence or amount of arrearages. The Title IV-D agency shall provide an opportunity for a review, by telephonic conference or *574 in person, as may be appropriate under the circumstances.
(b) After a review under this section, the Title IV-D agency may issue a new administrative writ of withholding to the employer, including a writ modifying the amount to be withheld or terminating withholding.
(c) If a review under this section fails to resolve any issue in dispute, the obligor is entitled to the remedies provided by Section 158.317 for cases in which a notice of an application for judicial writ of withholding was not received. The obligor may file a motion with the court to withdraw the administrative writ and request a hearing with the court not later than the 30th day after receiving notice of the agency's determination. Income withholding may not be interrupted pending a hearing by the court.

Tex. Fam.Code Ann. § 158.506 (Vernon 2002). Section 158.317 provides that "the obligor may file a motion to withdraw the writ of withholding and request a hearing on the applicability of the writ." Id. § 158.317(b).

Administrative Remedy

We do not address the AG's argument that section 158.506 provides an "administrative remedy" that first must be exhausted before an obligor can resort to a court, or whether this section provides the exclusive method for challenging an administrative writ of withholding. Assuming without deciding that Binder was required to follow the procedures outlined in section 158.506, we conclude that he did so. Binder met with a representative of the AG.[1] After being told that "only a judge could say that [the receipts] were valid," Binder filed his motion for declaratory judgment within thirty days after meeting with the AG.[2]

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In the Interest of A.C.B.
103 S.W.3d 570 (Court of Appeals of Texas, 2003)

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Bluebook (online)
103 S.W.3d 570, 2003 WL 236261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-acb-texapp-2003.