In Re ACB

302 S.W.3d 560, 2009 WL 4876797
CourtCourt of Appeals of Texas
DecidedDecember 17, 2009
Docket07-08-0440-CV
StatusPublished

This text of 302 S.W.3d 560 (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, 302 S.W.3d 560, 2009 WL 4876797 (Tex. Ct. App. 2009).

Opinion

302 S.W.3d 560 (2009)

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

No. 07-08-0440-CV.

Court of Appeals of Texas, Amarillo, Panel B.

December 17, 2009.

*561 Christopher K. Wrampelmeier, Underwood Wilson Berry Stein & Johnson, P.C., Amarillo, TX, for Appellant.

Rush S. Wells, Ratliff & Wells, Littlefield, TX, for Appellee.

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

MACKEY K. HANCOCK, Justice.

Appellant, Stephen Barth, appeals a judgment that granted appellee, Becky Shurbet, a cumulative judgment for child support arrearage of $14,324.31 against *562 Barth. By six issues, Barth appeals. We reverse in part and affirm in part.

Background

On November 14, 1984, Barth and Shurbet, while still married, had a child, A.C.B. Subsequently, Barth and Shurbet divorced. On August 6, 1999, the trial court rendered an order regarding Barth's visitation with A.C.B. and his child support obligations that was based on a Rule 11 agreement between Barth and Shurbet. On March 9, 2001, the trial court signed an Order on a Motion to Modify that reflected the terms of the parties' agreement. On August 29, 2001, Shurbet filed a Motion for Contempt seeking enforcement of the March 9th Order. The following day, the trial court signed a Nunc Pro Tunc Addendum Order to Correct and Clarify Order Dated March 9, 2001.

A hearing was held on Shurbet's Motion for Contempt on December 19, 2001. At this hearing, Shurbet testified that Barth was in arrears on his monthly child support payments in an amount of $5,700.[1] The March 9th order also provided that Barth was to pay half of all tuition and fees incurred by A.C.B. for her attendance at Trinity Christian Schools; half of the cost for A.C.B.'s extracurricular activities, namely cheerleading and dance, limited to a total of $3,000 per year; and half of all uninsured medical expenses. Shurbet testified that A.C.B.'s tuition and fees, for the period from August 20, 1999, through August 2001, was $5,466.84. She testified that half of the extracurricular activities was $1,287.57. Shurbet testified that half of the medical expenses were $876.41. Shurbet testified that the total obligation owed by Barth, as of the time that the petition was filed, was $14,830.82.[2] Shurbet also testified that she owed Barth $2,500 that she had been ordered to pay him as well as $239.25 for a doctor's bill. Accounting for the $2,700 that Barth had paid toward his monthly child support obligation as well as offsetting the amounts that Shurbet recognized as owing to Barth, Shurbet testified that the total that Barth owed, as of August 1, 2001, was $9,973.65.[3] Shurbet testified, during cross-examination, that she did not submit copies of all of the medical bills to Barth within 10 days of her receipt of same, as was required by the March 9th Order. Barth testified that the Trinity tuition was $415 per month. Further, Barth admitted that he had stopped paying his monthly child support and that he had not made payments for A.C.B.'s tuition and fees, extracurricular activities, and unreimbursed medical expenses. At the close of this hearing, the trial court stated that it would do some research and then notify the parties when it reached a decision.

On August 7, 2007, Shurbet filed a Motion to Enter Judgment on the Motion for Contempt that was filed on August 29, 2001. The trial court held a hearing on the Motion to Enter Judgment on November 28, 2007. At the conclusion of this hearing, the trial court rendered judgment that Barth's child support arrearages, as of the December 19, 2001 hearing, were *563 $5,700 for monthly child support, $5,466.84 for tuition and fees, $1,287.50 for extracurricular activities, and $876.41 for medical expenses. The court also found that Shurbet owed Barth $2,500. The trial court awarded Shurbet $900 as reasonable attorney's fees. In its Reformed Judgment for Child Support Arrearage, the trial court found that Barth's total child support arrearages, as of December 19, 2001, was $13,176.20. The trial court then assessed interest on that amount from the date of the 2001 hearing. The trial court also found that Shurbet owed Barth $2,500, assessed interest on that amount, and offset it from the judgment awarded to Shurbet. After allowing the offset, the trial court entered judgment in favor of Shurbet for a total of $13,131.14. However, the Reformed Judgment also granted a "cumulative judgment" to Shurbet for child support arrearage and interest in an amount of $14,324.31. The trial court entered findings of fact and conclusions of law regarding how it reached the award of $13,131.14 awarded to Shurbet. Notably, nothing in the findings of fact and conclusions of law nor the Reformed Judgment explains how the cumulative judgment amount was reached. In a timely filed motion for new trial, Barth identified that the Reformed Judgment failed to allow an offset of the $239.25 medical expense that Shurbet acknowledged owing Barth. The motion for new trial appears to have been overruled by operation of law.

By six issues, Barth appeals the Reformed Judgment for Child Support Arrearage. By his first three issues, Barth contends that the trial court abused its discretion in granting judgment for the tuition and fees, extracurricular activities, and medical expenses. By his fourth issue, Barth contends that the trial court erred in not offsetting his arrearage by the $239.25 medical expense that Shurbet acknowledged owing Barth. By his fifth issue, Barth contends that the trial court abused its discretion in granting prejudgment interest on the arrearages relating to tuition and fees, extracurricular activities, and medical expenses. By his sixth issue, Barth contends that the trial court abused its discretion in awarding its cumulative judgment.

Tuition and Fees, Extracurricular Activities, and Medical Expenses

By his first three issues, Barth contends that the trial court abused its discretion in granting judgment in favor of Shurbet on her claims for tuition and fees, extracurricular activities, and medical expenses. Barth contends that there was no or insufficient evidence to support the amount of each of these expenses. Further, as to the tuition and fees and extracurricular activities, Barth contends that the evidence was insufficient to establish that Shurbet held any right to receive these awards since the order required Barth to pay these expenses directly to the provider. Finally, in regard to the medical expenses, Barth contends that Shurbet failed to establish that she complied with the order's requirement that she provide Barth with a copy of the bills within 10 days of her receipt of the bills.

Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict upon jury questions and are reviewable for legal and factual sufficiency. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). However, a trial court's decision to grant or deny the relief requested in a motion for enforcement[4] is reviewed for an abuse of discretion. See Beck v. Walker, 154 *564 S.W.3d 895, 901 (Tex.App.-Dallas 2005, no pet.). Under this abuse of discretion standard, sufficiency of the evidence is not an independent ground of error, but rather is a relevant factor in assessing whether the trial court abused its discretion. Id. at 902.

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Cite This Page — Counsel Stack

Bluebook (online)
302 S.W.3d 560, 2009 WL 4876797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-acb-texapp-2009.