In Re CP

327 S.W.3d 296, 2010 WL 3770937
CourtCourt of Appeals of Texas
DecidedSeptember 29, 2010
Docket08-08-00350-CV
StatusPublished

This text of 327 S.W.3d 296 (In Re CP) 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 CP, 327 S.W.3d 296, 2010 WL 3770937 (Tex. Ct. App. 2010).

Opinion

327 S.W.3d 296 (2010)

In the Interest of C.P., J.L., J.L., and L.A.L., Children.

No. 08-08-00350-CV.

Court of Appeals of Texas, El Paso.

September 29, 2010.

*297 Marlene Gonzalez, El Paso, TX, for Appellant.

Patrick Bramblett, Bramblett & Associates, El Paso, TX, for Appellee.

Michael D. Becker, Office of the Attorney General, Rande K. Herrell, John B. Worley, Appellate Litigation Section— Child Support Division, Assistant Attorney Generals, Austin, TX, for Real Party in Interest.

Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

GUADALUPE RIVERA, Justice.

Appellant, Maria Delgado, appeals the trial court's child-support judgment in favor of Appellee, Juan Lara. For the following reasons, we affirm.

BACKGROUND

Maria Luisa Delgado and Juan Crisostomo Lara married and had four children. C.P., the oldest, was born on October 28, 1972, J.L. and J.L., the twins, were born on October 10, 1975, and L.A.L., the youngest, was born on October 24, 1980. In 1986, Delgado and Lara divorced. The divorce decree, which is not part of the appellate record, ordered Lara to pay child support in the amount of $124 each month. The parties do not dispute that amount or that the decree was silent as to when Lara's obligation ceased.

*298 On November 2, 2006, the Attorney General filed a motion to confirm unpaid child support, alleging arrears in excess of $22,000. The matter was referred to the associate judge. At the hearing on the motion, the associate judge received into evidence the payment history attached to the Attorney General's motion alleging the arrearage. Lara, however, testified that he paid the entire amount. Delgado contested that Lara always paid the child support due, but noted that when he turned 65, the children received over $200 in Social Security benefits each month. She also testified that L.A.L., the youngest, ran away when he was 15 years old. For a few months, L.A.L. lived with his uncle, but he later moved in with C.P. During that time, Delgado continued to support L.A.L.

At the conclusion of the hearing, the associate judge was concerned that L.A.L. became emancipated at age 15, and therefore, any child-support obligation terminated, rendering the Attorney General's motion to confirm untimely filed. The judge also noted that since Lara received an award for Social Security, one of the issues presented was whether those payments to his children, in an amount larger than the ordered child support, could offset or credit the arrearage amount, if any. The Attorney General waived any argument on the Social Security issue, and the associate judge thereafter stated that there "are zero arrears." The written judgment reflects that the associate judge "finds and confirms" that Lara was "in arrears in the amount of $zero," and that the court "grants and renders" judgment against Lara and in favor of the Attorney General in the amount of "zero." Delgado then appealed the associate judge's determination, and the trial court found no error in the judgment. Delgado now appeals that determination.[1]

DISCUSSION

Delgado brings two issues for our review. The first asserts that the trial court erred by granting a Social Security disability offset or credit to Lara's child-support arrearage when Section 157.262(a) of the Family Code, as in effect when the trial court rendered its judgment, did not authorize the offset or credit. And the second issue contests the trial court's authority to grant such a credit or offset when Lara never filed a motion to modify the original child-support order. Lara responds that the trial court never obtained jurisdiction over the motion to confirm arrearage as the motion was not brought within ten years after the date the child-support obligation terminated as a matter of law, and that even if the trial court had jurisdiction, because the trial court found no arrearage, there was no credit, nor was he required to file a motion to modify.

Jurisdiction

Initially, we address Lara's jurisdictional contention. Section 157.005 of the Family Code addresses how long a court retains jurisdiction to confirm child-support arrearages. See In re S.C.S., 48 S.W.3d 831, 834 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). As applicable in this case, the statute limits a trial court's jurisdiction to confirm a child-support arrearage and render a cumulative monetary judgment for past-due child support where the motion for enforcement was filed not later than the tenth anniversary after the date the child became an adult, or on which the child-support obligation terminated under the order or by operation of law. TEX. FAM.CODE ANN. § 157.005(b) (Vernon 2008).

*299 The parties do not contest that the original decree of divorce is silent as to the duration of the child-support obligation. When the decree is silent, the child-support obligation terminates on the marriage of the child, the removal of the child's disabilities for general purposes, the death of the child, or upon a finding by a court that the child was 18 years of age or older and has failed to comply with the enrollment or attendance requirements for school, or enlists in the armed forces. See TEX. FAM.CODE ANN. § 154.006(a) (Vernon 2008). Here, Lara contends that his child-support obligation terminated when L.A.L. left home at 15, claiming L.A.L.'s disabilities were removed, that is, he alleges L.A.L. was emancipated by operation of law when he left Delgado's home to live with C.P., the oldest child, from the time he was 15 years old until he reached age 18. Thus, Lara asserts that the motion to confirm child-support arrearage was not timely filed.

L.A.L. was born on October 24, 1980. The motion to confirm arrearage was filed on November 2, 2006. Therefore, if L.A.L. was emancipated at age 15, as claimed by Lara, the motion to confirm arrearage was due no later than October 24, 2005. See TEX. FAM.CODE ANN. § 157.005(a). However, if L.A.L. was not emancipated, the motion to confirm was timely filed as it fell within ten years from the time L.A.L. was 18. See id.; TEX. FAM.CODE ANN. § 154.006(a).

Standard of Review

Whether a minor has been emancipated is ordinarily a fact question to be determined from the statements and conduct of the parents and other surrounding circumstances where the evidence on the issue is conflicting. Durham v. I.C.T. Insurance Co., 283 S.W.2d 413, 415 (Tex.Civ. App.-Dallas 1955, writ dism'd); Smith v. Rickerts, 38 S.W.2d 644, 647 (Tex.Civ. App.-Amarillo 1931, no writ). However, when the evidence is undisputed, the question is one of law. Smith, 38 S.W.2d at 647.

Application

In Texas, a minor's cessation of living with the managing conservator, without more, is insufficient to establish emancipation. See Williams v. Patton, 796 S.W.2d 526, 531 (Tex.App.-Houston [1st Dist.] 1990), aff'd on other grounds, 821 S.W.2d 141 (Tex.1991); Laird v. Swor, 737 S.W.2d 601, 603 (Tex.App.-Beaumont 1987, no writ);

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Bluebook (online)
327 S.W.3d 296, 2010 WL 3770937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cp-texapp-2010.