in the Interest of C. M and O. M

• Court: Court of Appeals of Texas
• Decided: February 28, 2006
• Docket: 14-03-01098-CV
• Status: Published

Opinion

Affirmed in Part and Dismissed in Part and Memorandum Opinion filed February 28, 2006

Affirmed in Part and Dismissed in Part and Memorandum Opinion filed February 28, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-03-01098-CV

IN THE INTEREST OF C.M. & O.M.

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On Appeal from the 245th District Court

Harris County, Texas

Trial Court Cause No. 92-61604

M E M O R A N D U M   O P I N I O N

Appellee Jennifer Yvette Landheart moved for enforcement of child support against appellant Randy David Moore.  Following a hearing on Landheart=s motion for enforcement, the trial court entered an order holding Moore in contempt for failing to timely pay monthly child support.  The trial court also entered an order clarifying Moore=s monthly child support obligations.  Moore appeals both orders.  For the reasons set forth below, we dismiss in part and affirm in part.

I.  Factual and Procedural Background

On January 10, 1994, the 245th District Court of Harris County entered an Agreed Order to Establish a Parent-Child Relationship (the AAgreed Order@) providing for the support of Landheart and Moore=s minor children, C.M. & O.M.  Under the terms of the Agreed Order, Moore was ordered to pay Aregular child support payments in the sum of $500.00 each month beginning the 1st day of February 1994, payable on or before the date and on or before the same day each month thereafter . . . .@  The order required that all payments be made through the registry of the court, and explained that amounts withheld by Moore=s employer Aas set out more fully in [the Wage Withholding Order] . . . shall constitute a credit against Obligor=s child support obligation, but shall not discharge any of Obligor=s child support obligation which exceeds the amount so credited.@  Pursuant to the terms of the Wage Withholding Order referred to in the Agreed Order, Moore=s employer began withholding $115.39 from Moore=s weekly paycheck.

On April 28, 2003, Landheart filed a motion for enforcement of the Agreed Order, alleging that Moore=s child support payments were in arrears by $653.76.  She asked the trial court to hold Moore in contempt for failing to timely pay child support, and to enter an order clarifying any part of the Agreed Order lacking sufficient specificity to be enforced by contempt.  At the hearing on Landheart=s motion, she offered additional grounds for holding Moore in contempt.  Specifically, she asked the trial court to find Moore in contempt because he was paying $115.39 per week via wage withholding instead of paying $500.00 on the first day of the month. 

On June 27, 2003, the trial court signed two written orders.  In its Order on Motion for Enforcement of Child Support (the AEnforcement Order@), the trial court found that Moore was not timely in making all of his court-ordered child support payments.  The trial court also found that Moore=s failure to make timely payments was Aa violation of [the court=s] orders and a contemptible offense.@  Although the trial court adjudged Moore to be in contempt for the violations, Moore was not incarcerated or fined, but was ordered to pay Landheart=s attorney=s fees and court costs.  In its Order Clarifying Monthly Child Support Obligation (the AClarifying Order@), the trial court amended the 1994 Agreed Order to recite the terms and payment schedule of the Wage Withholding Order.  The amounts due and the intervals of payment remained the same.

Moore filed a Motion for Reconsideration asking the court to grant a new trial, but his motion was denied.  This appeal followed.

II.  Issues Presented

In two issues, Moore contends (1) the trial court erred when it found him in contempt, and (2) the trial court lacked jurisdiction to clarify the Agreed Order.  Landheart did not file a brief.  Before addressing the merits of Moore=s first issue, however, we must determine whether we have jurisdiction to do so.

III.  Analysis

A.        Does This Court Have Jurisdiction to Review the Trial Court=s Contempt Finding?

Moore contends the trial court=s order of contempt is void because Landheart=s motion for enforcement made no reference to any violation of the Wage Withholding Order.  Accordingly, he argues, the trial court erred by finding him in contempt for any perceived violations of that order.

We are obligated to determine, sua sponte, our jurisdiction to hear and consider an appeal.  Espeche v. Ritzell, 65 S.W.3d 226, 230 (Tex. App.CHouston [14th Dist.] 2001, no pet.).  Because the question of jurisdiction is a legal question, we follow the de novo standard of review.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  We do not presume jurisdiction.  El-Kareh v. Tex. Alcoholic Beverage Comm=n, 874 S.W.2d 192, 194 (Tex. App.CHouston [14th Dist.] 1994, no pet.).  If the record does not affirmatively demonstrate the appellate court=s jurisdiction, the appeal must be dismissed.  Id.

Courts of appeals generally do not have jurisdiction to review contempt orders by way of direct appeal.  In re M.E.G., 48 S.W.3d 204, 209 (Tex. App.CCorpus Christi 2000, no pet.); In re T.L.K., 90 S.W.3d 833, 841 (Tex. App.CSan Antonio 2002, no pet.).  This is true even where the contempt order is appealed along with a judgment that is appealable.  M.E.G., 48 S.W.3d at 209.  Where the contempt order involves confinement, habeas corpus is the proper form of relief.  Id.  Where the contempt order does not involve confinement, Athe only possible relief is a writ of mandamus.@  In re Long, 984 S.W.2d 623, 625 (Tex. 1999).  Because the contempt order at issue does not order confinement, it must be challenged through a petition for a writ of mandamus.  Because we are without jurisdiction to consider this issue as presented on direct appeal, Moore=s appeal of the contempt order is dismissed.

B.        Did the Trial Court Err by Clarifying the Terms of the Agreed Order?

Moore next argues the trial court did not have jurisdiction to make any corrections to the original Agreed Order because its plenary jurisdiction had expired.  This argument is without merit.  For example, a trial court may enter a judgment nunc pro tunc to correct a clerical error at any time, even after it has lost jurisdiction over the case.  In re Bridges, 28 S.W.3d 191, 195 (Tex. App.CFort Worth 2000, orig. proceeding); Tex. R. Civ. P. 316.  In addition, a court of continuing jurisdiction in a suit affecting the parent-child relationship may clarify a prior order that is not specific enough to be enforced by contempt.  Tex. Fam. Code Ann. ' 157.421 (Vernon 2002).^[1]  Moore does not contend that this statute is inapplicable, nor does he argue that the Agreed Order was sufficiently specific to be enforced by contempt in the absence of clarification.

Moore next contends that the Clarifying Order modifies the Agreed Order rather than simply correcting clerical errors.  However, Moore offers no support for this argument.  He does not discuss the content of either order, identify any substantive change, or point out any obligation imposed by the Clarifying Order that was not already imposed by the Agreed Order.  Cf. McGehee v. Epley, 661 S.W.2d 924, 925B26 (Tex. 1983) (an order imposing a specific obligation to pay where no such obligation had previously existed is an unlawful substantive change, not a mere clarification or correction of a clerical error). 

Where appellant=s stated issues are not supported by authorities or citation to the record, but instead contain mere conclusory argument, those issues are waived.  Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc. 889 S.W.2d 666, 671 (Tex. App.CHouston [14th Dist.] 1994, writ denied).  Accordingly, we overrule Moore=s second issue.

IV.  Conclusion

We hold that this court lacks jurisdiction to consider the contempt order on a direct appeal, and therefore, we dismiss the appeal of that issue.  We further hold that Moore has waived his issues pertaining to the Clarifying Order and we affirm that portion of the trial court=s judgment.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed February 28, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.

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^[1]  Moore does not contend that the Clarifying Order was not permitted by section 157.421.