In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-17-00426-CV ___________________
IN THE INTEREST OF D.S.H.
__________________________________________________________________
On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 09-10-09572-CV __________________________________________________________________
MEMORANDUM OPINION ON REHEARING EN BANC 1
In this appeal, D.S.H.’s Father2 filed an appeal from the trial court’s amended-
final judgment, rendered in 2017, refusing his request asking the trial court to
1 We issued our original Memorandum Opinion in this case on August 30, 2018. Appellant filed a motion for rehearing en banc, which we granted. We correct the opinion upon that rehearing, but the disposition remains the same. See In re D.S.H., No. 09-17-00426-CV, 2018 Tex. App. LEXIS 7128 (Tex. App.—Beaumont Aug. 30, 2018, no pet. h.) (mem. op.); see also Tex. R. App. P. 49.3. 2 To protect the identity of the individuals who are the interested parties to the judgment being appealed, we identify the child by using a pseudonym, David, and we identify David’s parents based on their familial relationship to him. See Tex. R. App. P. 9.8(a), (b). 1 retroactively modify a temporary child-support order rendered in December 2013.3
According to Father, the trial court failed to properly calculate the support amounts
awarded in the December 2013 temporary order. Father contends the error occurred
when the trial court calculated the amounts Father had to pay in support because the
court failed to adjust his child-support obligation by reducing it to account for the
disability benefits David was receiving because of his father’s disability. Father
concludes that the trial court should have corrected the problem created in the
temporary order when the court calculated his support obligation without giving him
the benefit of the disability credit. Father also argues that the trial court’s refusal to
declare that he was not in arrears when rendering the amended-final judgment
violated the mandate this Court issued in Father’s prior appeal. 4 See In re D.S.H.,
No. 09-16-00109-CV, 2017 Tex. App. LEXIS 3525, at *16-18 (Tex. App.—
Beaumont 2017, no pet.) (mem. op.) (requiring the trial court, on remand, to
recalculate Father’s support obligation under the final judgment to account for the
3 Father did not challenge the December 2013 temporary order by filing a petition seeking a writ of mandamus. Instead, he appeals from the amended-final judgment, rendered in September 2017, which reveals that the trial court implicitly rejected Father’s argument suggesting that the amended-final judgment should include language stating that he owed no arrears. 4 The amended-final judgment, rendered in 2017, corrects the disability benefits credit issue retrospectively to 2016, the date the trial court rendered the earlier final judgment, from which Father filed his earlier appeal. 2 disability benefits David was receiving because of his father’s disability); see also
Tex. Fam. Code Ann. § 154.132 (West 2014) (requiring that trial courts reduce a
parent’s child-support obligation by the disability payments the child is receiving
because of a parent’s disability).
We conclude the Family Code does not permit the modification of temporary
child-support awards to make the changes in support retroactive to a date predating
the date that a parent lodges a challenge to the amount the parent must pay under a
temporary order. See Tex. Fam. Code Ann. § 156.401(b) (West Supp. 2017)
(authorizing partial retroactivity on changes trial courts make to child-support
awards in temporary orders). Thus, we hold the trial court did not err in refusing
Father’s request to declare that he was not in arrears.
Background
Mother and Father divorced in 2007 when their child, David, was nine years
old. About six years later, Mother sued Father seeking to modify the decree the trial
court rendered following Mother’s and Father’s divorce. In her suit, Mother asked
the court to modify the decree by naming her as the parent with the right to designate
David’s primary residence.
After Mother sued to modify the decree, the trial court issued a temporary
child-support order dated December 2013. The December 2013 temporary order
3 gave Mother the exclusive right to determine David’s residence. Additionally, the
trial court’s December 2013 temporary order required that Father pay Mother
temporary child support. The record does not show that when the trial court signed
the December 2013 temporary order that it knew the amount of social security
benefits that David was receiving due to his father’s disability. 5 Moreover, Father
did not challenge the child-support award that is in the December 2013 order by
filing a petition for a writ of mandamus.
One of the issues in Mother’s suit to modify the decree—whether Mother
should have the exclusive right to designate David’s primary residence—was
determined in a jury trial. During the jury phase of the trial, which occurred in 2015,
the attorneys for David’s parents revealed that David was receiving disability
benefits because his father is disabled. See In re D.S.H., 2017 Tex. App. LEXIS
3525, at *9. A few months later, the parties tried all remaining issues in Mother’s
suit to modify to the bench. In rendering a final judgment, the trial court failed to
5 The temporary order contains separate awards for temporary child support and for medical support. We take judicial notice of the record from Father’s prior appeal challenging the final judgment the trial court rendered in the suit to modify the decree. In re D.S.H., No. 09-16-00109-CV, 2017 Tex. App. LEXIS 3525 (Tex. App.—Beaumont 2017, no pet.) (mem. op.). “A court of appeals has the power to take judicial notice for the first time on appeal.” Office of Pub. Util. Counsel v. Pub. Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994).
4 adjust Father’s prospective child-support obligation to account for the disability
payments David was receiving because of his father’s disability. Id. at *11.
Father appealed from the final judgment, complaining in part that the trial
court erred by failing to recalculate Father’s support obligation based on the
disability payments David was receiving because his father is disabled. See id. at
*16. After considering Father’s arguments in that appeal, we reversed the judgment
and remanded the case to the trial court, and we directed the trial court to adjust
Father’s support obligation to account for the value of the disability benefits David
was receiving due to his father’s disability. Id. at *18; see also Tex. Fam. Code Ann.
§ 154.132.
After we remanded the case for further proceedings, the trial court adjusted
Father’s support obligation prospectively, beginning from the date that it rendered
the final judgment. The trial court, however, refused Father’s request to make the
adjustment in his support obligation retroactive to the December 2013 temporary
order. As it stands, someone might seek to enforce a claim for unpaid support that
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In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-17-00426-CV ___________________
IN THE INTEREST OF D.S.H.
__________________________________________________________________
On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 09-10-09572-CV __________________________________________________________________
MEMORANDUM OPINION ON REHEARING EN BANC 1
In this appeal, D.S.H.’s Father2 filed an appeal from the trial court’s amended-
final judgment, rendered in 2017, refusing his request asking the trial court to
1 We issued our original Memorandum Opinion in this case on August 30, 2018. Appellant filed a motion for rehearing en banc, which we granted. We correct the opinion upon that rehearing, but the disposition remains the same. See In re D.S.H., No. 09-17-00426-CV, 2018 Tex. App. LEXIS 7128 (Tex. App.—Beaumont Aug. 30, 2018, no pet. h.) (mem. op.); see also Tex. R. App. P. 49.3. 2 To protect the identity of the individuals who are the interested parties to the judgment being appealed, we identify the child by using a pseudonym, David, and we identify David’s parents based on their familial relationship to him. See Tex. R. App. P. 9.8(a), (b). 1 retroactively modify a temporary child-support order rendered in December 2013.3
According to Father, the trial court failed to properly calculate the support amounts
awarded in the December 2013 temporary order. Father contends the error occurred
when the trial court calculated the amounts Father had to pay in support because the
court failed to adjust his child-support obligation by reducing it to account for the
disability benefits David was receiving because of his father’s disability. Father
concludes that the trial court should have corrected the problem created in the
temporary order when the court calculated his support obligation without giving him
the benefit of the disability credit. Father also argues that the trial court’s refusal to
declare that he was not in arrears when rendering the amended-final judgment
violated the mandate this Court issued in Father’s prior appeal. 4 See In re D.S.H.,
No. 09-16-00109-CV, 2017 Tex. App. LEXIS 3525, at *16-18 (Tex. App.—
Beaumont 2017, no pet.) (mem. op.) (requiring the trial court, on remand, to
recalculate Father’s support obligation under the final judgment to account for the
3 Father did not challenge the December 2013 temporary order by filing a petition seeking a writ of mandamus. Instead, he appeals from the amended-final judgment, rendered in September 2017, which reveals that the trial court implicitly rejected Father’s argument suggesting that the amended-final judgment should include language stating that he owed no arrears. 4 The amended-final judgment, rendered in 2017, corrects the disability benefits credit issue retrospectively to 2016, the date the trial court rendered the earlier final judgment, from which Father filed his earlier appeal. 2 disability benefits David was receiving because of his father’s disability); see also
Tex. Fam. Code Ann. § 154.132 (West 2014) (requiring that trial courts reduce a
parent’s child-support obligation by the disability payments the child is receiving
because of a parent’s disability).
We conclude the Family Code does not permit the modification of temporary
child-support awards to make the changes in support retroactive to a date predating
the date that a parent lodges a challenge to the amount the parent must pay under a
temporary order. See Tex. Fam. Code Ann. § 156.401(b) (West Supp. 2017)
(authorizing partial retroactivity on changes trial courts make to child-support
awards in temporary orders). Thus, we hold the trial court did not err in refusing
Father’s request to declare that he was not in arrears.
Background
Mother and Father divorced in 2007 when their child, David, was nine years
old. About six years later, Mother sued Father seeking to modify the decree the trial
court rendered following Mother’s and Father’s divorce. In her suit, Mother asked
the court to modify the decree by naming her as the parent with the right to designate
David’s primary residence.
After Mother sued to modify the decree, the trial court issued a temporary
child-support order dated December 2013. The December 2013 temporary order
3 gave Mother the exclusive right to determine David’s residence. Additionally, the
trial court’s December 2013 temporary order required that Father pay Mother
temporary child support. The record does not show that when the trial court signed
the December 2013 temporary order that it knew the amount of social security
benefits that David was receiving due to his father’s disability. 5 Moreover, Father
did not challenge the child-support award that is in the December 2013 order by
filing a petition for a writ of mandamus.
One of the issues in Mother’s suit to modify the decree—whether Mother
should have the exclusive right to designate David’s primary residence—was
determined in a jury trial. During the jury phase of the trial, which occurred in 2015,
the attorneys for David’s parents revealed that David was receiving disability
benefits because his father is disabled. See In re D.S.H., 2017 Tex. App. LEXIS
3525, at *9. A few months later, the parties tried all remaining issues in Mother’s
suit to modify to the bench. In rendering a final judgment, the trial court failed to
5 The temporary order contains separate awards for temporary child support and for medical support. We take judicial notice of the record from Father’s prior appeal challenging the final judgment the trial court rendered in the suit to modify the decree. In re D.S.H., No. 09-16-00109-CV, 2017 Tex. App. LEXIS 3525 (Tex. App.—Beaumont 2017, no pet.) (mem. op.). “A court of appeals has the power to take judicial notice for the first time on appeal.” Office of Pub. Util. Counsel v. Pub. Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994).
4 adjust Father’s prospective child-support obligation to account for the disability
payments David was receiving because of his father’s disability. Id. at *11.
Father appealed from the final judgment, complaining in part that the trial
court erred by failing to recalculate Father’s support obligation based on the
disability payments David was receiving because his father is disabled. See id. at
*16. After considering Father’s arguments in that appeal, we reversed the judgment
and remanded the case to the trial court, and we directed the trial court to adjust
Father’s support obligation to account for the value of the disability benefits David
was receiving due to his father’s disability. Id. at *18; see also Tex. Fam. Code Ann.
§ 154.132.
After we remanded the case for further proceedings, the trial court adjusted
Father’s support obligation prospectively, beginning from the date that it rendered
the final judgment. The trial court, however, refused Father’s request to make the
adjustment in his support obligation retroactive to the December 2013 temporary
order. As it stands, someone might seek to enforce a claim for unpaid support that
accrued between the date the trial court signed the temporary order and the date the
trial court signed the final judgment. Thus, the adjustment the trial court allowed to
Father’s child-support obligation on remand was retrospective to February 1, 2016,
5 which is the date the trial court rendered the final judgment from which Father
appealed.6
In this appeal, Father argues the trial court erred by failing to make the
disability credit retrospective to the December 2013 temporary order. In part, Father
argues that the final-amended judgment violates the mandate the Court issued with
Father’s previous appeal. See In re D.S.H., 2017 Tex. App. LEXIS 3525, at *18. We
note our jurisdiction over the parties and over the appeal. Tex. Fam. Code Ann. §
109.002(b) (West Supp. 2017).
Analysis
Essentially, Father challenges the trial court’s refusal to make the amended-
final judgment operate retroactively on the obligation created by the temporary
order. Under Texas law, trial courts may issue temporary orders in modification
actions that modify certain aspects of decrees, such as an award of child support. Id.
§ 156.006 (West Supp. 2017).
The Family Code, however, contains limitations on the extent to which a trial
court is authorized to retroactively modify a temporary order awarding support. Id.
§ 156.401(b). While changes in orders awarding support may be made partly
6 The amended-final judgment does not declare Father to be in arrears. Moreover, nothing in the record before us suggests that anyone has filed a claim seeking to enforce a claim for arrears. 6 retroactive, the Family Code generally prevents the changes from being fully
retroactive. See In re H.J.W., 302 S.W.3d 511, 513-14 (Tex. App.—Dallas 2009, no
pet.) (explaining that section 156.401(b) of the Family Code “generally prohibits the
retroactive modification of child support”).
Here, the record does not show that Father immediately challenged the
support obligation the trial court imposed on him under its December 2013
temporary order. For instance, while Father filed an answer and counter-petition to
Mother’s suit seeking to modify the terms of the decree, these pleadings do not
contain a claim challenging the amount of Father’s support obligation as determined
in the temporary order. For the first time, in December 2015, Father challenged the
amount of his monthly support obligation under the December 2013 temporary
order. See In re D.S.H., 2017 Tex. App. LEXIS 3525, at *3.
Father appealed from the final judgment the trial court rendered in the
modification suit, and he challenged the trial court’s failure to account for the
undisputed amounts David was receiving in disability benefits due to his father’s
disability. Id. at *1. In resolving the issues Father raised in that appeal, we required
the trial court to account for the disability payments, but we did not indicate how far
back the trial court should go when adjusting Father’s accrued obligation. Id. at *17-
18.
7 On remand, the trial court adjusted Father’s support obligation back to the
date that it issued the amended-final judgment, but it refused Father’s request to
adjust his support obligation retroactively to the date of the December 2013
temporary order. That said, the trial court’s decision on how far back to adjust
Father’s obligation is consistent with section 156.401(b) of the Family Code, which
prohibits trial courts from retroactively modifying temporary support orders to a date
that predates the day the parent opposing a support award notifies the other parties
to the suit that they are challenging the amount of a temporary award. See Tex. Fam.
Code Ann. § 156.401(b).
Conclusion
Simply put, the Family Code does not authorize the relief that Father
requested. Father’s request, had it been granted, would have required the trial court
to ignore the requirements of section 156.401(b). Id. For this reason, we overrule the
arguments Father raises in his brief, and we affirm the amended-final judgment.
AFFIRMED.
______________________________ HOLLIS HORTON Justice
Opinion Delivered September 27, 2018 Before McKeithen, C.J, Kreger, Horton, and Johnson, JJ. 8