in the Interest of H.G.L. and A.R.L.

• Court: Court of Appeals of Texas
• Decided: November 17, 2009
• Docket: 14-08-00087-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed November 17, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00087-CV

IN THE INTEREST OF H.G.L. AND A.R.L., MINOR CHILDREN

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No. 1989-52825

M E M O R A N D U M  O P I N I O N

Appellant, Eric L., as a child-support obligor, appeals the trial court=s judgment denying his motion to confirm child-support arrearages and for declaratory judgment.  In two issues, he contends that the trial court erred by (1) denying his request for additional findings of fact and conclusions of law relating to his affirmative claim of estoppel and (2) denying his motion to confirm child-support arrearages when there was uncontroverted evidence establishing his right to relief as a matter of law under the theory of estoppel.  Concluding that the trial court=s refusal to adopt additional or amended findings of fact and conclusions of law has not prevented Eric from adequately presenting the matter of which he complains and that the trial court did not abuse its discretion in denying Eric=s motion to confirm child-support arrearages, we affirm.^[1]

I

Eric and Sherry married on June 3, 1978.  During their marriage, they had two daughters, H.G.L., born December 10, 1979, and A.R.L., born March 21, 1981.

On February 23, 1990, Eric and Sherry divorced.  In the decree of divorce, the court appointed Sherry as managing conservator of the children and Eric as possessory conservator.  The court also ordered Eric to pay child support to Sherry in the amount of $450 per month until the children reached the age of eighteen, thereafter as long as either was fully enrolled in an accredited primary or secondary school or a program leading to a high-school diploma, until the end of the school year in which the child graduated, or until both children were otherwise emancipated.  At the time of divorce, H.G.L. and A.R.L. were ten- and eight-years old, respectively.

Sherry married James Ray Eledge on June 16, 1990.  Eric and Sherry subsequently appeared before the family court in a number of proceedings related to visitation and child support.

Near the end of 1993, H.G.L. and A.R.L. informed Eric that they no longer wanted to visit him even though his visitation rights were still enforceable.  Soon afterwards, Sherry presented Eric with an affidavit of relinquishment of parental rights (Athe affidavit@).

On March 4, 1994, after consulting an attorney, Eric signed the affidavit and returned it to Sherry.  In the affidavit, Eric acknowledged that (1) a lawsuit had been filed to terminate his parent-child relationship with H.G.L. and A.R.L. and (2) Eledge was seeking to adopt the children.  Eric further acknowledged that the affidavit was irrevocable for sixty days and, after the sixty-day period, the affidavit would remain enforceable until Eric revoked it.  Finally, Eric waived his right to be notified of any proceedings or judgments in relation to the suit affecting the parent-child relationship.  Eric never revoked the affidavit and had no contact with the children until H.G.L. called him in 2005, when she was almost twenty-six-years old.

After 1994, Eric had no contact with Sherry or the attorney appointed to represent the children in the termination proceeding.  No further action was taken in relation to the affidavit, and on April 20, 1995, the family court dismissed the termination action for want of prosecution.  Eric was never informed his children had not been adopted.

According to Eric, he was current on his child-support payments as of March 4, 1994.^[2]  After signing the affidavit, Eric stopped making child-support payments.  The decree of divorce, specifically Eric=s child-support order, was never modified or vacated.  Until March 2007, no one contacted Eric about his failure to make the required child-support payments.  In March 2007, however, Child Support Network, a private child-support collection agency, contacted Eric seeking collection of unpaid child support owed and payable to Sherry.  In April 2007, Eric received notice of liens placed on his house and vehicle for failure to pay child support, the alleged unpaid balance being $89,718.57.

Three months later, Eric filed a Motion to Confirm Child Support Arrearage and for Declaratory Judgment, requesting, among other relief, that the court declare (1) Sherry was estopped from asserting any claim for unpaid or past due child support, (2) any liens Sherry or her agent asserted or filed to collect child support after March 4, 1994, were void and of no effect, (3) any child-support payment obligation of Eric to Sherry ended on March 4, 1994, and (4) the amount of any present and unpaid child-support obligation owed to Sherry was zero.^[3]  The associate judge heard and denied the motion.  Although properly served with notice of the motion, Sherry defaulted.^[4]  Eric appealed the judgment to the presiding judge, who then held a de novo hearing.  Sherry again did not appear, and the court again denied Eric=s motion.

Eric requested findings of facts and conclusions of law.  The trial court made seven findings of fact and the following three conclusions of law:  (1) A[t]he child support obligation created by the Decree of Divorce cannot be extinguished merely by the execution of an Affidavit of Relinquishment of Parental Rights by the person who owes the child support@; (2) A[t]here has been no other act by this Court of continuing jurisdiction or by any other court that extinguished or in any way modified the existing child support obligation of [Eric L.]@; and (3) A[t]here is no evidence or basis upon which this court should find that the child support obligation no longer exists.@

Subsequently, Eric requested additional and amended findings of fact and conclusions of law, some of which the court adopted, but many of which it rejected.  This appeal followed.

II

On appeal, Eric challenges the trial court=s denial of his request for additional findings of fact and conclusions of law reflecting his claim of estoppel.  He also argues that the trial court erred by denying his motion to confirm child-support arrearage.

A

In his first issue, Eric complains of the trial court=s refusal to adopt additional findings of fact and conclusions of law.  The trial court originally filed seven findings of fact as well as the three conclusions of law set forth in Section I, above.  Eric then timely requested thirteen additional findings of fact, three of which the trial court adopted.^[5]  He requested fifteen additional conclusions of law, one of which (regarding joinder of actions in an enforcement proceeding under the Family Code), the trial court adopted.

The rejected additional findings of fact concern Sherry=s and Eric=s actions and inactions in response to the affidavit, e.g., Sherry=s failure to notify Eric that the termination proceedings had been dismissed and Eric=s cessation of child-support payments after March 4, 1994.  The rejected additional conclusions of law concern whether a child-support obligor may affirmatively seek an order confirming arrearages and may assert an affirmative claim of estoppel against the obligee.  In his brief to this court, Eric states that he sought the additional findings of fact establishing the basis of his estoppel claim in the light of the undisputed evidence Ain an effort to avoid the necessity of a remand if successful on appeal.@  He sought the additional conclusions of law Ain hopes of narrowing the trial court=s basis for denying relief.@

After the court files original findings of fact and conclusions of law, a party may request specified additional or amended findings or conclusions.  Tex. R. Civ. P. 298.  The court must then file any additional or amended findings or conclusions that are appropriate.  Id.; see Hunter v. NCNB Tex. Nat=l Bank, 857 S.W.2d 722, 727 (Tex. App.CHouston [14th Dist.] 1993, writ denied).

The trial court, however, is not required to make additional findings and conclusions that relate merely to evidentiary matters or that are aimed at tying down the court=s reasoning rather than its conclusions.  Stuckey Diamonds, Inc. v. Harris County Appraisal Dist., 93 S.W.3d 212, 213 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  Additionally, if the record shows the complaining party did not suffer injury from the court=s refusal to file additional or amended findings of fact or conclusions of law, reversal is not required. Johnson v. McKinney Am., Inc., 9 S.W.3d 271, 277 (Tex. App.CHouston [14th Dist.] 1999, pet. denied).  Injury is established when the refusal prevents adequate presentation of the matter being complained of on appeal.  Id.  Particularly when requested findings cover uncontested facts, there is no injury to the movant when the court denies such requests.  See Boudreaux Civic Ass=n v. Cox, 882 S.W.2d 543, 550 (Tex. App.CHouston [1st Dist.] 1994, no writ).

Sherry did not present evidence or appear.  The facts are therefore uncontested.  See id.  In his second issue, Eric presents the merits of his estoppel claim.  Thus, the trial court=s refusal to adopt additional or amended findings of fact and conclusions of law has not prevented Eric from adequately presenting the matter of which he complains and does not warrant reversal.  See Johnson, 9 S.W.3d at 277.  Accordingly, we overrule Eric=s first issue.

B

In his second issue, Eric contends that the trial court erred in denying his motion to confirm child-support arrearage given uncontroverted evidence supporting Ahis claim of estoppel excusing any unpaid amounts.@^[6]  We apply an abuse-of-discretion standard in reviewing a trial court=s decision to grant or deny the relief requested in a motion for enforcement.  Chenault v. Banks, ___ S.W.3d ___, No. 14-07-01094-CV, 2009 WL 2568284, at *1 (Tex. App.CHouston [14th Dist] Aug. 20, 2009, no pet.); see Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (AA court=s order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion.@).  The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles, i.e., whether the act was arbitrary or unreasonable.  Worford, 801 S.W.2d at 109.  Under the abuse-of-discretion standard, sufficiency of the evidence is not an independent ground of error, but is a relevant factor in assessing whether the trial court abused its discretion.  Chenault, 2009 WL 2568284, at *1.

Eric relies primarily on Family Code section 157.263(a) and two cases from Texas intermediate courts of appeal.  See Tex. Fam. Code Ann. ' 157.263(a) (Vernon 2008);  Kawazoe v. Davila, 849 S.W.2d 906, 908B09 (Tex. App.CSan Antonio 1993, no writ); LaRue v. LaRue, 832 S.W.2d 387, 391 (Tex. App.CTyler 1992, no writ).  He relies on the statute to argue the trial court had a mandatory duty to confirm a specific amount of child-support arrearages (here, zero), rather than simply to deny his motion to confirm arrearages.  He relies on Kawazoe and LaRue to argue that the doctrine of estoppel excuses his payment of the arrearages and forecloses Sherry=s right to collect them.

Section 157.263(a) provides: AIf a motion for enforcement of child support requests a money judgment for arrearages, the court shall confirm the amount of arrearages and render one cumulative money judgment.@  Tex. Fam. Code Ann. ' 157.263(a) (emphasis added).^[7]  Eric apparently invokes this section, rather than other Family Code sections, because of its mandatory language.  He argues that, once he brought his motion under section 157.263, the trial court Ahad a mandatory obligation to determine the amount of unpaid child support, and thereafter should have considered [his] claims which excused his non-payment as provided by Texas case law and the uncontroverted evidence he offered in support of those claims.@  See In re Gonzalez, 981 S.W.2d 313, 314, 315 (Tex. App.CSan Antonio 1998, pet. denied) (ABecause the language of section 157.263 is mandatory, the trial court erred by dismissing Gonzalez=s motion for confirmation of arrearages.@).

We question first whether section 157.263 authorizes Eric=s action.  The statute is silent regarding who may institute an action under section 157.263.  Eric argues that, even though he was a child-support obligor (and thus was not seeking Aenforcement@ of the child-support order in his case), he was entitled to Ainitiate suit@ under section 157.263.^[8]

The predecessor to section 157.263 provided:  AOn the motion of an obligee or obligor . . .  the court shall confirm the amount of child support in arrears and shall render one cumulative judgment against the obligor for all child support unpaid and owing . . . .@  Act of May 28, 1993, 73rd Leg., R.S., ch. 798, ' 14, 1993 Tex. Gen. Laws 3169, 3174 (repealed and reenacted 1995) (current version at Tex. Fam. Code Ann. ' 157.263(a)).  Thus, the predecessor section specifically acknowledged the possibility of an obligor=s motion, even though an obligor would rarely, if ever, be seeking to enforce payment of child support.  The legislature indicated it did not intend a substantive change when it recodified this section in 1995.  See House Comm. On Juvenile Justice & Family Issues, Bill Analysis, Tex. H.B. 655, 74th Leg., R.S. (1995) (AThe intent of this bill is a nonsubstantive recodification of the statutes relating to parents and children and suits affecting the parent-child relationship.  This recodification does not make changes in the meaning or intent of present law.@); Senate Comm. On Jurisprudence, Bill Analysis, Tex. C.S.H.B. 433, 74th Leg., R.S. (1995) (not listing section 157.263 among substantive changes to H.B. 655); see also Jones v. Fowler, 969 S.W.2d 429, 431B32 (Tex. 1998) (referring to H.B. 655, which was not intended to create substantive changes, and H.B. 433, which was, and observing that the Family Code section the Jones court was construing was not among those listed in H.B. 433).

Despite containing no reference regarding who may bring an action, section 157.263(a) does specifically and unambiguously refer to Aa motion for enforcement@ and a Arequest[]@ for Aa monetary judgment.@  Tex. Fam. Code Ann. ' 157.263(a).  Given this direct, specific, and unambiguous language, we must disregard legislative history indicating no substantive changes were intended.  See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex. 1999).^[9]  Eric=s motion was not one for enforcement and Eric was not requesting a monetary judgment.  His motion did not seek the type of relief contemplated under section 157.263.

Additionally, even if Eric could bring an action under section 157.263(a) and even if that section imposes a mandatory duty on the trial court to reduce child-support arrearages to judgment, section 157.263(a), as limited by section 157.262, does not give the trial court the discretion to reduce the amount of arrearages to zero, as Eric was requesting.  Section 157.262, provides in part:

(a) Except as provided by this section, in a contempt proceeding or in rendering a money judgment, the court may not reduce or modify the amount of child support arrearages

. . . .

(e) On the expiration of the child support order, the court may, with the agreement of the Title IV‑D agency, reduce the amount of the arrearages assigned to the Title IV‑D agency under Section 231.104(a) if the court finds that the obligor has complied with the conditions set by the court under this section.

(f) The money judgment for arrearages rendered by the court may be subject to a counterclaim or offset as provided by this subchapter.

Act of May 15, 2001, 77th Leg. R.S., ch. 392, ' 3, 2001 Tex. Gen. Laws 719, 720 (amended 2009) (current version at Tex. Fam. Code Ann. ' 157.262(a), (e), (f). (Vernon Supp. 2009)).^[10]

The evidence relating to the amount of arrearages established that: (1) under the final divorce decree, Eric was required to pay child support of $450 per month, commencing March 1, 1990; (2) at least as of March 4, 1994, Eric stopped paying child support; and, (3) as of April 2007, he had received notice of liens on his car and house for unpaid child support in the amount of $89,718.57 plus interest.^[11]  Eric, however, was seeking to confirm arrearages of zero.  As this court recently explained:

In calculating child support arrearages, the trial court=s discretion is very limited.  Family Code section 157.262 states that a trial court Amay not reduce or modify the amount of child support arrearages@ except as specifically provided in the Family Code.  Tex. Fam. Code Ann. ' 157.262(a) (Vernon 2008).  The trial court Aacts as a mere scrivener in mechanically tallying up the amount of arrearage.@  Although the trial court can award certain offsets and credits, the trial court has no discretion to forgive or decrease a past child support obligation. See Tex. Fam. Code Ann. ' 157.262(a).  Thus, in a proceeding to confirm child support arrearages, the trial court=s child support calculations must be based on the payment evidence presented, not the trial court=s assessment of what is fair or reasonable.  As with child support arrearages, the trial court also has no discretion to modify, forgive, or make equitable adjustments in awarding interest on child support arrearages.

Chenault, 2009 WL 2568284, at *2 (emphasis added) (case citations omitted).

Under the facts of this case, the exceptions mentioned in section 157.262 do not apply. See Act of May 15, 2001, 77th Leg. R.S., ch. 392, ' 3, 2001 Tex. Gen. Laws 719, 720 (amended 2009).  Therefore, under Chenault, the trial court=s discretion under section 157.263(a) was limited, and the trial court had no discretion to modify, forgive, or make equitable adjustments in confirming the amount of child support arrearages under section 157.263.  See Chenault, 2009 WL 2568284, at *2.

Eric relies on LaRue and Kawazoe.  See Kawazoe, 849 S.W.2d at 908B10; LaRue, 832 S.W.2d at 391B94.  To the extent that these cases apply estoppel principles to requests for relief other than confirmation of arrearages, they are not on point.  To the extent that these cases apply estoppel principles to the confirmation of arrearages, they are from sister courts of appeals and conflict with this court=s precedent in Chenault, and this court must follow Chenault.  See Clear Lake City Water Auth. v. Friendswood Dev. Co., No. 14-07-00404-CV, 2008 WL 5131932, at *1 (Tex. App.CHouston [14th Dist.] 2008, pet. filed) (mem. op.).

For the reasons stated above, we conclude that the trial court did not abuse its discretion when it denied Eric=s motion.^[12]  Accordingly, we overrule Eric=s second issue.

***

Having overruled Eric=s two issues, we affirm the trial court=s judgment.

/s/        Jeffrey V. Brown

Justice

Panel consists of Justices Frost, Brown, and Boyce.

---

^[1]  Although Eric captioned his motion as a AMotion to Confirm Child-Support Arrearages and for Declaratory Judgment,@ he subsequently abandoned any claim for relief under the Texas Declaratory Judgment Act.  On appeal, Eric refers to the motion as a motion to confirm child-support arrearages and we will do the same.

^[2]  The Payment History Report from the Harris County Child Support System showed Eric was current  through January 28, 1994.

^[3]  At the hearing on his motion, Eric abandoned his remaining requests for relief.

^[4]  On appeal, Eric represents that Sherry did not answer, and the appellate record does not contain an answer.  In its additional findings of fact, the trial court found A[Sherry] was duly and properly served with citation in connection with the Motion to Confirm Child Support Arrearages and for Declaratory Judgment as filed by [Eric] and wholly made default.@

^[5]  Eric also requested  amendment of a Afinding of fact or conclusion of law,@ to delete a statement in finding of fact number 6, that Ano suit for enforcement [was] pending.@

^[6]  Eric Areminds the Court that this case was tried on a default basis after Sherry was served with citation and failed to answer the suit or appear for trial.@  He then observes the trial court may render judgment on the pleadings against a defendant who has not filed an answer.  None of the cases he cites in support, however, are family-law cases.  See Tex. Fam. Code Ann. ' 6.701 (Vernon 2006) (AIn a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer.@); Agraz v. Carnley, 143 S.W.3d 547, 553 (Tex. App.CDallas 2004, no pet.) (applying policy considerations in section 6.701 to petition to modify child support and requiring petitioner to prove allegations in petition by preponderance of evidence).  Eric presented evidence in support of his motion, and we therefore need not decide whether the trial court should have rendered judgment on the unanswered motion.

^[7]  Subsection (b) provides that A[a] cumulative money judgment includes (1) unpaid child support not previously confirmed; (2) the balance owed on previously confirmed arrearages or lump sum or retroactive support judgments; (3) interest on the arrearages; and (4) a statement that it is a cumulative judgment.@ Tex. Fam. Code Ann. ' 157.263(b).

^[8]  Citing section 157.323 as an example, Eric observes that the AFamily Code recognizes at least one situation where a child support obligor may initiate suit under Chapter 157.@  Family Code section 157.323(a) provides:

In addition to any other remedy provided by law, an action to foreclose a child support lien, to dispute the amount of arrearages stated in the lien, or to resolve issues of ownership interest with respect to property subject to a child support lien may be brought in:

(1) the court in which the lien notice was filed under Section 157. 314(b)(1);

(2) the district court of the county in which the property is or was located and the lien was filed;  or

(3) the court of continuing jurisdiction.

Tex. Fam. Code Ann. ' 157.323(a) (Vernon 2008).

^[9]  For a discussion of the legislative response to Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d  at 286, see Arias v. Brookstone, L.P., 265 S.W.3d 459, 465 n.2 (Tex. App.CHouston [1st Dist.] 2007, pet. denied).

^[10]  The 2009 amendment substituted Atitle@ for Asubchapter.@  Act of May 28, 2009, 81st Leg., R.S., ch.767, ' 16, 2009 Tex. Sess. Law Serv. 1942 (Vernon).

^[11]  Family Code section 157.312(d) provides:

A child support lien arises by operation of law against real and personal property of an obligor for all amounts of child support due and owing, including any accrued interest, regardless of whether the amounts have been adjudicated or otherwise determined, subject to the requirements of this subchapter for perfection of the lien.

Tex. Fam. Code Ann. ' 157.312(d) (Vernon 2008).

^[12]  Eric has asked this court to analyze his motion as one brought under Family Code section 157.263(a). Therefore, this opinion addresses only the issues raised regarding such a motion.  This opinion does not address the potential availability of relief under any other part of the Texas Family Code or any other statute or recognized claim for relief.