in the Interest Of: J.C.T and L.D.T

Opinion

AFFIRM; Opinion Filed July 31, 2014.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01290-CV

IN THE INTEREST OF J.C.T AND L.D.T, CHILDREN

On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-82-17818

MEMORANDUM OPINION Before Justices O’Neill, Myers, and Brown Opinion by Justice Brown Linda May Pryor appeals the trial court’s orders terminating a writ of withholding for

past due child support issued against her ex-husband, Billy Coy Taylor, and terminating a notice

of levy to Taylor’s financial institutions. In three issues, Pryor challenges the trial court’s

jurisdiction over the case and its finding that Taylor had paid all child support due and owing.

We affirm.

Pryor and Taylor divorced in 1983. The divorce decree ordered Taylor to pay $300 per

month in child support for the couple’s two children, Jason and Leslie, ages three and eight

months, until both children reached the age of eighteen. Further, the payments were to be made

through the Dallas County Child Support Office.

In August 2011, more than eleven years after Taylor’s obligations ended, the Office of

the Attorney General issued an administrative writ of withholding directing Taylor’s employer to

withhold $1005 monthly from his wages for payment of a child support arrearage of $95,006, including interest. Taylor filed a motion to terminate the writ in the family court where the

divorce was rendered, asserting he had made all payments due under the decree and requesting

attorney’s fees. The AG’s office filed an answer. Thereafter, Pryor filed notices of child support

liens in two counties against Taylor and a notice of levy to Taylor’s financial institution. After

these filings, Taylor also sought to terminate the notice of levy.

A trial was held in April 2012 on Taylor’s motions to terminate the writ of withholding

and notice of levy. Taylor and Pryor were represented by counsel, and an assistant attorney

general also made an appearance. The AG’s record showed that Taylor ceased making payments

through the child support office at the end of 1989. Taylor explained he began paying Pryor

directly at that time so that Pryor would receive her money earlier in the month. Taylor said he

and Pryor got along at the time, and Pryor wanted the money on the first of the month. When

Taylor paid through the child support office as ordered under the decree, Pryor would not receive

her money for two to three weeks. Taylor said he made the payments by mail or in person, and

every payment was made. At times, his wife, Vickie, made the payments.

Taylor acknowledged there was a brief period, shortly after the divorce, when he stopped

making payments. In response, Pryor refused to let him see the children and took him back to

court, where he was ordered to pay the back child support and Pryor’s attorney’s fees. Taylor

said he learned his lesson from that experience and made all subsequent payments. Over the

next several years, he said Pryor never withheld the children from him, which he suggested was

further evidence that he made timely payments. In fact, he said he had custody of the children at

various times and still paid child support to Pryor. When he made his final payment in June

2000, he said he wrote “last one” on the memo portion of the check and showed Vickie and his

stepson, Cody. He celebrated the next day by purchasing a motorcycle. Taylor said he kept

–2– copies of his canceled checks until July 2010, when he moved into a new home and destroyed his

old records.

In August 2011, he learned from his employer that a writ of withholding had issued for

past due child support. Taylor contacted the AG’s office and talked with a representative. He

told the representative that he had made all the child support payments but could not provide

documentary proof. He explained that he kept his canceled checks and other proof of payment

when he was under the court order, but he destroyed the records after ten or twelve years and no

longer had them. Two weeks after the writ issued, he filed his motion to terminate the writ in

district court.

Taylor’s wife Vickie, stepson Cody Frazier, and son Jason Taylor all testified on his

behalf. Vickie testified she had “no doubts” that every single child support payment was made.

She said either she or her husband made the payments. From 1989 to 1993, she said Taylor was

traveling worldwide and would be gone for two to three months at a time. During that period,

she wrote the checks directly to Pryor and sometimes paid her in person. Vickie said they agreed

to pay Pryor directly and not through the child support office. Pryor never complained that she

was not receiving child support nor did she ever prevent the children from visiting with them.

Cody testified he remembered two or three occasions, during 1990 to 1996, when Pryor came to

the house and he handed her the check. There were other times, he said, when his parents

delivered the check to Pryor when they were picking up the children for visitation. Both Vickie

and Cody remembered seeing the final child support check and Taylor’s notation on it. Jason

testified he remembered going with his mother to pick up child support payments from his father.

In contrast to the above testimony, Pryor testified Taylor had not made all of the child

support payments. She said that of the payments shown missing on the AG’s report, Taylor had

made only a handful of either full or partial payments. She said she had not complained over the

–3– past twenty-plus years (from the initial date Taylor allegedly stopped making payments) because

she does not complain “about a lot of anything.” She also said she could not afford an attorney.

According to Pryor, the AG’s office contacted her in April 2011 after she filled out an

application on a website about “who owes you money or you’re owed money in the State of

Texas.” She did not remember the name of the website. She said the AG representative asked if

she knew she was entitled to back child support, and she said yes. The AG representative said

“we will take care of it.”

After hearing the evidence, the trial court found, based on the credible evidence, that

Taylor had made all of his child support payments. The trial court granted Taylor’s motions to

terminate the writ of withholding and to terminate the notice of levy to financial institutions.

This appeal ensued.

We begin with Pryor’s second issue in which she contends the trial court did not have

jurisdiction over the motion to terminate the writ of withholding because Taylor did not first

exhaust his administrative remedies under section 158.506 of the Texas Family Code. 1

Section 158.506 addresses contests by an obligor of an administrative writ of

withholding. It provides that an obligor who receives notice of the writ “may request a review

by the Title IV-D agency to resolve any issue in dispute regarding the identity of the obligor or

the existence or amount of arrearages.” TEX. FAM. CODE ANN. § 158.506(a) (West 2014). The

office of the attorney general is designated as the state’s Title IV-D agency. Id. § 231.001 (West

2014). The AG shall provide an opportunity for a review, by telephonic conference or in person,

“as may be appropriate under the circumstances.” Id. § 158.506(a). After a review, the AG may

issue a new administrative writ of withholding to the employer, including a writ modifying the

1 We received an amicus curiae brief from the AG’s office in which the AG also argued that (1) section 158.506 required Taylor to exhaust his administrative remedies before seeking relief from the court and (2) Taylor failed to do so.

–4– amount to be withheld or terminating the withholding. See id. § 158.506(b). If a review under

section 158.506 fails to resolve any issue in dispute, “the obligor may file a motion with the

court to withdraw the administrative writ of withholding and request a hearing” not later than the

30th day after receiving notice of the AG’s determination. Id. § 158.506(c).

We need not address Pryor’s argument that section 158.506 provides an “administrative

remedy” that must be exhausted before an obligor can resort to a court, or whether this section

provides the exclusive method for challenging an administrative writ of withholding. Assuming

without deciding that Pryor is correct, we conclude Taylor did so.

The evidence shows that after Taylor’s employer notified him of the writ, Taylor met

with the AG representative by telephone. See id. § 158.506(a). He told the representative that he

had made all payments and further explained that he had no documentary proof because he got

rid of the records ten or twelve years after his obligation ended. The AG did not modify the

amount of the writ or withdraw it, and Taylor filed his motion within two weeks of meeting with

the AG. We conclude this evidence showed that Taylor substantially complied with section

158.506. 2

In reaching this conclusion, we are persuaded by our sister court’s opinion under similar

circumstances. See In re A.C.B., 103 S.W.3d 570, 574 (Tex. App.—San Antonio 2003, no pet.).

There, the evidence showed the obligor met in person with the AG’s representative and

presented hand-written receipts signed by his former wife to prove he made payments. Id. at

573. The AG representative told the obligor that “only a judge could say that [the receipts] were

valid.” Id. The court concluded the obligor substantially complied with section 158.506. Id. at

574. We overrule Pryor’s second issue.

2 To the extent there are gaps in the evidence regarding the full meeting between the AG’s representative and Taylor, the AG’s office must shoulder some of the blame. On cross-examination by Pryor’s counsel, when Taylor attempted to describe what he had been told by the AG’s representative, the assistant AG objected on hearsay and attorney-client privilege grounds and the matter was not further developed.

–5– In her first issue, Pryor argues the evidence is legally and factually insufficient to support

the trial court’s finding that Taylor paid all child support due and owing under the parties’

divorce decree.

Most appealable issues in a family law case are evaluated under an abuse of discretion

standard. In re C.G., 261 S.W.3d 842, 848 (Tex. App.—Dallas 2008, no pet.). We reverse a trial

court’s judgment only when it appears from the record as a whole that the trial court abused its

discretion. Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.—Dallas 2005, no pet.). The trial

court does not abuse its discretion if there is some evidence of a substantive and probative

character to support the decision. In re C.G., 261 S.W.3d at 848. In family law cases, the abuse

of discretion standard overlaps with the traditional sufficiency standards of review; as a result,

legal and factual sufficiency are not independent grounds of error but are relevant factors in

assessing whether the trial court abused its discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex.

App.—Dallas 2009, no pet.). To determine whether the trial court abused its discretion because

the evidence is insufficient to support its decision, we consider whether the trial court (1) had

sufficient evidence upon which to exercise its discretion and (2) erred in the exercise of that

discretion. Id. We conduct the applicable sufficiency review with regard to the first question.

Id. In a nonjury trial, the trial court is the sole judge of the credibility of the witnesses and the

weight to be given their testimony. Beck, 154 S.W.3d at 901.

Pryor argues the trial court’s finding that Taylor made all payments was not supported by

the record. For the most part, she relies on her testimony and the AG’s record showing payments

to the child support office ceased in 1989 as well as Taylor’s inability to provide any

documentary proof that he made the payments. However, Taylor testified he made all the

payments directly to Pryor so that she would have the money earlier because the child support

office took two to three weeks to process the checks. He testified he remembered the last

–6– payment made, making a notation on the check, and showing it to his wife and stepson. Taylor

also explained that he kept documentary proof for ten or twelve years after his obligation ended,

but destroyed the records when he moved into a new home in July 2010. Taylor’s wife, stepson,

and son corroborated Taylor’s testimony that he made at least some direct payments to Pryor and

remembered him making the last payment. Moreover, Taylor testified he had learned his lesson

about nonpayment in a contempt proceeding shortly after the divorce in 1983. As a result of that

proceeding, he paid the back child support as well as Pryor’s attorney’s fees.

Pryor testified she did not complain about the nonpayment of child support for twenty-

two years because she could not afford an attorney, although evidence suggested she would have

been aware that her attorney’s fees would be paid if she showed nonpayment. In fact, the

evidence showed that Pryor knew how to seek relief from the courts if she was not receiving her

court-ordered child support. She brought this action after filling out an application online

through a website that checks to see if a person is owed money from any source and then

receiving a call from the AG’s office. And while she denied receiving all payments, she did

acknowledge that Taylor made at least some direct payments to her. The trial court was the

judge of the witnesses’ credibility and apparently believed Taylor and his witnesses. Having

considered the evidence, we conclude there was sufficient evidence for the trial court to exercise

its discretion on the issue of Taylor’s payments and the court did not err in determining Taylor

had made the payments. We overrule Pryor’s first issue.

In her third issue, Pryor contends that even if the evidence supports an implied finding

that there was an agreement for Taylor to pay Pryor directly and Taylor made the payments, such

an agreement is unenforceable as a matter of public policy. As support, she relies on Williams v.

Patton, 821 S.W.2d 141, 143–44 (Tex. 1991), and Chenault v. Banks, 296 S.W.3d 186 (Tex.

App.—Houston [14th Dist.] 2009, no pet). Both cases are distinguishable.

–7– In Williams, the court concluded that parents could not settle a claim for child support

arrearages for less than what was owed. 821 S.W.2d at 141–42. In Chenault, the court

determined the trial court abused its discretion to the extent it gave a child support credit for the

amount father paid for the child’s private school tuition. 296 S.W.3d at 190. Here, the parties

did not settle a claim for child support arrearage nor did the trial court give child support credit

for an amount paid for another expense. Rather, the trial court found that Taylor had made all

child support payments due under the divorce decree. A trial court may consider evidence of

direct payments from the obligor to the obligee even when the divorce decree provides for the

obligor to make payments through the court’s registry. In re C.S., No. 11-12-00294-CV, 2014

WL 972310, at *4 (Tex. App.—Eastland Mar. 6, 2014, no pet.) (mem. op.). Public policy does

not require Taylor to duplicate those payments. We overrule Pryor’s third issue.

We affirm the trial court’s June 21, 2012 orders granting Motion to Terminate Notice of

Levy to Financial Institutions and Motion to Terminate Writ of Withholding.

/Ada Brown/ ADA BROWN JUSTICE

121290F.P05

–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF J.C.T AND L.D.T, On Appeal from the 256th Judicial District CHILDREN Court, Dallas County, Texas Trial Court Cause No. DF-82-17818. No. 05-12-01290-CV V. Opinion delivered by Justice Brown. Justices O’Neill and Myers participating.

In accordance with this Court’s opinion of this date, the trial court’s June 21, 2012 orders granting Motion to Terminate Notice of Levy to Financial Institutions and granting Motion to Terminate Writ of Withholding are AFFIRMED.

It is ORDERED that appellee Billy Coy Taylor recover his costs of this appeal from appellant Linda May Pryor.

Judgment entered this 31st day of July, 2014.

–9–