in the Interest of L.K.K. and C.M.K., Children

• Court: Court of Appeals of Texas
• Decided: September 11, 2008
• Docket: 11-07-00106-CV
• Status: Published

Opinion

Opinion filed September 11, 2008

Opinion filed September 11, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-07-00106-CV

                  IN THE INTEREST OF L.K.K. and C.M.K., CHILDREN  

                                  On Appeal from the County Court at Law No. 3

                                                    Montgomery County, Texas

                                          Trial Court Cause No. 95-11-04634-CV

                                             M E M O R A N D U M   O P I N I O N

This appeal arises from a proceeding to modify child support.  The trial court entered an order raising appellant=s monthly child support payment amount from $366 to $1,288.41.  Appellant challenges the trial court=s order in four issues.  We affirm.

                                                               Background Facts

The final decree of divorce entered by the trial court on February 6, 1996, ordered appellant to pay $366 a month in child support.  The amount of appellant=s court-ordered monthly child support obligation remained at $366 until the trial court entered the order raising it to $1,288.41 on February 16, 2007.^[1]

On April 12, 2005, appellee filed her motion to increase the amount of appellant=s child support payments.  The trial court considered the motion at a hearing that occurred on November 8, 2006.  Appellant did not dispute that he should be paying child support in the amount of $1,288.41.  However, he sought a credit of $37,225.29 against his future child support payments.  In this regard, the evidence established that appellant had paid $37,225.29 in child support more than was required under the final decree of divorce.  Appellant testified that, as his earnings increased after the divorce, he voluntarily raised the amount of the child support that he paid appellee based upon his estimate of what he believed he owed.  The trial court denied appellant=s requested credit.

                                                                         Issues

In his first issue, appellant argues that the trial court erred in denying his requested credit of $37,225.29.  In his second issue, he contends that the trial court=s order constitutes an impermissible retroactive increase of child support.  In his third issue, appellant contends that the increased amount of child support set out in the trial court=s written order exceeds the modified amount of support orally pronounced by the trial court.   Appellant complains in his fourth issue that the judge who signed the written order increasing his child support payments did not have authority to do so.

                                             Findings of Fact and Conclusions of Law

As a preliminary matter, we will address an argument informally presented in appellant=s brief concerning the absence of findings of fact and conclusions of law.  It does not appear that the trial court filed findings even though appellant originally filed a request for them.  However, the record does not indicate that appellant filed a notice of past due findings of fact and conclusions of law in accordance with Tex. R. Civ. P. 297.  The failure to file a notice of past due findings of fact waives the right to complain about the trial court=s failure to file findings of fact and conclusions of law.  See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255 (Tex. 1984).

                                                  Credit for Voluntary Overpayments

The trial court=s rationale for denying appellant=s requested credit for the overpayments is reflected in the following exchange between the court and appellant:

THE COURT:  So what you=re saying is, you started out at one amount, as in the decree, 3 - whatever that was.

[APPELLANT]:  Right.

THE COURT: And you made more money so you paid more child support.

[APPELLANT]: Right.

THE COURT: And if somebody had come to Court, meaning probably hired attorneys and all that kind of stuff, both of you benefitted because neither one of you did that.

THE COURT: You just kept paying extra money, and here we are today, and for the amount that you were ordered to pay in _96 to now, it appears that you have a $37,000 credit.  But that=s not really the truth, because had increases been made as your salary increased, that would have gotten into the $37,000.

[APPELLANT]: It would have gotten some of it, but I don=t believe all of it.

THE COURT: Okay.  It seems to me that what we need to do is say you paid and you shouldn=t be penalized for paying more.  We should start this month at the amount that the Code says you=re supposed to pay.^[2]

[APPELLANT]: Yes.

THE COURT: That=s what we=re going to do.

Appellant contends that the trial court=s refusal to give him credit for the overpayments violates Tex. Fam. Code Ann. ' 154.012 (Vernon 2002), ' 154.014 (Vernon Supp. 2007).  We disagree.  Section 154.014 applies to excess payments made to child support agencies.  It provides that the agency is  required to apply the overpayment based upon the expressed intent of the obligor.  If the obligor does not express an intent, the statute requires the agency to apply the overpayment as a credit against the obligor=s future child support obligation.  Section 154.012 provides that an obligor may recover excess child support payments from the obligee after the child support obligation has ended.

 Based upon the evidence offered at trial, we conclude that Sections 154.014 and 154.012 are  inapplicable.  Appellant voluntarily increased the amount of his child support payments because his earnings increased.  Under these circumstances, appellant did not pay excess child support payments.^[3]  As noted by the trial court, appellant should have been paying more child support because his earnings increased.^[4]  Moreover, a parent may always voluntarily provide more support for a child than is required by court order. See Lewis v. Lewis, 853 S.W.2d 850, 854 (Tex. App.CHouston [14th Dist.] 1993, no writ); In re McLemore, 515 S.W.2d 356, 358 (Tex. Civ. App.CDallas 1974, no writ).  Appellant=s first issue is overruled.

                                                      No Retroactive Child Support

Tex. Fam. Code Ann. ' 156.401(b) (Vernon Supp. 2007) prohibits a court from retroactively increasing the amount of an obligor=s child support obligation.  Appellant contends that the trial court=s order Aeffectively@ violates this prohibition by denying his requested credit for the payments.  We disagree.  The trial court only increased the amount of appellant=s child support prospectively from the date of the hearing.  Additionally, the trial court did not order appellant to pay any additional sums for past child support.  Appellant=s second issue is overruled.

                                                                 Forty-One Cents

In his third issue, appellant contends that the trial court orally pronounced that he should pay future child support in the amount of $1,288 but that the judgment subsequently entered by the court required him to pay child support in the amount of $1,288.41.  Thus, this issue involves the sum of an additional forty-one cents a month in child support payments.

In orally pronouncing the court=s judgment, the trial court stated as follows:  AAlright.  The Court will order that the child support [payment] will be raised to $1,288, effective November 1st, 2006.@  The parties expressly stated the amount of $1,288.41 in advising the court of the amount of monthly child support appellant should be paying in the future.  In light of the parties= agreement that the correct amount of future child support was $1,288.41 and the de minimis difference between $1,288.00 and $1,288.41, we conclude that the terms of the judgment do not exceed the amount orally pronounced by the trial court.  Appellant=s third issue is overruled.

                                                    Order Signed by Successor Judge

In his fourth issue, appellant contends that the judge that signed the written order was without authority to do so because he was not the judge that presided over the hearing.  We disagree.  Ordinarily, a judge that does not hear any evidence in a case is without authority to render judgment.  See W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783  (Tex. App.CHouston [1st Dist.] 1990, no writ).  The judge that presided over the hearing on the motion to modify child support rendered judgment in this cause by virtue of his oral pronouncement of the court=s judgment.  Thus, the subsequent reduction of the orally rendered judgment to a writing signed by the court was a purely ministerial act.  Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex. 1969); W.C. Banks, Inc., 783 S.W.2d at 784.  In this regard, the judge that signed the modification order did so after conducting a hearing on appellee=s  motion for entry of final orders.  Appellee advised the trial court at this hearing that her proposed order reflected the ruling announced at the evidentiary hearing.  Appellee further advised the court that she forwarded a copy of her proposed order to appellant=s counsel for review and that opposing counsel did not lodge a complaint about it.^[5]  We conclude that the judge who signed the final order had authority to perform this purely ministerial act.  Appellant=s fourth issue is overruled.

                                                               This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

September 11, 2008

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

---

^[1]The effective date of the modified order was November 1, 2006.

^[2]Appellant was paying $800 a month in child support at the date of the hearing.  As noted herein, the trial court increased his child support payment amount to $1,288.41.

^[3]Section 154.014 is also inapplicable because appellant made his child support payments directly to appellee rather than through a child support agency. 

^[4]The trial court stated as follows to appellant in orally pronouncing the judgment: AMr. Koening, I appreciate you trying to take care of business by recognizing that when you make more the child is entitled to more.  You did that and it was accepted, so it seems to me that you paid the right amount of child support.@

^[5]Appellant did not appear at the hearing for entry of judgment.