in the Interest of M.S. and M.D.S., Children

• Court: Court of Appeals of Texas
• Decided: July 8, 2019
• Docket: 05-18-00536-CV
• Status: Published

Opinion

AFFIRM; and Opinion Filed July 8, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00536-CV

IN THE INTEREST OF M.S. AND M.D.S., CHILDREN

On Appeal from the 301st Judicial District Court Dallas County, Texas Trial Court Cause No. DF-18-01157

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Reichek Opinion by Justice Schenck Michael Bolton appeals a Qualified Domestic Relations Order (QDRO) withdrawing

money from Bolton’s employee retirement account to pay toward his child support arrearage. In

four issues, Bolton contends (1) the issuance of the QDRO constitutes a taking without due

process; (2) the QDRO is not an “enforcement” order; (3) the Office of the Attorney General failed

to file a writ; and (4) the Office of the Attorney General is collaterally estopped from requesting

the issuance of a QDRO. For the reasons stated below, we decide against Bolton on all four issues.

We affirm the judgment against Bolton.

BACKGROUND

The subject of this appeal is a QDRO to collect a child-support arrearage. The parties agree

that Bolton is in arrears on his child support payments; however, they disagree as to what methods

are permissible for collecting payment. Bolton is the father of two children. In April 1993, the trial court held a hearing on the

parent–child relationship. On May 11, 1993, the court signed an order requiring Bolton pay $305

per month in child support. Bolton did not comply with the required payments. On July 16, 2013,

after another hearing, the trial court issued a final order confirming that Bolton owed $40,268.38

in child support arrearages.1 The July 2013 order required Bolton to make monthly payments of

$300 toward this arrearage. Included in the order was the statement “nothing herein shall prohibit

the use of other collection methods authorized by law. The Court’s order setting out payments on

a child support judgment does not preclude or limit the use of any other means for enforcement of

the judgment.”

As of January 2, 2018, Bolton owed $25,980.64 in child support arrearages. On January

17, 2018, the Office of the Attorney General (OAG) filed a Motion for Qualified Domestic

Relations Order on behalf of Mother. Bolton was served with citation on the motion and filed an

answer. A hearing was held on April 26, 2018. At the hearing, both parties presented argument.

After the hearing, the trial court issued a QDRO withdrawing $5,500 from Bolton’s PepsiCo

Savings plan to pay toward Bolton’s child support arrears. Bolton timely filed this appeal.

STANDARD OF REVIEW

We ordinarily review the trial court’s ruling on a post-divorce motion for enforcement or

clarification of a divorce decree under an abuse-of-discretion standard. Hollingsworth v.

Hollingsworth, 274 S.W.3d 811, 815 (Tex. App.—Dallas 2008, no pet.); see also Beshears v.

Beshears, 423 S.W.3d 493, 500 (Tex. App.—Dallas 2014) (a QDRO is a post-divorce enforcement

order). A court abuses its discretion when it acts unreasonably, arbitrarily, or without reference to

guiding rules and principles. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Beshears

v. Beshears, 423 S.W.3d 493, 499 (Tex. App.—Dallas 2014, no pet.). A trial court does not abuse

1 The record does not contain any motion filed by Mother or the OAG in connection with this order.

–2– its discretion when there is some evidence of a substantive and probative character to support its

decision. In re A.E.R., No. 05-15-00019-CV, 2016 WL 4205683, at *1 (Tex. App.—Dallas Aug.

9, 2016, pet. denied) (mem. op.). However, where the facts are undisputed, leaving only issues for

review that are questions of law, we will review de novo. See Gulf Ins. Co. v. Burns Motors, Inc.,

22 S.W.3d 417, 423 (Tex. 2000).

DISCUSSION

A. Due Process Concerns

In his first issue, Bolton argues the issuance of the QDRO constitutes a taking without due

process. The Due Process Clause of the United States Constitution ensures a party is provided

notice and an opportunity to be heard prior to a taking of property. See Boddie v. Connecticut, 401

U.S. 371, 377 (1971); U.S. CONST. AMENDS. V, XIV, § 1. The record reflects that Bolton was

served with citation, filed an answer, and that he presented arguments and cross-examined

witnesses at a hearing on the motion. Because of this, we conclude that standard due-process

requirements were met in this case. Id. We overrule Bolton’s first issue.

B. Enforcement Action

In his second issue, Bolton contends that the QDRO is not an “enforcement” action, so it

is not allowed by the underlying court order. He does not cite us to any authority in support of this

claim. We have said previously that a QDRO is, indeed, a post-divorce enforcement order. See

Beshears, 423 S.W.3d at 500. We therefore overrule this issue.

C. A Writ Is Not Required

In his third issue, Bolton argues that the July 2013 order2 lacks the required language to

execute a writ on this order. He urges that, prior to requesting a QDRO, the OAG must obtain a

2 In this section of his brief Bolton refers to the order as the “July 16, 2018” order. The record does not contain an order with that date. We therefore presume he is referring to the July 16, 2013 order requiring him to pay $300 per month toward his arrears.

–3– writ of execution or a writ of garnishment from the trial court and that the lack of either writ

functions as a procedural defect that deprives him of due process. He cites no authority in support

of this contention. Section 157.264(a) of the Family Code allows a cumulative arrearage judgment

to be “enforced by any means available for the enforcement of a judgment for debts or the

collection of child support.” TEX. FAM. CODE §157.264(a). We are aware of no authority, and

Bolton has certainly directed us to none, requiring the OAG to apply for an additional writ to

enforce the July 2013 order. We therefore overrule Bolton’s third issue.

D. Collateral Estoppel

In his fourth issue, Bolton argues that the OAG is collaterally estopped from requesting a

QDRO because the case at bar was fully and fairly litigated. Specifically, he claims collateral

estoppel should apply because “the issue to be estopped was both fully and fairly litigated and

resulted in the July 16, 2013 order, the trial court issued a final order confirming a child support

arrearage, being the amount of child support that Appellant owed and how he was required to pay

it back.” Collateral estoppel is relevant in circumstances where parties are attempting to re-litigate

issues resolved in an earlier judgment in a subsequent proceeding. See Tex. Dep’t of Pub. Safety

v. Petta, 44 S.W.3d 575, 579 (Tex. 2001). The parties in this case are not seeking to re-litigate

any issues necessary to the underlying judgment. Rather, the parties are seeking to enforce that

judgment; collateral estoppel principles, accordingly, do not apply. See id. We overrule Bolton’s

fourth issue.3

3 Included in his section regarding collateral estoppel, Bolton contends that the children who are the subject of this suit are over the age of majority. He makes no further argument, nor does he cite us to any authority, as to what effect the children’s age has on the propriety of the OAG’s suit or on the QDRO at issue.

–4– CONCLUSION

We affirm the trial court’s Qualified Domestic Relations Order.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

180536F.P05

–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF M.S. AND On Appeal from the 301st Judicial District M.D.S., CHILDREN Court, Dallas County, Texas Trial Court Cause No. DF-18-01157. No. 05-18-00536-CV Opinion delivered by Justice Schenck. Justices Osborne and Reichek participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 8th day of July, 2019.

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