In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00415-CV ___________________________
IN RE C.F., Relator
Original Proceeding Trial Court No. CIV-09-0919
No. 02-18-00350-CV ___________________________
IN THE INTEREST OF T.F., J.F., L.F., AND W.F., CHILDREN
On Appeal from County Court at Law No. 1 Parker County, Texas Trial Court No. CIV-09-0919
Before Sudderth, C.J.; Kerr and Pittman, JJ. Opinion by Justice Pittman OPINION
In eight mandamus issues and fourteen appellate issues, Appellant/Relator C.F.
(Mother) complains of the trial court’s omnibus “Order Enforcing Child Support
Order with Commitment Suspended” (enforcement order), which includes contempt
findings, a commitment order, community-supervision conditions, arrearage
confirmations and judgments, an award of costs and attorney’s fees, and a
withholding order. In the mandamus proceeding (Cause No. 02-18-415-CV), we:
(1) hold the entire commitment order void as well as the contempt findings based on
Mother’s failure to make student-loan payments and failure to take her child to her
primary care physician; (2) modify the enforcement order by striking those provisions;
(3) uphold the child-support, medical-support, and unreimbursed-medical-expenses
contempt findings; and (4) deny all other mandamus relief. In the appeal (Cause
No. 02-18-350-CV), we modify the cumulative judgment on the student-loan
arrearage to reflect the amount of $4,709.89 instead of $5,529.89, and we affirm the
modified enforcement order.
BACKGROUND FACTS
In 2018, Appellee/Real Party in Interest M.F. (Father) filed a motion to
enforce various liability and child-related provisions of a 2010 agreed divorce decree, a
2015 modification order, and a 2017 temporary order against Mother. Father
requested that Mother be held in contempt, confined, and placed on long-term
community supervision. He also sought confirmation of arrearages, attorney’s fees,
2 costs, judgments thereon, and withholding.
In its enforcement order after a hearing, the trial court held Mother in criminal
contempt for:
• Failing to pay Father several listed child-support and medical-support payments as ordered;
• “[E]ach individual violation of each medical reimbursement payment not made in compliance with the Support order” (but listing no violations);
• Not complying with the temporary order by failing to use the children’s primary care physician; and
• “[E]ach individual violation of each [student-loan] payment not made in compliance with the” divorce decree awarding her the student-loan debt (but listing no violations). The trial court ordered Mother committed to jail for 180 days for only one
alleged violation—“Violation 147”—her alleged failure to make one of many student-
loan payments. The trial court suspended Mother’s jail commitment and placed her
on community supervision for 120 months.
The trial court also found Mother in arrears in the amounts of (1) $4,709.89 for
student-loan payments Father made and (2) $86.50 for the children’s unreimbursed
medical expenses as of September 11, 2018, and then granted Father a cumulative
judgment on each arrearage. Finally, the trial court ordered Mother to pay Father’s
trial counsel $2,100 in reasonable and necessary attorney’s fees, taxed Father’s court
costs against Mother, and ordered “all support judgments awarded . . . , including
child support, child support arrearages, child support interest, attorney’s fees and
3 costs and the interest on attorney’s fees and costs” to be withheld from Mother’s
employment income.
Mother filed a timely notice of appeal. Instead of an appellant’s brief, however,
she filed a “Petition for Writ of Mandamus and Alternative Appellant’s Brief on
Appeal of Order Enforcing Child Support Order with Commitment Suspended.”
This court notified the parties by letter that Mother appeared to be asking for both
mandamus relief and appellate relief in her document, not one type or another,
because her issues challenged both the contempt provisions and the arrearage
provisions of the trial court’s enforcement order. See Cline v. Cline, 557 S.W.3d 810,
812 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (stating “there is no authority for
treating a case as both an original proceeding and an appeal”). This court’s letter
stated that because Mother filed an appeal and sought relief from the arrearage
judgment, her contempt issues would be dismissed for want of jurisdiction absent a
response showing this court had jurisdiction over those issues. Mother responded to
our letter by filing a second document, entitled “Petition for Writ of Mandamus,”
raising eight issues challenging the trial court’s contempt and commitment provisions
in the enforcement order.
We therefore refer to the fourteen issues raised in Mother’s first-filed
document as appellate issues and the eight issues raised in her second-filed document,
the mandamus petition, as mandamus issues.
4 DISCUSSION
I. Mandamus is an Appropriate Vehicle for Relief from Contempt.
Father argues mandamus is not the correct vehicle for Mother’s contempt
issues because she is restrained (and thus confined) by her terms of community
supervision. He consequently argues the only proper remedy for Mother’s attack on
the contempt provisions of the enforcement order is through a petition for writ of
habeas corpus. Mother argues her community-supervision terms do not restrain her
because they require her only to make payments as already ordered by the trial court;
thus, mandamus is the proper remedy. Mother is correct.
The enforcement order’s community-supervision terms require Mother to
timely pay her share of uninsured medical expenses, monthly payments on the non-
support judgment, Father’s attorney’s fees and costs for the enforcement proceeding;
and monthly payments on the remaining student-loan debt and to comply with the
trial court’s valid orders—obligations imposed on her by the trial court independently
of community supervision. We therefore hold Mother’s community-supervision
terms do not restrain her liberty. See In re Depeau, No. 14-14-00693-CV,
2014 WL 4952427, at *2 (Tex. App.—Houston [14th Dist.] Oct. 2, 2014, orig.
proceeding) (mem. op.) (holding relator was not under restraint when her community-
supervision conditions required her only to comply with the divorce decree and to
attend all compliance hearings); In re W.H., No. 02-12-00370-CV, 2012 WL 4054874,
at *6 n.5 (Tex. App.—Fort Worth Sept. 17, 2012, orig. proceeding) (mem. op.)
5 (stating the conditions of relator’s community supervision—requiring him to make
payments for current medical- and child-support obligations and arrearages and
attorney’s fees, expenses, and costs—did not subject him to a restraint on his liberty).
Mother’s petition for writ of mandamus is therefore properly before us.
A. Contempt Decisions Are Not Appealable.
We grant the extraordinary relief of mandamus only when the trial court has
clearly abused its discretion and the relator lacks an adequate appellate remedy. In re
Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). As this court’s
presubmission correspondence with the parties indicated, contempt decisions are not
appealable. Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985); In re Office of Atty.
Gen. of Tex., 215 S.W.3d 913, 915 (Tex. App.—Fort Worth 2007, orig. proceeding); see
Tex. Animal Health Comm’n v. Nunley, 647 S.W.2d 951, 952 (Tex. 1983) (noting the
court of appeals dismissed the appeal of a contempt order for want of jurisdiction
“since judgments of contempt are not appealable orders” and agreeing the court of
appeals “lacked jurisdiction to review the contempt order”). We therefore dismiss
Mother’s first, second, third, seventh, eighth, ninth, tenth, and eleventh appellate
issues, which challenge the enforcement order’s contempt provisions, and those
portions of her thirteenth and fourteenth appellate issues challenging the conditions
6 of community supervision.1
B. We Grant Mandamus Relief Only if the Trial Court Abused Its Discretion.
A trial court abuses its discretion when it reaches a decision so arbitrary and
unreasonable that it is a clear and prejudicial error of law or if it fails to correctly
analyze or apply the law to the facts. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302–
03 (Tex. 2016) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.
1992) (orig. proceeding); see also State v. Naylor, 466 S.W.3d 783, 793 (Tex. 2015) (orig.
proceeding) (“A writ of mandamus is an extraordinary remedy available ‘to correct an
action of a trial judge who commits an abuse of discretion or a violation of a clear
duty under the law.’” (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984) (orig.
proceeding))). The relator must establish that the trial court could have reasonably
reached only one conclusion. H.E.B. Grocery, 492 S.W.3d at 303 (citing Walker,
827 S.W.2d at 840). We defer to a trial court’s factual determinations that have
evidentiary support, but we review the trial court’s legal determinations de novo. In re
Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
II. Mother Was Not Entitled to a Jury on the Contempt Issues.
In her first mandamus issue, Mother complains of the denial of her jury
1 Even if we had appellate jurisdiction over the complaints challenging the conditions of community supervision, we would dismiss those complaints as moot based on our holding the entire commitment order void. See infra Part III.
7 demand. Her issue focuses only on the contempt portion of the hearing. The trial
court stated at the beginning of the hearing that it would
not assess punishment to exceed six months, period, regardless of what the pleadings say. And [Father’s enforcement motion] says not to exceed 18 months, I will say not to exceed six months by my own ruling right now. So I’m not going to grant the request for a jury trial.
Mother was sentenced to 180 days in jail for Violation 147, her alleged failure to make
a specific student-loan payment.
If a contempt order imposes a fine of not more than $500 or confinement in
the county jail for not more than six months or both, the punishment is characterized
as “petty,” and the contemnor is not entitled to a jury. Fahle v. Cornyn, 231 F.3d 193,
196 (5th Cir. 2000), cert. denied, 532 U.S. 1043 (2001); In re Newby, 370 S.W.3d 463,
466 (Tex. App.—Fort Worth 2012, orig. proceeding); see also Tex. Gov’t Code Ann.
§ 21.002(b) (providing maximum punishments allowed for contempt of court).
Because Mother was sentenced to only 180 days in jail, she was not entitled to a jury.
We overrule her first mandamus issue.
III. The Trial Court Abused Its Discretion by Finding Mother in Contempt for Failing to Make Student-Loan Payments and by Ordering Her Committed for One of Those Violations.
In the enforcement order, the trial court found that although Mother had the
ability to pay, she failed to pay the student-loan debt imposed on her in the divorce.
The trial court further found Mother “guilty of a separate act of contempt for each
individual violation of each [student-loan] payment not made in compliance with the”
8 divorce decree, but the trial court did not list any of those violations in the
enforcement order. The trial court sentenced Mother to 180 days’ confinement for
one alleged violation—Violation 147—and suspended the sentence.
In her second, third, and seventh mandamus issues, Mother challenges the trial
court’s finding her guilty of contempt for failing to pay the student-loan payments. In
her second and third mandamus issues, she also challenges the trial court’s sentencing
her for her alleged failure to make one student-loan payment.
Article I, section 18 of the Texas Constitution provides, “No person shall ever
be imprisoned for debt.” Tex. Const. art. I, § 18. Thus, holding someone in
contempt for nonpayment of a debt is unconstitutional. See Tucker v. Thomas,
419 S.W.3d 292, 297 (Tex. 2013) (“The Texas Constitution prohibits a trial court from
confining a person under its contempt powers as a means of enforcing a judgment for
debt.”); In re Green, 221 S.W.3d 645, 647 (Tex. 2007) (orig. proceeding); In re Henry,
154 S.W.3d 594, 597–98 (Tex. 2005) (orig. proceeding); Ex parte Hall, 854 S.W.2d 656,
656–57 (Tex. 1993) (orig. proceeding); In re McGonagill, No. 2-07-034-CV,
2007 WL 704888, at *3 (Tex. App.—Fort Worth Mar. 5, 2007, orig. proceeding)
(mem. op.); In re Lozano, 263 S.W.3d 87, 92 (Tex. App.—Houston [1st Dist.] 2006,
orig. proceeding). “A commitment order that violates the Texas Constitution is
beyond the court’s power and is void.” Henry, 154 S.W.3d at 596.
When a divorce court finds an asset exists and awards it in the divorce to one
spouse, the other spouse who holds the asset is not indebted to the spouse owning
9 the asset but is a constructive trustee and can be held in contempt. Ex parte Preston,
347 S.W.2d 938, 940–41 (Tex. 1961) (orig. proceeding); cf. Tex. Fam. Code Ann.
§ 9.011. However, there was no indication in the divorce decree that Mother was
awarded funds in the divorce from which to pay the student-loan debt; she was
therefore not a constructive trustee or fiduciary subject to contempt for her failure to
pay it. See Henry, 154 S.W.3d at 597.
Because the contempt finding on the student-loan payments and the
commitment order penalize Mother for her failure to pay a debt, we hold them void.
We therefore sustain Mother’s second mandamus issue on this ground and do not
reach the rest of her arguments in this issue or her third and seventh mandamus
issues. See Tex. R. App. P. 47.1.
IV. Mother Did Not Adequately Brief Her Issue Complaining of the Trial Court’s Finding Her in Contempt for Failing to Pay Father Her Share of Unreimbursed Medical Expenses.
In her sixth mandamus issue, Mother contends the trial court abused its
discretion by holding her in contempt “for each individual violation of each medical
reimbursement payment not made in compliance with the Support Order.” A person
may be held in contempt and imprisoned for failing to pay child support because the
obligation to pay child support is a duty, not a debt. See Tex. Fam. Code Ann.
§§ 157.001, 157.166–.167; Henry, 154 S.W.3d at 596; Ex parte Birkhead, 95 S.W.2d 953,
954 (Tex. 1936) (orig. proceeding). Medical support is a child-support obligation,
Tex. Fam. Code Ann. § 154.183, and it is also enforceable by contempt, see Ex parte
10 Ferrer, No. 04-14-00851-CV, 2014 WL 7183254, at *1 (Tex. App.—San Antonio Dec.
17, 2014, orig. proceeding) (mem. op.).
In her issue, Mother relies on the uncertainty of (1) the number of medical-
reimbursement violations alleged, (2) which of those violations the enforcement
order’s language references, and (3) the amount owed as well as the alleged absence of
evidence to support this contempt finding. However, she cites no authority in the
issue to support any of her contentions. We therefore overrule Mother’s sixth
mandamus issue as inadequately briefed. See Tex. R. App. P. 38.1(i); Tello v. Bank One,
N.A., 218 S.W.3d 109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (stating
courts are not obligated to “become advocates for a particular litigant” by performing
research and developing argument for that litigant) (internal quotation omitted). See
generally Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex.
1994).
V. The Trial Court Abused Its Discretion by Finding Mother in Contempt for Taking Her Child to a Physician Other than the Child’s Primary Physician. In her eighth mandamus issue, Mother contends the trial court abused its
discretion by finding her guilty of contempt for not complying with a court order
because of her failure to use the children’s primary care physician. The temporary
order provided, “IT IS ORDERED that, during her period of possession, [Mother],
as parent joint managing conservator[,] shall have the following rights and duties: . . .
‘The right to take the children to the children’s primary care physician if they are sick
11 during a period of [Mother’s] possession.’” The trial court found “that, although
[Mother] had the ability to obey the Court order regarding medical treatment, [she]
failed to use the children’s primary care physician. The Court further [found] . . .
[Mother] . . . guilty of contempt for not complying with the Court Order.”
Mother argues that provision in the temporary order is not specific enough to
be enforced by contempt. Mother cites no authority for her argument in this issue,
but elsewhere in her petition to support the same argument for other challenged
provisions as well as in her reply to Father’s response, Mother relies on Ex parte Slavin,
412 S.W.2d 43 (Tex. 1967) (orig. proceeding). We therefore address her issue in the
interest of justice.
We strictly construe orders to be enforced in contempt cases. Ex parte Jones,
331 S.W.2d 202, 204 (Tex. 1960) (orig. proceeding); In re Aslam, 348 S.W.3d 299,
303 (Tex. App.—Fort Worth 2011, orig. proceeding) The order sought to be
enforced must use clear, specific, and unambiguous terms so that the person charged
with obeying it can quickly discern exactly what duties and obligations are imposed on
her. Slavin, 412 S.W.2d at 44; Aslam, 348 S.W.3d at 303. “Interpretation of the
provisions of the court order . . . should not rest upon implication or conjecture. The
allegedly contemptuous acts must be directly contrary to the express terms of the
court order.” Ex parte Blasingame, 748 S.W.2d 444, 446 (Tex. 1988) (orig. proceeding);
Aslam, 348 S.W.3d at 303.
The language in the temporary order permits Mother to seek treatment for the
12 children from their children’s primary care physician but does not expressly enjoin or
restrain Mother from seeking medical care for the children from another provider.
Compare In re Sanner, No. 01-09-00001-CV, at *8 (Tex. App.—Houston [1st Dist.] May
20, 2010, orig. proceeding) (mem. op.) (striking contempt finding for father’s failure
to give child medication when order enjoined him from preventing the child from
taking medication but did not require him to administer the medication), with id.
(upholding contempt findings regarding father’s taking the child to see new doctors
not recommended by Texas Children’s Hospital Learning Support Center when order
enjoined the parties from doing so). We therefore agree with Mother that the
primary-care-physician provision in the temporary order is not enforceable by
contempt, and we hold the contempt finding regarding Mother’s violation of that
provision void. See id. We sustain Mother’s eighth mandamus issue.
VI. The Trial Court Did Not Abuse Its Discretion by Finding Mother in Contempt for Nonpayment of Child Support and Medical Support.
In her fourth and fifth mandamus issues, Mother complains the trial court
abused its discretion by finding her guilty of contempt for nonpayment of child
support (Issue Four) and nonpayment of medical support (Issue Five). As the basis
for these issues in her petition, Mother focuses only on the trial court’s findings that
she was not in arrears for child support and medical support on August 31, 2018 or at
the time of the enforcement hearing. The evidence is undisputed that Mother had
been behind on child support and medical support but had caught up by making
13 lump-sum payments before the enforcement hearing.
Several years ago, former section 157.162(d) of the Texas Family Code
permitted “a child support obligor to escape a valid finding of contempt if the obligor
demonstrate[d] at the enforcement hearing that he or she [was] current in the payment
of child support as ordered by the court.” In re Office of Atty. Gen., 422 S.W.3d 623,
628 (Tex. 2013) (orig. proceeding) (internal quotation marks omitted). That section
was repealed, however, effective June 14, 2013. See In re Hall, 433 S.W.3d 203,
213 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding). Mother’s child-
support violations and medical-support violations found by the trial court all occurred
well after that effective date. Consequently, her ability to become current on child
support and medical support by the time of the enforcement hearing had no impact
on the trial court’s discretion to hold her in contempt for past violations of its orders.
In her petition’s statement of facts and in her reply to Father’s response,
Mother also raises the bare contention that Father abandoned his claims for contempt
on these alleged violations via the following testimony:
Q. Are you asking that the court hold her in contempt for violations 122, 123, 124, 125, 126, 127, 128, and 147 of all the counts that we had requested? A. Correct. We note that none of the violations listed in the question concern child support or
cash medical support.
However, Mother cites no authority in her petition or reply for the
14 abandonment proposition. Thus, to the extent Mother relies on the statement of
facts in her petition to supplement her fourth and fifth mandamus issues, we overrule
the argument as inadequately briefed. See Tex. R. App. P. 38.1(i); Fredonia State Bank,
881 S.W.2d at 284–85; Tello, 218 S.W.3d at 116. Further, we do not consider issues
raised for the first time in a reply. See In re PDVSA Servs., Inc., No. 14-17-00824-CV,
2017 WL 6459227, at *2, n.2 (Tex. App.—Houston [14th Dist.] Dec. 19, 2017, orig.
proceeding) (mem. op.) (per curiam); In re Elamex, S.A. de C.V., 367 S.W.3d 879, 888,
n.8 (Tex. App.—El Paso 2012, orig. proceeding); see also Tex. R. App. P. 52.3(f)
(“Issues Presented. The petition must state concisely all issues or points presented for
relief.”); cf. City of Fort Worth v. Rylie, 563 S.W.3d 346, 365 (Tex. App.—Fort Worth
2018, no pet.) (holding same for reply brief in an appeal). We therefore hold the trial
court did not abuse its discretion by holding Mother in contempt for child-support
and medical-support violations, and we overrule her fourth and fifth mandamus
issues.
VII. We Strike the Void Contempt Findings and Commitment Order.
Having held the student-loan contempt finding, the primary-physician
contempt finding, and the entire commitment order void, we modify the enforcement
order to delete those provisions. See In re Zapata, 129 S.W.3d 775, 780–81 (Tex.
App.—Fort Worth 2004, orig. proceeding) (citing Ex parte Roosth, 881 S.W.2d 300,
301 (Tex. 1994) (orig. proceeding)); see also In re Durant, No. 02-09-00079-CV,
2009 WL 2914300, at *3 (Tex. App.—Fort Worth Sept. 10, 2009, orig. proceeding)
15 (mem. op.).
VIII. The Trial Court Did Not Abuse Its Discretion by Confirming an Arrearage on Mother’s Share of the Unreimbursed Medical Expenses.
In Mother’s fourth appellate issue, she complains the trial court abused its
discretion by confirming the arrearage on her share of the children’s unreimbursed
medical expenses because there was no evidence, or insufficient evidence, that she
owed Father $86.50 in that category.
A. We Review Determinations of Child-Support Arrearages for an Abuse of Discretion.
We review a trial court’s confirmation of child-support arrearages for an abuse
of discretion. In re R.R., No. 02-15-00032-CV, 2017 WL 632897, at *3 (Tex. App.—
Fort Worth Feb. 16, 2017, pets. denied) (mem. op.); see In re F.M.B., No. 02-12-00153-
CV, 2014 WL 70108, at *9 (Tex. App.—Fort Worth Jan. 9, 2014, no pet.) (mem. op.);
see generally Tex. Fam. Code Ann. § 154.183(c)(1) (stating unreimbursed medical
expenses not covered by insurance or included in cash medical support are allocated
as additional child support). A trial court abuses its discretion if it acts without
reference to any guiding rules or principles, that is, if its act is arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings,
134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot conclude a trial court
abused its discretion merely because the appellate court would have ruled differently
in the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,
558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
16 When reviewing a trial court’s family law decision for an abuse of discretion,
legal and factual insufficiency are not independent reversible grounds of error but are
relevant factors. Neyland v. Raymond, 324 S.W.3d 646, 649 (Tex. App.—Fort Worth
2010, no pet.). Accordingly, in determining whether an abuse of discretion has
occurred because the evidence is legally or factually insufficient to support the trial
court’s decision, we engage in a two-pronged inquiry: (1) did the trial court have
enough information upon which to exercise its discretion; and (2) did the trial court
err in applying its discretion? Id. The applicable sufficiency review comes into play in
answering the first question. Id. at 649–50. Concerning the second question, we
determine, based on the elicited evidence, whether the trial court made a reasonable
decision. Id. at 650.
B. Evidence Supports the Trial Court’s Determination that Mother Owed Father $86.50 in Unreimbursed Medical Expenses.
“The movant on a motion to enforce a child-support order, including an order
to provide medical support, has the burden of establishing the amount of support
owed.” In re E.G., No. 02-16-00302-CV, 2017 WL 3821862, at *2 (Tex. App.—Fort
Worth Aug. 31, 2017, no pet.) (mem. op.); see Tex. Fam. Code Ann. § 154.183(c)(1).
Father testified that (1) Mother owed him $7,296.89 in unreimbursed medical
expenses at the time he filed his enforcement motion; (2) she paid $7,210.39—all but
$86.50 owed—by the time of the enforcement hearing; and (3) she still owed him
$86.50 for unreimbursed medical expenses. Mother’s Exhibit One, which was
17 admitted into evidence, is a copy of an OurFamilyWizard report generated by Father.
It lists the children’s unreimbursed medical and dental expenses from July 2013 to
January 2018 by date, payee, status, category, total amount, what Father was owed or
did owe, and what he received or paid. The “owed” column indicates Mother owed
Father a total of $7,210.39, and Father admitted as much in his testimony, but the
total expenses column indicates Mother’s portion of the expenses was $7,296.89,
leaving a difference of $86.50 in Father’s favor. The report contains the following
entries for August 16, 2016:
The $86.50 in the total expenses column of the “Refused” entry, matched with
the $0 in the owed column, appears to be responsible for the conflict in the report.
But the trial court as factfinder could choose to believe all, some, or none of the
evidence. See State Farm Fire & Cas. Co. v. Rodriguez, 88 S.W.3d 313, 321 (Tex. App.—
San Antonio 2002, pet. denied), abrogated on other grounds by Don’s Bldg. Supply, Inc. v.
OneBeacon Ins. Co., 267 S.W.3d 20, 26–27 (Tex. 2008). Thus, the trial court could have
chosen to believe Father’s testimony that Mother owed him $86.50 and to disbelieve
18 the report’s indication that Mother owed Father nothing for the “Refused” entry. We
hold that sufficient evidence supports the trial court’s decision. Accordingly, we
cannot conclude the trial court abused its discretion by confirming the
$86.50 arrearage for unreimbursed medical expenses. We overrule Mother’s fourth
appellate issue.
IX. The Trial Court Did Not Abuse Its Discretion by Confirming the Student-Loan Arrearage.
In her fifth appellate issue, Mother complains the trial court abused its
discretion by confirming the arrearage on the student-loan payments Father paid in
her stead. She argues that there is no evidence or insufficient evidence to support the
judgment. We review the trial court’s ruling on a motion for enforcement of a
divorce decree for an abuse of discretion. Murray v. Murray, 276 S.W.3d 138, 143 (Tex.
App.—Fort Worth 2008, pet. dism’d). The movant has the burden to prove the
amount of the arrearage due. Hargrove v. Hargrove, No. 03-15-00415-CV,
2016 WL 1039019, at *2 (Tex. App.—Austin Mar. 9, 2016, no pet.) (mem. op.); Woody
v. Woody, 429 S.W.3d 792, 798 (Tex. App.—Houston [14th Dist.] 2014, no pet. ) (op.
on reh’g).
Father asked the trial court to take judicial notice of his enforcement motion
and the 2010 agreed divorce decree, 2015 modification order, and 2017 temporary
order attached to the motion, and the trial court did so. While a trial court may take
judicial notice of the contents of its file, however, it may not take judicial notice of the
19 truth of any factual allegations contained in its file. In re R.A., No. 02-18-00185-CV,
2018 WL 5832148, at *8 (Tex. App.—Fort Worth Nov. 8, 2018, no pet.) (mem. op.);
In re T.S.P., No. 04-14-00547-CV, at *3–4 (Tex. App.—San Antonio Aug. 26, 2015,
no pet.) (mem. op.); see also Tex. R. Evid. 201(b)(1)–(2) (stating the court may judicially
notice a fact that is not subject to reasonable dispute because it is generally known
within the trial court’s territorial jurisdiction or can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned). Neither
party offered the documents into evidence. We therefore do not explore Father’s
argument that documents attached to his enforcement motion as Exhibit J confirm
his student-loan payments to the account named in the decree.
Nevertheless, the evidence admitted does support the trial court’s confirmation
of the arrearage. First, Father’s testimony supports the amount. On direct
examination, Father testified he was asking for a judgment of $5,529.89 (1) for
nineteen Sallie Mae payments he made on a student-loan debt that Mother was
ordered to pay in the divorce decree and (2) for her share of their son’s legal expenses.
When asked whether he was asking the trial court to order that Mother “pay the
820 owed on or before October 31st for the legal fees for [their son] as a condition of
probation,” he answered, “That’s correct.” Subtracting $820 from the combined
requested judgment of $5,529.89 leaves $4,709.89, the amount the trial court found
Mother in arrears for the student-loan payments she did not pay but Father did.
Second, Father’s testimony supports the conclusion that the student-loan debt
20 was imposed on Mother in the divorce decree and that she was responsible for
making timely payments but that he should make the payments if she did not and
reduce court-ordered spousal support payments accordingly. On direct examination,
Father testified Mother was ordered to pay the student-loan debt in the divorce
decree. On cross-examination, Father testified that:
• The divorce decree stated that Mother was to pay the student-loan debt and if she did not, he should make the payment and deduct it from his monthly spousal support payments to her, which he believed he was making “at the time”; and
• The divorce decree stated that the student loan had been issued to both Mother and Father, but the decree placed the obligation to pay it on Mother. We decline to address Mother’s additional, conclusory arguments that the trial
court abused its discretion by confirming the arrearage because the underlying order
was patently ambiguous and unenforceable by contempt as Mother has not supported
those arguments with appropriate citations to authority. See Tex. R. App. P. 38.1(i);
Fredonia State Bank, 881 S.W.2d at 284–85; Tello, 218 S.W.3d at 116.
We therefore hold the trial court did not abuse its discretion by confirming that
Mother owed Father $4,709.89 for student-loan payments he made. We overrule
Mother’s fifth appellate issue.
X. The Trial Court Did Not Abuse Its Discretion by Granting a Judgment on the Arrearages, But We Correct the Amount of the Judgment for the Student-Loan Arrearage.
In her sixth appellate issue, Mother contends “[t]he money judgment rendered
21 against [her] was a cumulative judgment in the amount of $4,796.39, which
represented the $86.50 in alleged unreimbursed medical expenses and $4,709.89 in
alleged missed payments to Sallie Mae.” She argues the trial court abused its
discretion by granting judgment against her. Because we have overruled Mother’s
fourth and fifth issues complaining of the confirmation of those arrearages, we
likewise overrule her sixth appellate issue to the extent it complains of the grounds for
the awards.
However, we note that there are two cumulative judgments: one for the
unreimbursed-medical-expenses arrearage and one for the student-loan arrearage.
The cumulative judgment amount for the student-loan arrearage—$4,796.39—
exceeds the confirmed student-loan arrearage—$4,709.89—by $86.50, the amount of
the unreimbursed-medical-expenses arrearage and its associated cumulative judgment.
No evidence supports this discrepancy, nor do the trial court’s findings. We therefore
sustain the remainder of Mother’s sixth appellate issue and modify the student-loan
cumulative judgment to reflect an amount of $4,709.89 instead of $4,796.39. See Tex.
R. App. 43.2(b); see, e.g., Cenac Towing, Inc. v. Defonte, No. 01-12-01036-CV,
2014 WL 4344901, at *8 (Tex. App.—Houston [1st Dist.] Aug. 29, 2014) (mem. op.)
(correcting math errors in prejudgment interest and total damages awarded).
XI. The Trial Court Did Not Abuse Its Discretion by Awarding Father Attorney’s Fees of $2,100.
In Mother’s thirteenth appellate issue, she contends the trial court abused its
22 discretion by awarding Father attorney’s fees of $2,100 because “there is no basis” for
the enforcement order and the evidence is insufficient to support the amount of
attorney’s fees awarded. She does not contend that the attorney’s fees awarded were
not reasonable and necessary. We have already upheld the challenged arrearages as
well as the child-support, medical-support, and unreimbursed-medical-expenses
contempt findings. We therefore reject Mother’s challenge to the enforcement
order’s basis. See Tex. Fam. Code Ann. § 157.167(a) (requiring trial court to order
respondent to pay movant’s reasonable attorney’s fees and costs if the court finds
respondent has failed to make child-support payments); In re M.K.R., 216 S.W.3d 58,
67 (Tex. App.—Fort Worth 2007, no pet.) (recognizing trial court has authority to
order attorney’s fees upon finding child-support payments were not paid when due
even when arrearage is paid by the time of the hearing).
Further, the evidence sufficiently supports the amount of the award. As this
court recently explained,
The party seeking to recover attorney’s fees has the burden of proof. The reasonableness of attorney’s fees is a fact question to be determined by the factfinder and must be supported by competent evidence. To support a request for reasonable attorney’s fees, testimony should be given regarding the hours spent on the case, the nature of preparation, the complexity of the case, the experience of the attorney, and the prevailing hourly rates. The trial court has broad discretion in awarding attorney’s fees, particularly in child-support cases. R.R., 2017 WL 632897, at *11 (citations omitted). Father’s trial counsel testified that:
• She was licensed in good standing and a member of the State Bar College;
23 • She had practiced exclusively in family law matters since 2003 in Parker County and surrounding counties;
• She billed at $300 per hour, which is reasonable based on her years of experience and practice area;
• She billed Father separately for his modification suit and the enforcement action;
• She worked at least seven hours on the enforcement action;
• Drafting the original motion, the live motion, and proposed enforcement order was very labor intensive because of the multiple orders violated;
• She put together the motion and appendices totaling 185 pages;
• She organized all the receipts and Our Family Wizard documents;
• Because the language in enforcement motions and orders has to be exact, she always drafts enforcement motions and proposed enforcement orders herself;
• The drafting of the motion and order and her appearance at the hearing were responsible for most of the billed time;
• She sought no payment for fees incurred by her paralegal or legal secretary;
• She sought $2,100 in attorney’s fees;
• She did not have any billing statements with her; and
• It was reasonable and necessary for Father to bring his enforcement motion to get Mother to comply with various court orders for the children’s benefit. The hearing lasted approximately an hour and fifteen minutes. The clerk’s record
includes the live, 185-page motion to enforce (including appendices) as well as the
proposed 89-page order (including appendices). We hold the evidence sufficiently
24 supports the amount of attorney’s fees awarded.
We therefore hold the trial court did not abuse its discretion by awarding
$2,100 in attorney’s fees. We overrule the remainder of Mother’s thirteenth appellate
issue.
XII. The Trial Court Did Not Abuse Its Discretion by Awarding Father Court Costs of $116.
In Mother’s fourteenth appellate issue, she challenges the basis of the order
that she pay Father’s costs and the sufficiency of the evidence supporting the amount.
We overrule Mother’s “basis” argument for the same reason we overruled it in the
contest of the attorney’s fee award above. See Tex. Fam. Code Ann. § 157.167(a).
In her sufficiency challenge, Mother argues no invoices or receipts were
admitted showing service or filing fees. However, Father testified he wanted Mother
to pay $116 for his filing the enforcement proceeding and his serving her with his
enforcement motion, and his trial counsel testified she paid a filing fee, an efiling fee,
and the process service fee for personal service of the enforcement motion on
Mother—“$116 in fees . . . were paid out of [Father’s trial counsel’s] office.” We hold
the testimony sufficiently supports the award of costs and the trial court did not abuse
its discretion by awarding costs to Father. We overrule the remainder of Mother’s
fourteenth appellate issue.
XIII. The Trial Court Did Not Abuse Its Discretion by Ordering the Support Judgments Withheld From Mother’s Paychecks.
In her twelfth appellate issue, Mother challenges the trial court’s order that “all
25 support judgments awarded”—“including child support, child support arrearages,
child support interest, attorney’s fees and costs and the interest on attorney’s fees and
costs”—should be withheld from her employment income. First, as the enforcement
order indicates, the judgment confirming the student-loan arrearage is not a support
judgment. Second, the only arrearage judgment is the $86.50 judgment for
reimbursement of the children’s uninsured health expenses, which we have upheld.
Third, from our review of the testimony (and the void community supervision order),
it appears that Mother was no longer subject to orders requiring her to pay current
child support and cash medical support but was still obligated to pay her portion of
the children’s uninsured health care expenses.
The Texas Family Code authorizes income withholding for child-support
arrearages, including accrued interest, whether or not current child support is owed.
Tex. Fam. Code Ann. §§ 158.003, .004. And, as Mother concedes, section
158.0051 of the Texas Family Code authorizes a trial court to order income to be
withheld for attorney’s fees and costs resulting from an action to enforce child
support. Id. § 158.0051. Because we have upheld the trial court’s confirmation of the
arrearage for reimbursement of uninsured health expenses and the awards of
attorney’s fees and costs, we likewise uphold the withholding order. We overrule
Mother’s twelfth appellate issue.
CONCLUSION
We sustain Mother’s second and eighth mandamus issues and overrule or do
26 not reach her remaining six mandamus issues. We:
• hold the student-loan contempt finding, the primary-physician contempt finding, and the entire commitment order void;
• modify the “Order Enforcing Child Support Order with Commitment Suspended” by striking those void provisions;
• uphold the remaining contempt findings; and
• deny Mother’s requested mandamus relief in all other respects. In Mother’s appeal, we dismiss her appellate issues complaining of contempt or
the commitment order, sustain part of her sixth appellate issue, and overrule the
remainder of her appellate issues. We modify the “Cumulative Judgment on
Arrearages of Non-Support Provisions” (the judgment on the student-loan arrearage)
to reflect the amount of $4,709.89 instead of $4,796.39, and we affirm the “Order
Enforcing Child Support Order with Commitment Suspended” as modified.
/s/ Mark T. Pittman Mark. T. Pittman Justice
Delivered: May 1, 2019