Sheldon v. Marshall

768 S.W.2d 852, 1989 Tex. App. LEXIS 1266, 1989 WL 49904
CourtCourt of Appeals of Texas
DecidedMarch 23, 1989
Docket05-87-01395-CV
StatusPublished
Cited by3 cases

This text of 768 S.W.2d 852 (Sheldon v. Marshall) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheldon v. Marshall, 768 S.W.2d 852, 1989 Tex. App. LEXIS 1266, 1989 WL 49904 (Tex. Ct. App. 1989).

Opinions

[853]*853LAGARDE, Justice.

Joseph P. Sheldon (Father) appeals from the trial court’s order in favor of Mary Ann Marshall (Mother) granting a modification of child support and providing for a lump sum payment of one-half of the medical expenses incurred by N_ S_ (Daughter).1 In three points of error, Father asserts that: (1) the trial court did not have jurisdiction to order child support after the date of Daughter’s eighteenth birthday; (2) the trial court did not have jurisdiction to order a lump sum child support payment for medical expenses after the date of Daughter’s eighteenth birthday; and (3) the trial court abused its discretion in ordering a lump sum child support payment for Daughter’s medical expenses without Father’s agreement and exceeding his obligation under the pre-existing child support order. We disagree with all three points of error; consequently, we affirm the trial court’s judgment.

The facts in this case show that Daughter required substantial treatment for psychiatric problems. Both Father and Mother admitted Daughter into a psychiatric treatment facility. However, when insurance benefits ran out, Father refused to pay for any amount of the medical treatments. He contended that Daughter could receive less expensive therapy.

As a result of Father’s refusal to pay, Mother filed a motion to modify the trial court’s original child support order. The motion to modify requested that the trial court order Father to pay one-half of the child’s medical expenses not covered by insurance. Mother then amended the motion to request that Father pay one-half of the uninsured medical expenses from the date of the filing of the original motion, including medical expenses incurred after Daughter’s eighteenth birthday. It must be noted that Mother filed both the original and amended motions prior to Daughters eighteenth birthday.

A family court master heard the motion to modify and made a written recommendation to the trial court on June 18, 1987, as to disposition of the motion. Father appealed the master’s recommendation, and the case proceeded to trial on July 23, 1987 — twenty-one days after Daughter’s eighteenth birthday. Following the trial, the court ordered Father to pay $37,948.00 in the form of a lump sum payment for one-half of Daughter’s uninsured medical bills and $854.00 a month while Daughter remained in high school. With these facts in mind, we address Father’s first two points of error.

Jurisdiction

In points of error one and two, Father claims that the trial court did not have jurisdiction, under either section 14.05(a) or section 14.08(c) of the Texas Family Code, to order lump sum child support payments or extend child support since the trial court’s order was entered after Daughter’s eighteenth birthday. In other words, the real issue, under points of error one and two is whether the filing of a motion to modify child support prior to the child’s eighteenth birthday extended the trial court’s jurisdiction to hold a hearing and order child support after the child became eighteen.

At the time of the trial, Section 14.05(a) read:

The court may order either or both parents to make periodic payments or a lump sum payment, or both, for the support of the child until he or she is 18 years of age in the manner and to the persons specified by the court in the decree; provided that, if the child is fully enrolled in an accredited primary or secondary school in a program leading toward a high school diploma, the order for [854]*854periodic support of the child may provide that payments continue until the end of the school year in which the child graduates. In addition, the court may order a parent obligated to support a child to set aside property to be administered for the support of the child in the manner and by the persons specified by the court in the decree. After reviewing the recommendations of the Texas Commission on Child Support, the Supreme Court of Texas shall by rule adopt guidelines to compute an equitable amount of child support to guide the courts in determining the amount of child support. In determining the amount of child support, the court shall consider all appropriate factors, including but not limited to the guidelines adopted by the Supreme Court, the needs of the child, the ability of the parents to contribute to the child’s support, and any financial resources available for the support of the child.

Procedures to Establish and Enforce Child Support, ch. 232, § 6, 1985 Tex.Gen.Laws 1158,1160.2 As the quote above reveals, at that time, section 14.05(a) contained no express language regarding whether the court could retain jurisdiction to modify child support after the child’s eighteenth birthday.

However, in interpreting a former version of section 14.05(a),3 the Supreme Court held that the clear import of section 14.-05(a) and (b), when read in context with other provisions of title 2 of the Family Code, was that child support payments would be continued after the child’s eighteenth birthday only if the grounds existed and were invoked before the child became an adult, i.e., before the child reached age eighteen. See Red v. Red, 552 S.W.2d 90, 92 (Tex.1977). Despite the fact that the court spoke in terms of both section 14.-05(a) and 14.05(b), the holding in Red was actually based on section 14.05(b). See Red, 552 S.W.2d at 92. Therefore, the language in Red concerning section 14.05(a) could be read as dictum. However, even if the language concerning section 14.05(a) is dictum, it still clearly expresses the Court’s views in this area. As we interpret the views expressed by the Court in Red, the trial court, in 14.05(a) actions, retains jurisdiction after the child’s eighteenth birthday as long as the jurisdiction of the court was invoked prior to the child’s eighteenth birthday. Furthermore, Red implies that filing a motion to modify or filing any other proper pleading invokes jurisdiction of the trial court. Id.

Recently, the Corpus Christi Court of Appeals interpreted Red in the same manner we interpret it, i.e., to mean that if the appellant filed a section 14.05(a) action in the court of original jurisdiction, setting out grounds for relief prior to the child’s eighteenth birthday, that action was sufficient to invoke the trial court’s jurisdiction to hear the motion even though the hearing occurred after the child’s eighteenth birthday. See McLendon v. Allen, 752 S.W.2d 731, 733 (Tex.App.—Corpus Christi 1988, n.w.h.).

Similarly, this Court has held that the trial court loses jurisdiction in section 14.-05(a) cases when the motion to modify was not filed prior to the child’s eighteenth birthday. See Ex parte Boemer, 711 S.W.2d 406, 407 (Tex.App.—Dallas 1986, orig. proceeding); cf. Fullerton v. Holliman, 721 S.W.2d 478, 479 (Tex.App.—Eastland 1986, writ dism’d) (motion filed after eighteenth birthday did not comport with holding in Red that grounds must exist and be [855]*855invoked prior to child’s eighteenth birthday); Mr. W. Fireworks, Inc. v. Mitchell,

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Sheldon v. Marshall
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Bluebook (online)
768 S.W.2d 852, 1989 Tex. App. LEXIS 1266, 1989 WL 49904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheldon-v-marshall-texapp-1989.