Summary
holding section 157.066 authorizes trial court to enter a default judgment if respondent fails to appear at a hearing on a motion for enforcement
Summary of this case from Ex parte KeithOpinion
No. 05-04-00676-CV
Opinion Filed July 29, 2005.
On Appeal from the 330th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 99-9676.
Affirm.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
MEMORANDUM OPINION
Richard Wayne Wells, Sr. ("Father") appeals the order entered against him in this child support enforcement proceeding. Amanda Wells ("Mother") filed the Amended Motion for Enforcement (the "Amended Motion"). The Amended Motion was set for hearing, but Father failed to appear, and the trial court granted the Amended Motion. Father raises five points of error, charging (1) the support provisions of the divorce decree are unenforceable, (2) Mother failed to provide him notice of the hearing on the Amended Motion, (3) the Amended Motion as filed was incomplete, (4) there is a variance between Mother's pleading and her proof, and (5) evidence is both legally and factually insufficient to support the court's order. We affirm the trial court's order.
In his first point of error, Father argues the provisions of the final divorce decree that require him to pay child support and medical care expenses for his children are not specific enough to be enforceable against him. Specifically, Father complains that the decree ordered him to begin payments required by the decree "upon the 30th day of the release/parole of Richard Wayne Wells, Sr., from any federal and/or state penitentiary and halfway house," rather than on a date certain. Father also complains that the decree set his child support obligation at 30% of his net monthly income, rather than at a sum certain. Father argues these provisions are subject to different interpretations, and, as a result, the order would not be enforceable by contempt. He asks us to reverse the enforcement order on this ground and to render judgment that Mother take nothing.
We reject Father's arguments on this point. The record contains Father's testimony taken during the hearing on Mother's motion for new trial on her original motion for enforcement. At that time — just four months before the hearing on the Amended Motion — Father identified without equivocation the date he was released from prison (August 22, 2002) and agreed that his first support payment would have been due on September 22, 2002. Father testified as to his income ($500 weekly) and stated he had no objection to his support payments being based on 30 percent of his income, adjusted annually according to his income tax records. Father's own testimony, thus, defeats any factual claim that these provisions were vague or confusing or subject to widely different interpretations. We also reject Father's legal argument that if an order is not enforceable by contempt then it cannot support a judgment. The family code specifically provides that, in an enforcement proceeding, "[t]he movant is not required to prove that the underlying order is enforceable by contempt to obtain other appropriate enforcement remedies." Tex. Fam. Code Ann. § 157.162(a) (Vernon 2002). We overrule Father's first point of error.
In his second point of error, Father charges that the trial court erroneously granted the Amended Motion because he was not served with notice to appear at the hearing. The Amended Motion, which is part of the record before us, includes an Order to Appear dated February 26, 2004. The order is signed by the trial court and orders Father to appear for the hearing on the Amended Motion on April 5, 2004. The record also includes the Citation and Notice issued to Father on February 26, 2004, and the Affidavit of Service indicating both were personally served with the Amended Motion on Father on March 10, 2004. These documents also identify April 5, 2004 as the hearing date on which Father is to appear. Father was personally served with notice of the hearing on the Amended Motion, but he did not appear for the hearing. The family code authorizes a default judgment to be entered in these circumstances. See Tex. Fam. Code 157.066. We overrule Father's second point of error.
Next, Father complains that the trial court erroneously granted the Amended Motion because it was incomplete and did not afford him specific notice of Mother's complaints. Specifically, Father avers that page 3 of the Amended Motion is missing. The Amended Motion in the record includes page 3 and all other pages of the motion. We overrule Father's third point of error.
Father includes in this argument his charge that the allegations of the Amended Motion did not provide him with "full and unambiguous notification" of the grounds for which contempt was sought. Mother did not seek to have Father held in contempt, and he was not held in contempt. Accordingly, we need not address whether or not the Amended Motion would have sufficed to support a contempt holding.
Father's fourth and fifth points of error complain that the trial court's order does not conform to Mother's pleading and proof and that her proof was insufficient to support the order. The Amended Motion sought a money judgment for Father's arrearage in three areas: child support, insurance premiums, and reimbursement for uninsured medical expenses. The Amended Motion sought a total of $17,410.24 for these three categories, but at the hearing Mother offered evidence of a lesser amount, $11,794.12. The evidence was in the form of a written exhibit, listing Father's monthly obligations in each of the three categories, the amounts he had paid, and the balance due. Mother testified that the exhibit was a good and accurate summary of amounts owed but unpaid by Father. The trial court ordered payment by Father in the amount of $11,794.12, the precise amount proved by Mother. We find no fatal variance between the theories of recovery pleaded by Mother, her proof, and the trial court's award. See In re Canales, 113 S.W.3d 56, 66 (Tex. Rev. Trib. 2003) (variance between pleadings and proof is fatal only if divergence is substantial, misleading, and prejudicial); see also Vincent v. Bank of America, N.A., 109 S.W.3d 856 (Tex.App.-Dallas 2003, pet. denied) (variance problem when theory of recovery not pleaded).
The Amended Motion also sought recovery of costs and attorney's fees, both of which the trial court granted. We do not understand Father to complain of these awards.
Father's sufficiency argument appears to be directed primarily at the source of the amounts included in Mother's summary, particularly to the amount of the child support payments and when the obligation to make those payments arose. The record makes clear that the trial court was aware of and considered evidence Father had presented at the earlier hearing concerning his income and date of release from prison. By failing to appear, Father waived the opportunity to offer contradictory evidence. We conclude Mother's evidence was sufficient, legally and factually, to support the trial court's order in this cause. See City of Keller v. Wilson, No. 02-1012, slip op. at 1-2, 2005 WL 1366509, at *1 (Tex., June 10, 2005) (legal sufficiency standard); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (factual sufficiency standard).
We overrule Father's fourth and fifth points of error.
We affirm the trial court's order.