Opinion
No. 04-10-00284-CV
Delivered and Filed: June 8, 2011.
Appealed from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 2009-CI-03521, Honorable Antonia Arteaga, Judge Presiding.
Affirmed.
Sitting: SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice, MARIALYN BARNARD, Justice.
OPINION
Appellant Vilma Granado appeals an order against Appellee Pedro C. Meza for $500.00 in unpaid child support. Granado raises several issues: (1) Meza failed to timely respond to her Notice of Application for Judicial Writ of Withholding; (2) the judgment of $500.00 was inadequate and not based on sufficient evidence; and (3) the trial court erred in failing to award attorney's fees. In a cross-point, Meza raises a statute of limitations defense. We affirm the trial court's order.
Granado asks that we abate this appeal if we believe that we need findings of fact to determine the merits of Granado's issues. Because we do not, we decline to abate the appeal.
BACKGROUND
In 1982, the 319th District Court in Nueces County determined Meza to be the biological father of Pedro Louis De La Cruz, born November 4, 1980, and ordered Meza to make monthly child support payments. According to Meza, although he was personally served with the paternity order, he was not actually aware of his child support obligation until the 1990s when the Attorney General contacted him. Meza then made child support payments as per the Attorney General's requests.
On February 16, 2009, Granado filed liens with several of Meza's financial institutions in Bexar County, causing Meza's assets to be frozen. The next day, Granado filed a Notice of Application for Judicial Writ of Withholding under subchapter D of chapter 138 of the Texas Family Code in Nueces County. The Notice of Application stated that Meza was $54,343.30 in arrears.
On March 2, 2009, pursuant to section 157.323 of the Texas Family Code, Meza filed an original proceeding and motion to stay enforcement of child support liens in the 225th District Court in Bexar County challenging the amount stated in the lien. On March 10th, an expedited hearing on Meza's motion and original proceeding was held in Bexar County during which Meza allegedly first became aware of his receipt of the Notice of Application. He then immediately filed a motion to stay issuance of the judicial writ of withholding in Nueces County. At the March 10th hearing the court stayed the enforcement of some of the child support liens, but did not resolve any of the issues.
Meza claimed he was unaware of his receipt of the Notice of Application because he received it amidst seventeen other notices of child support liens.
Following the hearing, the parties filed, in Nueces County, an agreed motion to transfer venue of the application for judicial withholding action to Bexar County. Granado also filed a motion to consolidate the two cases and a supplemental original answer in Bexar County. Granado's supplemental answer objected to Meza's untimely defenses asserted against the issuance of the judicial writ of withholding, and requested that the trial court determine Meza's arrears and award Granado attorney's fees. Trial on Meza's original proceeding and motion to stay enforcement of child support lien and Granado's request for affirmative relief was set for March 27.
Ultimately, the two cases were consolidated in Bexar County by agreement.
At trial, the parties presented evidence and arguments regarding the issues raised under Chapter 157, including Meza's payments and the actual amount in arrears, and issues raised under subchapter D of Chapter 158, including whether Meza's motion to stay issuance of the judicial writ of withholding was timely. In January 2010, the trial court issued its order, finding that Granado's action was not barred by limitations and that Meza was $500 in arrears and accrued $23.51 in interest from the date of trial. The trial court also released all child support liens against Meza and ordered each party to bear the costs of their respective attorney's fees. Both parties appeal.
STATUTE OF LIMITATIONS
In a cross-point, Meza appeals the trial court's finding that the statute of limitations regarding the child support had not yet run. "A party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal." TEX. R. APP. P. 25.1(c). "The appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause." Id. Because Meza did not file a notice of appeal and has not given us reason to find just cause, Meza has waived his right to raise the complaint in his cross-point. See Soefje v. Jones, 270 S.W.3d 617, 631 (Tex. App.-San Antonio 2008, no pet.) (holding that failure to file notice of appeal waived cross point).
JUDICIAL WRIT OF WITHHOLDING
Granado argues that because Meza failed to timely file his motion to stay issuance of the judicial writ of withholding, the trial court lacked jurisdiction to consider Meza's defense to the amount in arrears. Even if Meza failed to timely file his motion to stay under subchapter D of Chapter 158, Meza's challenge to the amount in arrears was properly before the court under Chapter 157 because both Granado and Meza requested relief under section 157.323. See TEX. FAM. CODE ANN. § 157.323 (West 2008) (noting obligor may dispute the amount of arrearages stated in the lien and providing that procedures generally applicable to motions for enforcement apply); id. § 157.061 (setting forth procedure for setting hearing). We thus turn to whether the trial court's determination of arrearages was supported by the evidence.
ARREARAGE DETERMINATION
A. Standard of Review Applicable Law
Granado next argues that the evidence does not support the trial court's arrearage determination and that the trial court erroneously ignored its ministerial duty to independently calculate arrears. We review a determination of child support arrears for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court rendering a money judgment lacks discretion to "reduce or modify an amount of child support arrearages. TEX. FAM. CODE ANN. § 157.262(a) (West 2008). In confirming the amount due, the trial court has a ministerial duty to confirm the amount in arrears. In re M.C.R., 55 S.W.3d 104, 109 (Tex. App.-San Antonio 2001, no pet.). However, the record in this case contains no prior judicial confirmation or determination of arrears, and Granado and Meza's disagreement over the amount of arrears is the crux of their dispute.
Although Meza argues that no evidence supports the award of $500, this challenge fails for the same reason his statute of limitations cross-point fails. See supra.
"When, as here, the trial court conducts a bench trial, but files no findings of fact and conclusions of law, we may infer that the trial court made all findings necessary to support its judgment." George v. Jeppeson, 238 S.W.3d 463, 468 (Tex. App.-Houston [1st Dist.] 2007, no pet.); see also Worford, 801 S.W.2d at 109. "We presume, therefore, that the trial court found all questions of fact in support of the judgment, and we must affirm if the judgment can be upheld on any legal basis supported by the pleadings and the evidence." George, 238 S.W.3d at 468-69 (citing Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987) (per curiam); Worford, 801 S.W.2d at 109). When reviewing an order resulting from a trial court's resolution of disputed facts, we defer to the trial court's determinations of the credibility of the witnesses, and we will not substitute our judgment for that of the trial court. Id. at 468.
Granado argues that the evidence shows she is entitled to much more than $500. In seeking a judicial determination of the amount in arrears, the obligee has the burden to prove that the obligor's child support obligation exceeds the amount the obligor has paid. See In re M.P.M., 161 S.W.3d 650, 656 (Tex. App.-San Antonio 2005, no pet.). To determine whether the trial court abused its discretion in resolving a dispute over an amount in arrears, we consider and weigh all the evidence to determine whether or not the finding is "so against the great weight and preponderance of the evidence as to be manifestly unjust." Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); see also In re C.Z.B., 151 S.W.3d 627, 630 (Tex. App.-San Antonio 2004, no pet.).
B. Meza's Child Support Obligation Payments
To support the amount of Meza's child support obligation, Granado relied on the 1982 Order in Suit to Establish Paternity of Child ordering Meza to make monthly payments of $60 until the child reached the age of eighteen. The parties agree that this child support order was never modified. Accordingly, the evidence establishes Meza's total child support obligation as $11,520.
Although Meza testified that he did not know of the child support order, he admitted to having been aware of the establishment of his paternity, and the child support order recites that he was personally served. See Litton v. Waters, 161 S.W.2d 1095, 1096 (Tex. Civ. App.-San Antonio 1942, writ ref'd) ("[R]ecital of due citation . . . must be considered valid, unless and until it is set aside by direct proceedings instituted for that purpose.").
Meza and Granado dispute whether Meza satisfied this obligation. Melissa Munoz, an employee in the Attorney General's child support division, testified that the Attorney General closed Meza's case in 2002 because it had determined that Meza owed less than $500 in child support. Meza testified that he stopped making payments because the Attorney General told him that he owed no more money and that it had closed his case. Thus, there is some evidence to support the trial court's finding that Meza was $500 in arrears.
Granado argues that the Attorney General mistakenly closed Meza's case. To support this contention, Granado points to a Child Support Disbursement Unit (SDU) Payment Record detailing payments Meza had made to the Attorney General. This record shows that between January 1, 1982, and December 2009, Meza made twelve payments totaling $5,143.76. The record notes, "You may need to contact a local child support registry to ensure a complete payment record is obtained for the specified Case/Cause numbers, if the Office of the Attorney General was not the Non-Custodial Parent's payment registry before the SDU began processing payments." The record was introduced during Munoz's testimony. She testified that she did not work in the office where this record was kept, and that she lacked personal knowledge as to whether this was a complete list of the payments Meza had made. There was also no other evidence that the Office of the Attorney General was the only payment registry before the SDU began processing payments. The burden was on Granado to prove the amount of arrearages, and she failed to establish that the attorney general's record was a complete record of all of Meza's payments.
Meza argues that this document was not properly authenticated, but counsel for Meza at trial stated "no objection" to the admission of this record for the purposes of showing the payments received by the SDU.
Granado finally argues that Meza's testimony proves the accuracy of the attorney general's payment record. Meza never testified regarding the payment record. He testified that he made payments to the attorney general and another entity. Meza stated, "All I did was pay the attorney general," but then explained, "I mean, I don't know if there was another entity involved." He testified that everything he paid went to "just Corpus Christi," but only "guessed" that these payments went to the attorney general. Meza's testimony, based on his recollection of events from ten to fifteen years ago, does not establish the accuracy of the attorney general's payment record.
Granado did not establish the completeness of the attorney general's record. Meza's evidence that the attorney general stated he owed nothing, and evidence that the Attorney General closed the case because Meza owed less than $500, conflicts with Granado's evidence of the attorney general's payment record showing that Meza paid only $5,143.76. Because we must defer to the trial court's credibility determinations, we cannot say the trial court's finding is against the great weight and preponderance of the evidence.
Granado argues that Meza's affirmative defenses of estoppel, quasi-estoppel, laches, and statute of limitations are inapplicable in this case. To reverse on this issue, we must conclude that the complained of error probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1. Because we hold that the trial court's arrearage determination is supported by sufficient evidence, Meza's affirmative defenses are moot.
ATTORNEY'S FEES
Lastly, Granado argues that the trial court erred by failing to award Granado attorney's fees under section 157.167 of the Texas Family Code. "The availability of attorney's fees under a particular statute is a question of law for the court." Holland v. Wal-Mart Stores, 1 S.W.3d 91, 94 (Tex. 1999). We therefore review this issue de novo. El Paso Natural Gas Co. v. Minco Oil Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999).
Chapter 157 of the Texas Family Code generally provides rules governing motions to enforce child support obligations. See generally TEX. FAM. CODE ANN. tit. 5, subtit. B, ch. 157 (West 2008 Supp. 2010). Under section 157.167(a), "[i]f the court finds that the respondent has failed to make child support payments, the court shall order the respondent to pay the movant's reasonable attorney's fees and all court costs in addition to the arrearages." TEX. FAM. CODE ANN. § 157.167(a) (West 2008).
At trial, counsel for Granado admitted on cross-examination that she was not seeking attorney's fees for any enforcement action. Granado argues that she is still entitled to attorney's fees for a writ of withholding, but Granado cites no authority supporting her position. Moreover, nothing in subchapter D of Chapter 158 provides that a trial court may or must award attorney's fees for filing a notice of application for judicial writ of withholding. Therefore, the trial court did not err in refusing to award attorney's fees to Granado.
All of her cited authorities are distinguishable. See Taylor v. Speck, 308 S.W.3d 81, 87 (Tex. App.-San Antonio 2010, no pet.) (holding that section 157.167 provides attorney's fees in cumulative money judgment cases); In the Interest of C.Z.B., 151 S.W.3d 627, 634 (Tex. App.-San Antonio 2004, no pet.) (same); In the Interest of Nichols, 51 S.W.3d 303, 308 (Tex. App.-San Antonio 2000, no pet.) (involving only an enforcement action under Chapter 157).
CONCLUSION
Finding no reversible error, we affirm the trial court's order.