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stating amounts that are included in cumulative money judgment for child support arrearages
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No. 04-20-00575-CV
03-30-2022
In the INTEREST OF A.R.G., a Child
APPELLANT ATTORNEY: Sydney Grossman, Bineham & Gillen, PLLC, 9002 Western View, Helotes, TX 78023, James Gillen Jr., William Douglas Bineham, Bineham & Guillen, PLLC, 8632 Fredericksburg Rd., Ste. 208, San Antonio, TX 78240. APPELLEE ATTORNEY: Michael J. Moore, Office of the Attorney General, P.O. Box 12017, Austin, TX 78711-2548, Deterrean Gamble, Matthew Deal, Office of the Attorney General of Texas, Child Support Division, P.O. Box 12017, Mail Code 038-1, Austin, TX 78711, Alfredo G Ramirez, Ramirez Law Firm, 221 E. Locust St., San Antonio, TX 78212-3955.
APPELLANT ATTORNEY: Sydney Grossman, Bineham & Gillen, PLLC, 9002 Western View, Helotes, TX 78023, James Gillen Jr., William Douglas Bineham, Bineham & Guillen, PLLC, 8632 Fredericksburg Rd., Ste. 208, San Antonio, TX 78240.
APPELLEE ATTORNEY: Michael J. Moore, Office of the Attorney General, P.O. Box 12017, Austin, TX 78711-2548, Deterrean Gamble, Matthew Deal, Office of the Attorney General of Texas, Child Support Division, P.O. Box 12017, Mail Code 038-1, Austin, TX 78711, Alfredo G Ramirez, Ramirez Law Firm, 221 E. Locust St., San Antonio, TX 78212-3955.
Sitting: Rebeca C. Martinez, Chief Justice, Irene Rios, Justice, Lori I. Valenzuela, Justice
Opinion by: Irene Rios, Justice
Appellant Pete Salazar appeals the trial court's order suspending his driver's license and motor vehicle registrations for failure to pay overdue child support. Salazar argues: (1) the trial court did not have jurisdiction to hear the motion to enforce because it was filed more than two years after the child support obligation terminated; and (2) the statutory requirements to suspend his license were not met because the amounts owed under a retroactive child support judgment are not "overdue." In his third issue, Salazar claims the trial court's confirmation of arrears and cumulative money judgment causes him to improperly pay compounded interest on a previous retroactive child support judgment.
BACKGROUND
On June 21, 2012, the Texas Office of the Attorney General ("the OAG") filed a petition to establish the parent-child relationship of A.R.G. asserting Karisha Gomez ("Mother") was the mother of the child and Pete Salazar ("Father") was the father of the child. On August 2, 2012, the trial court entered an order establishing the parent-child relationship of the two parents ("the SAPCR Order"). A.R.G. was fifteen years old when the order was rendered. Relevant to this appeal, the SAPCR order established Father's current child support obligations and retroactive child support obligations and rendered a cumulative money judgment in favor of the OAG for the retroactive child support. The child support obligations created by the SAPCR Order are as follows:
The SAPCR Order also established Father's current medical support obligations and rendered a cumulative money judgment for retroactive medical support. We refer to the child support obligations and medical support obligations collectively as "child support" throughout the opinion.
1. Retroactive Child Support is ordered:
a. For the period between June 21, 2008 and August 1, 2012;
b. In the amount of $13,107.00;
c. Judgment rendered in favor of the OAG for $13,107.00 with interest at 6% per annum;
d. Father is required to pay $115 each month towards the retroactive child support judgment starting September 1, 2012 until the judgment is paid in full.
e. If the retroactive child support judgment is not paid off by the time his current child support obligation ends, then the payments increase to $372.53 per month.
2. Retroactive Medical Support is ordered:
a. For the period between August 1, 2009 and August 1, 2012;
b. In the amount of $3,600.00;
c. Judgment rendered in favor of the OAG for $3600.00 with interest at 6% per annum;
d. Father is required to pay $50 each month towards the retroactive medical support judgment starting September 1, 2012 until the judgment is paid in full.
3. Current Child Support is ordered:
a. In the amount of $257.00 each month;
b. Until the child attains the age of 18 and graduates from high school, whichever occurs later.
4. Current Medical Support is ordered:
a. In the amount of $144.00 each month;
b. 50% of additional medical expenses incurred that are not covered by health insurance;
c. Until the child attains the age of 18 and graduates from high school, whichever occurs later.
A.R.G. turned eighteen on December 2, 2014 and graduated from high school in June 2015. Thus, Father's current child support obligations ended in June 2015.
On May 27, 2020, Mother filed a "Petition for Suspension of License for Failure to Pay Child Support and to Confirm Arrears." The petition requested the trial court suspend Father's driver's license and Father's motor vehicle registrations under chapter 232 of the Texas Family Code because Father owed $20,949.81 in overdue child support. The petition further requested the trial court to confirm the amount of arrearages and render one cumulative money judgment—including the outstanding current child support, the amounts owed under the previous retroactive support judgment, and the accumulated interest—in favor of Mother. On August 11, 2020, the trial court held a hearing on Mother's petition in which Mother, Father, and the OAG appeared.
At the time of the hearing, Mother presented the trial court with the Attorney General's financial activity report showing Father owed $16,345.57 for child support, including interest, and $5,804.24 for medical support, including interest. See Tex. Fam. Code Ann. § 157.162(c) ("The movant may attach to the motion a copy of a payment record [and] may subsequently update that payment record at the hearing ... to prove ... the cumulative arrearage as of the final date of the record."). The sum of these two amounts is $22,149.80.
The trial court confirmed child support arrears in the amount of $16,345.57 and rendered a cumulative money judgment in favor of Mother for that amount with 6% interest per annum accruing on the judgment until it is fully paid. The trial court also confirmed medical support arrears in the amount of $5,804.24 and rendered a cumulative money judgment in favor of Mother for that amount with 6% interest per annum accruing on the judgment until it is fully paid.
Finally, the trial court concluded the outstanding balance, including the amounts owed under the retroactive support judgment, was considered "overdue" child support and granted Mother's petition to suspend Father's license. The trial court rendered an order suspending Father's driver's license and motor vehicle registrations. The trial court's order also stayed the suspensions so long as Father paid $300 per month towards the child support judgment and $100 per month towards the medical support judgment. Father appealed.
We refer to the suspension of Father's driver's license and motor vehicle registrations collectively as a license suspension throughout the opinion.
JURISDICTION
In his first issue, Father argues the trial court's order suspending his license is a contempt order and the trial court did not have jurisdiction to render the order because it was filed more than two years after the child support obligation terminated. See TEX. FAM. CODE ANN. § 157.005(a)(2) ("The court retains jurisdiction to render a contempt order for failure to comply with the child support order if the motion for enforcement is filed not later than the second anniversary of the date ... on which the child support obligation terminates under the order ....").
In response, the OAG argues the petition to suspend license is an enforcement remedy that does not invoke the trial court's contempt powers and is, therefore, unaffected by subsection 157.005(a)’s two-year limitation on jurisdiction. Therefore, the OAG argues, the trial court had jurisdiction to hear the petition for suspension of license.
The OAG filed a brief in response to Father's appeal. Mother simply adopts the OAG's arguments presented in its brief.
Standard of Review
"Subject matter jurisdiction concerns the kinds of controversies a court has the authority to resolve as determined by the constitution, jurisdictional statutes, and the pleadings." Taylor v. Speck , 308 S.W.3d 81, 84 (Tex. App.—San Antonio 2010, no pet.). "It is essential to the authority of a court to decide a case." Id. "Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review." Id.
Applicable Law and Analysis
"The court retains jurisdiction to render a contempt order for failure to comply with the child support order if the motion for enforcement is filed not later than the second anniversary of the date: (1) the child becomes an adult; or (2) on which the child support obligation terminates under the order or by operation of law." TEX. FAM. CODE ANN. § 157.005(a). The statute clearly confines its application to contempt orders, not all orders. See In re C.J.N.-S. , 540 S.W.3d 589, 591 (Tex. 2018) ("[C]ourts presume the [l]egislature intended for all the words in a statute to have meaning and for none of them to be useless.").
"Section 157.005 limits the trial court's power to hear a case; it is not a statute of limitations." In re Cannon , 993 S.W.2d 354, 356 n.2 (Tex. App.—San Antonio 1999, original proceeding).
"The punishment for contempt of a court ... is a fine of not more than $500 or confinement in the county jail for not more than six months, or both such a fine and confinement in jail." TEX. GOV'T CODE ANN. § 21.002(b). By definition, contempt orders are limited to those orders that assess monetary fines or incarcerate an individual for failure to follow a court order. See In re Acceptance Ins. Co. , 33 S.W.3d 443, 450 (Tex. App.—Fort Worth 2000, orig. proceeding) (distinguishing between a hearing for contempt and a hearing for sanctions and holding "[c]ontempt proceedings, in contrast [to a hearing for sanctions], are by definition limited to monetary fines or incarceration").
Here, the trial court's order did not assess monetary fines, nor did it incarcerate Father for failure to follow the SAPCR Order. Accordingly, the trial court's order suspending Father's license cannot be considered a contempt order. Rather, it is an alternative enforcement remedy that is not subject to the jurisdictional limitations of subsection 157.005(a) of the Texas Family Code. See In re C.G. , 261 S.W.3d 842, 848 (Tex. App.—Dallas 2008, no pet.) ("License suspension under chapter 232 is a child support enforcement remedy.").
We recognize the Texas Supreme Court has previously stated "a trial court may use its contempt power as set forth in [c]hapter 157—including the possibilities of confinement, garnishment of wages, and suspension of the obligor's driver's license—to ensure that child support obligors pay overdue child support." Tucker v. Thomas , 419 S.W.3d 292, 297 (Tex. 2013). However, the issue of whether an order suspending the obligor's license is a contempt order was not before the Tucker court; the statement is dicta and is not binding authority. See Cont'l Cas. Ins. Co. v. Functional Restoration Assocs. , 19 S.W.3d 393, 400 n.6 (Tex. 2000) ; see also Tucker , 419 S.W.3d at 293 ("In this case, we consider whether a trial court has authority to order a parent to pay attorney's fees as additional child support in a non-enforcement modification suit ...."). Moreover, the license-suspension provisions are found in chapter 232 of the Texas Family Code, not chapter 157.
Chapter 157 of the Texas Family Code also indicates a contempt order and other enforcement remedies are distinct from one another because the code specifically allows for simultaneous enforcement remedies in addition to seeking an order for contempt of court. See TEX. FAM. CODE ANN. § 157.162(b) ("A finding that the respondent is not in contempt does not preclude the court from awarding the petitioner court costs and reasonable attorney's fees or ordering any other enforcement remedy ...."). Further, the caselaw draws a distinction between a court's jurisdiction to issue a contempt order and the court's jurisdiction to enforce child support through other enforcement remedies. See, e.g., In re Cannon , 993 S.W.2d 354, 356 n.2 (Tex. App.—San Antonio 1999, original proceeding) ("[T]he time restraints of section 157.005 are unrelated to the time restraints for the income withholding remedy."); C.G. , 261 S.W.3d at 848 ("License suspension under chapter 232 is a child support enforcement remedy.").
See Tex. Fam. Code Ann. § 157.002(b) (stating the requirements of a motion for enforcement of child support and, "if contempt is requested, [requiring the motion to] include the portion of the order allegedly violated and, for each date of alleged contempt, the amount due and the amount paid, if any"); id. § 157.002(d) ("The movant is not required to plead that the underlying order is enforceable by contempt to obtain other appropriate enforcement remedies."); id. § 157.003(b) ("A motion for enforcement does not constitute an election of remedies that limits or precludes ... the use of any other civil or criminal proceeding to enforce a final order[.]"); id. § 157.166(b)–(c) ("If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain findings identifying, setting out, or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent's failure to comply with the order was found to constitute criminal contempt.... If the enforcement order imposes incarceration for civil contempt, the order must state the specific conditions on which the respondent may be released from confinement.").
Therefore, we hold an order suspending a license for failure to pay overdue child support is not a contempt order and is, therefore, not subject to subsection 157.005(a)’s two-year limitation on jurisdiction. Accordingly, Father's first issue is overruled.
LICENSE SUSPENSION
In his second issue, Father argues the statutory requirements for license suspension under section 232.003 of the Texas Family Code were not met because the trial court improperly considered child support owed under his retroactive support judgment as "overdue." Father alternatively argues—because the payment plan for retroactive support in the SAPCR Order was not a payment plan toward "overdue" child support—he has not been provided an opportunity to make payments toward the overdue child support under a court-ordered or agreed repayment schedule.
The OAG argues the retroactive judgment in the SAPCR Order became overdue the moment it was rendered and the SAPCR Order was a payment plan toward this "overdue" child support. Therefore, the OAG argues, the statutory requirements under section 232.002 were met and the trial court did not abuse its discretion when it ordered suspension of Father's license.
Standard of Review
Our decision as to the propriety of the trial court's order turns on the meaning of the statutory language in section 232.003 of the Texas Family Code. See In re R.C.T. , 294 S.W.3d 238, 241 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). "We review issues of statutory construction de novo." Tex. Lottery Comm'n v. First State Bank of DeQueen , 325 S.W.3d 628, 635 (Tex. 2010). "In construing statutes[,] our primary objective is to give effect to the [l]egislature's intent." Id. "We rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results." Id. "We presume the [l]egislature selected language in a statute with care and that every word or phrase was used with a purpose in mind." Id.
Applicable Law and Analysis
Section 232.003 of the Texas Family Code provides that a court "may issue an order suspending a license as provided by this chapter if an individual who is an obligor: (1) owes overdue child support in an amount equal to or greater than the total support due for three months under a support order; (2) has been provided an opportunity to make payments toward the overdue child support under a court-ordered or agreed repayment schedule; and (3) has failed to comply with the repayment schedule." TEX. FAM. CODE ANN. § 232.003(a).
We are unable to locate authority and the parties have not directed us to any authority construing the meaning of the word "overdue" under the Texas Family Code. "In the absence of a statute or controlling case law defining the terms used in a statute, we apply the ordinary and generally accepted common meaning of the words used." R.C.T. , 294 S.W.3d at 241. "[O]verdue" is defined as "not paid by the appointed time [or] unpaid beyond the proper time of payment[.]" Overdue , BLACK'S LAW DICTIONARY (11th ed. 2019).
The trial court may order a parent to pay retroactive child support if the parent has not previously been ordered to pay support for the child and was not a party to a suit in which support was ordered. TEX. FAM. CODE ANN. § 154.009(a). Here, the SAPCR Order was the first order establishing Father's obligation to pay child support and the trial court also ordered Father to pay retroactive child support in the SAPCR Order.
The appointed time of payment for retroactive child support was established by the payment plan in the SAPCR Order. The SAPCR Order established that payments toward the retroactive child support should be paid monthly, starting September 1, 2012, until the retroactive child support judgment was paid in full. Using the common meaning of the word "overdue," a payment of Father's retroactive child support became overdue when he failed to pay the retroactive child support by the appointed time. In other words, a retroactive child support payment became overdue when it remained unpaid beyond the time payment was ordered under the retroactive child-support payment plan in the SAPCR Order. Thus, contrary to the OAG's argument, payment for the retroactive child support could not have been overdue immediately upon rendition of the retroactive child support judgment because the time for payment of the retroactive child support did not commence until September 1, 2012. Father must have missed scheduled payments of the retroactive child support—under the payment schedule established in the SAPCR Order—before those payments towards the retroactive child support could become overdue.
Using the common definition of the words, our sister court has held child support is "due and owing" when it is immediately enforceable and is yet to be paid. See R.C.T. , 294 S.W.3d at 243 (interpreting "due and owing" in the child support lien statute). The R.C.T. court further held that retroactive child support is "due and owing" because, in that case, a retroactive support judgment was immediately enforceable and yet to be paid. Id. However—without defining the term "overdue"—the R.C.T. court opined the term "due and owing" has a broader meaning than the term "overdue" in the family code. Id. (citations omitted) ("[T]he legislature changed the statutory language from ‘overdue support’ to amounts ‘due and owing[ ]’ [and,] [w]ith this amendment ..., the legislature broadened the scope of the child-support lien statute to include all amounts of child support due and owing, and not merely those amounts that are overdue.").
Here, the trial court equated child support that is "overdue" with child support that is "due and owing." While the retroactive support judgment in this case may have been "due and owing" when it was rendered in the SAPCR order, it could not have been "overdue" until Father failed to make a payment by the appointed time. The trial court erred when it used an overly broad interpretation of the meaning of "overdue." This interpretation resulted in the trial court finding the entire outstanding balance on the Attorney General's financial activity report ("the financial report")—including the amounts due and owing under the retroactive child support judgment—was overdue.
The trial court's order suspending Father's license and the trial court's findings of fact and conclusions of law both state: "Respondent owes overdue child support of $16,345.57 and medical support of $5,804.24 for a period through April 30, 2020, which the Court finds to be equal to or greater than the support due for three months under the support order." The trial court did not delineate the amounts that were due and owing, i.e. , the amounts that were immediately enforceable and yet to be paid, from the amounts that were overdue, i.e. , the amounts that were not paid by the proper time. Instead, the trial court categorically determined the entire outstanding balance shown by the financial report was overdue.
The trial court used the amount that was "due and owing" rather than the "overdue" amount required by the statute when it determined the remaining balance on the financial report was equal to or greater than the total support due for three months under the SAPCR Order. See TEX. FAM. CODE ANN. § 232.003(a)(1) ("A court ... may issue an order suspending a license as provided by this chapter if an individual who is an obligor ... owes overdue child support in an amount equal to or greater than the total support due for three months under a support order[.]"). As a result, the trial court did not comply with the requirements of section 232.003 and erred when it suspended Father's license. Accordingly, we sustain Father's second issue and reverse the portion of the trial court's order suspending Father's driver's license and motor vehicle registrations.
COMPOUNDING INTEREST
In his third issue, Father argues the confirmation of arrears and rendition of the cumulative money judgment improperly causes him to pay interest on the post-judgment interest that had already accrued on his retroactive child support judgment. In essence, Father argues a cumulative money judgment that includes interest on an already existing retroactive child support judgment is an improper compounding of interest when interest is assessed on the cumulative money judgment. The OAG argues Father's third issue is without merit because the trial court acted in accordance with the express requirements of the Texas Family Code.
Standard of Review
"We will not disturb a court's order of enforcement for child support, including a judgment confirming an arrearage, unless the appellant shows a clear abuse of discretion." In re A.S.G. , 345 S.W.3d 443, 449 (Tex. App.—San Antonio 2011, no pet.). "A trial court abuses its discretion as to facts when it acts arbitrarily and unreasonably, and as to legal matters when it acts without reference to guiding rules." Id. A trial court has no discretion in determining what the law is or applying the law to the facts. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding).
Applicable Law and Analysis
"If a motion for enforcement of child support requests a money judgment for arrearages, the court shall confirm the amount of arrearages and render one cumulative money judgment." TEX. FAM. CODE ANN. § 157.263(a). "A cumulative money judgment includes: (1) unpaid child support not previously confirmed; (2) the balance owed on previously confirmed arrearages or lump sum or retroactive support judgments; (3) interest on the arrearages; and (4) a statement that it is a cumulative judgment." Id. § 157.263(b).
In 2021, the legislature amended section 157.263 of the Texas Family Code. See Acts of June 17, 2011, 82nd Leg., R.S., ch. 508, 2011 Tex. Gen. Laws 1265, 1265 (amended 2021) (current version Tex. Fam. Code Ann. § 157.263 ). The previous version of the statute required the trial court to render a single cumulative money judgement for child support arrears upon request. See id. The current statute requires the trial court to render three separate cumulative money judgments upon request: (1) one for child support owed; (2) one for medical support owed; and (3) one for dental support owed. See Tex. Fam. Code Ann. § 157.263. We apply the previous version of the statute because this appeal was pending before the legislature amended section 157.263 of the Texas Family Code. See Bilinsco Inc. v. Harris Cnty. Appraisal Dist. , 321 S.W.3d 648, 650 n.1 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
"An ‘arrearage’ is ‘the quality, state, or condition of being behind in the payment of a debt or the discharge of an obligation.’ " Ochsner v. Ochsner , 517 S.W.3d 717, 720 (Tex. 2016) (alterations omitted) (quoting Arrearage , BLACK'S LAW DICTIONARY (10th ed. 2014)). "Thus an arrearage in the child-support context occurs when an obligor has not satisfied his obligation." Ochsner , 517 S.W.3d at 720. "According to section 157.263, however, the trial court is not merely to confirm the arrearages; rather it must confirm the amount of arrearages." Id. (emphasis in original) (quotation marks omitted). "An ‘amount,’ in the realm of arrearage, is a principal sum and the interest on it." Id. (quotation marks omitted).
Further, "[a]ccrued interest is part of the child support obligation and may be enforced by any means provided for the collection of child support." TEX. FAM. CODE ANN. § 157.267. Accordingly, this court has held "[a]ccrued interest is clearly part of the child support obligation which is to be reduced to a money judgment." In re M.C.R. , 55 S.W.3d 104, 109 (Tex. App.—San Antonio 2001, no pet.). In addition, section 157.265 of the Texas Family Code requires interest to accrue on child support arrearages that have been confirmed and reduced to a money judgment at the rate of six percent simple interest per year from the date the order is rendered until the judgment is paid. See TEX. FAM. CODE ANN. § 157.265(b).
Here, the trial court acted in accordance with section 157.263 which clearly requires both the principal amount of a retroactive support judgment and the interest accrued on the arrearage to be incorporated into the final cumulative money judgment. Id. § 157.263(b). Moreover, the interest accrued on Father's retroactive support judgment became a part of the underlying child support obligation. See M.C.R. , 55 S.W.3d at 109. As required by section 157.265, the trial court assessed interest at a rate of six percent simple interest on the arrears that were reduced to a cumulative money judgment under section 157.263. TEX. FAM. CODE ANN. § 157.265(b). Because the trial court rendered a cumulative money judgment in accordance with the Texas Family Code, it did not abuse its discretion. Accordingly, Father's third issue is overruled.
CONCLUSION
We affirm the portion of the trial court's order confirming arrears and reducing the arrears to a cumulative money judgment. We reverse the portion of the trial court's order suspending Father's driver's license and motor vehicle registrations and remand the case to the trial court for further proceedings consistent with this opinion.