Opinion
No. 05-19-00867-CV
05-27-2020
IN THE INTEREST OF J.A., C.D.A., AND T.A., CHILDREN
On Appeal from the 382nd Judicial District Court Rockwall County, Texas
Trial Court Cause No. 1-09-785
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Reichek
Opinion by Justice Myers
Father appeals the trial court's order determining the amount of his child-support arrearage. Father brings fourteen issues on appeal. However the only issue relevant to the order on appeal is that the trial court erred in its determination of the amount of the child-support arrearage. We affirm the trial court's judgment.
BACKGROUND
Mother and Father were married in 1997 and divorced in 2009. At the time of the divorce, they had six minor children. The divorce decree ordered Father to pay child support of $1,500 per month until the final child reached the age of eighteen years. The decree also ordered Father to pay Mother contractual alimony of $1,165 per month. The decree required Father to provide the children's health insurance.
On October 10, 2018, Father filed this suit to modify the divorce decree requesting that the amount of child support be reduced. Father asserted his income was reduced and he was paying more child support than would be required by the statutory guidelines. By this time, two of the children had reached the age of eighteen, and a third turned eighteen ten days later.
On October 23, 2018, Mother filed a general denial to Father's petition and a counterpetition and motion for enforcement of the decree, alleging Father was $10,500 in arrears for child support, had never paid the contractual alimony, and was $126,036 in arrears for alimony.
On April 2, 2019, the Office of Attorney General (OAG) filed a counterpetition in the suit alleging Father owed child support of $18,309.86. The OAG requested that the trial court enter judgment against Father for the child support.
The trial court held a bench trial on July 16, 2019. Father testified that he had filed for disability payments with the Social Security Administration and was determined to be disabled from April 2018. Mother testified she was receiving checks from the Administration for $417 per month for child support. Mother testified she had also received a lump-sum payment of $3,300 in December 2018 for child support from the Administration. Father ceased to pay the children's health insurance in April 2018, and the children were enrolled in Medicaid.
This amount was disputed. Father testified Mother received $556 per month.
Father argues Mother received a lump-sum payment of $4,760.
The trial court determined that Father's child-support arrearage was $10,585.37. The trial court offset that amount by the Administration's $3,300 lump-sum payment to Mother, and the court determined the arrearage he owed was $7,285.37. The trial court ordered Father to pay that amount at $70 per month. The court also ordered Father to pay Mother $25 per month for medical support. Because Mother received $417 per month as child support from the Administration due to Father's disability, the trial court modified the amount of Father's child support to $0.
MODIFICATION OF CHILD SUPPORT
In his fourteenth issue, Father contends the trial court erred by determining Father's child-support arrearage was $7,285.37.
Standard of Review
A trial court's determination of child-support arrearages is reviewed for an abuse of discretion. See Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.—Dallas 2005, no pet.). A trial court abuses its discretion when it acts "without reference to any guiding rules and principles"; in other words, if it acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Legal and factual sufficiency are factors that can be considered in determining whether an abuse of discretion has occurred. In re C.H.C., 396 S.W.3d 33, 55-56 (Tex. App.—Dallas 2013, no pet.).
To determine whether the trial court abused its discretion because the evidence is insufficient to support its decision, we apply a two-prong analysis. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). First, we consider whether the trial court had sufficient evidence upon which to exercise its discretion. Id. We then determine whether, based on the evidence, the trial court erred in its exercise of that discretion. Id. We conduct the applicable sufficiency review with regard to the first question. Gonzalez v. Gonzalez, 331 S.W.3d 864, 867 (Tex. App.—Dallas 2011, no pet.). We then determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id.
A legal sufficiency challenge may be sustained only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable fact-finder could, and disregard evidence contrary to the finding unless a reasonable fact-finder could not. Id. at 827.
When reviewing the evidence for factual sufficiency, we consider and weigh all the evidence presented and will set aside the trial court's findings only if they are so contrary to the overwhelming weight of the evidence such that they are clearly wrong and unjust. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When the evidence conflicts, we must presume that the factfinder resolved any inconsistencies in favor of the order if a reasonable person could do so. City of Keller, 168 S.W.3d at 821. The trial court does not abuse its discretion if evidence of a substantive and probative character exists in support of its decision. In re Moore, 511 S.W.3d 278, 283 (Tex. App.—Dallas 2016, no pet.).
A trial court is required to follow particular procedures in entering a final judgment in a proceeding seeking child-support arrearages. In re G.L.S., 185 S.W.3d 56, 59 (Tex. App.-San Antonio 2005, no pet.). First, the trial court must tally the amount of the arrearage based on the payment evidence presented. Beck v. Walker, 154 S.W.3d 895, 903 (Tex. App.-Dallas 2005, no pet.); Lewis v. Lewis, 853 S.W.2d 850, 854 (Tex. App.-Houston [14th Dist.] 1993, no writ). After this calculation is made, the final judgment is to be rendered only after considering offsets and counterclaims. In re G.L.S., 185 S.W.3d at 59; Beck, 154 S.W.3d at 903; Lewis, 853 S.W.2d at 854. The petitioner must establish the arrearage, and the respondent must establish any applicable counterclaim or offset. See Beck, 154 S.W.3d at 903. A determination of arrearages must be set aside if no evidence supports it. Office of the Attorney Gen. of Tex. v. Burton, 369 S.W.3d 173, 175-76 (Tex. 2012) (per curiam).
Amount of Arrearage
Father is pro se, and his arguments are not clear. It appears Father's argument is that he was not behind on child support when he began receiving disability payments in April 2018, and that he should not be liable for child support after he began receiving disability payments.
Under the divorce decree, Father was required to pay child support of $1,500 per month. Father did not pay child support in April 2018 and thereafter. He filed suit for modification of the amount of child support in October 2018, and Mother appeared in the lawsuit that same month. Father argues he should not have had to pay child support from April 2018 because he was receiving disability payments. However, the Texas Family Code provides that a child-support modification cannot affect obligations accruing before the earlier of the date of service of citation or an appearance in the suit. See TEX. FAM. CODE ANN. § 156.401(b). Father filed this suit on October 10, 2018, and Mother appeared on October 23, 2018. Therefore, the trial court could not modify Father's child-support obligations before then. Father cites no legal authority in support of his argument that he was not required to make child-support payments while receiving disability payments.
From April through October is seven months. Seven months of child support at $1,500 per month is $10,500. Thus, some evidence supports a finding that Father's child-support arrearage was at least $10,500. The trial court's determination that Father's gross child-support arrearage was $10,585.37 was supported by some evidence and was not against the great weight and preponderance of the evidence.
Offsets
The trial court offset the child-support arrearage by $3,300, which was the amount Mother testified she received in a lump sum from the Administration for child support. Father argues the offset should have been $4,760, not $3,300.
Father argues Mother's lump-sum payment was $170 per child for four children per month for 7 months, which equals $4,760. No documents were admitted as exhibits during the trial, but the trial court examined and the parties discussed several documents. Mother testified:
Q. . . . And how much did you receive in a lump sum for the children?
A. Oh, 1100 each.
Q. So you received $3300?
A. Yes, ma'am.
Q. . . . [D]o you understand that we have to give him credit for that $3300 toward his arrears?Father testified the lump-sum payment was more than $3,300:
A. Yes.
Q. Okay. And you don't have a problem with us giving him credit for the $3300?
A. No.
Q. So your testimony is that the lump sum was larger than $3300?
A. Yeah, because I assume 4,500, somewhere in there that she received back payment, which means $170 for four children since April all the way down to December. And after the modification, I mean they made the calculation she was getting 139 for each child.
. . . .
The Court: Dad, do you have anything showing how much she got backpay?
[Father]: Yes. I've got $170 for each child.
The Court: For a total of how much when?
[Father]: 680. When I went—
The Court: Okay. Get your paperwork that shows us exactly how much she got when, and then show it to [the Assistant Attorney General].
. . . .
[Assistant Attorney General]: Your Honor, this does not have amounts on it. It just has dates on it. So it doesn't have any amounts. It's not helpful.
. . . .
And I don't have anything about a lump sum except for what she testified to and he's . . . testifying to.
The evidence consisted of Mother's testimony that she actually received $3,300, and Father's testimony that he "assume[d]" Mother received a lump-sum payment equal to $170 per month for each of four children for seven months, that is, $4,760. The Assistant Attorney General stated that Father's documents did not actually show the amounts Mother received. Without the actual documents being made part of the record, we have only the parties' descriptions of the documents to consider. The trial court weighed the evidence and determined the amount of the lump-sum payment Mother received was $3,300.
Throughout his brief, Father makes reference to documents, statements, and actions that are not part of the record on appeal. We cannot consider any matters that are not part of the record on appeal. The appellate record consists of the clerk's record and any reporter's records. See TEX. R. APP. P. 34.1. Father filed documents in this Court that were not part of the clerk's record or reporter's record that it appears he wants us to consider as evidence. We cannot consider these documents as evidence. We do not consider evidence that the record does not affirmatively show was before the trial court. See SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 841 (Tex. App.—Dallas 1991, no writ).
We conclude some evidence supports the trial court's determination that the arrearage should be offset by $3,300, and that determination is not against the great weight and preponderance of the evidence.
The trial court's determination that Father's liability for the child-support arrearage was $7,285.37 was reasonable and was not an abuse of discretion. We overrule Father's fourteenth issue.
FATHER'S REMAINING ISSUES
Father's first thirteen issues do not concern the issues expressly decided by trial court, which were the amount of Father's child-support arrearage, the enforcement of that arrearage, and whether and how to modify Father's child-support obligations. Although Mother moved for enforcement of the contractual alimony provisions, the trial court did not grant that motion.
Father's first and second issues concern Mother's actions related to alimony, contending that her claim for alimony was false and constituted perjury and that she had made secret debit card withdrawals that constituted alimony. Neither of these issues is relevant to this appeal because the trial court did not grant Mother's motion to enforce the alimony provisions. The remaining issues do not concern any matters that were before the trial court in this proceeding. Therefore, these first thirteen issues do not present any error this Court can consider, and we do not address them. See TEX. R. APP. P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issued raised and necessary to final disposition of the appeal.").
CONCLUSION
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE 190867F.P05
JUDGMENT
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas
Trial Court Cause No. 1-09-785.
Opinion delivered by Justice Myers. Justices Partida-Kipness and Reichek participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 27th day of May, 2020.