Opinion
No. 05-02-01742-CV.
Opinion filed July 10, 2003.
Appeal from the 254th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 97-17281-R.
AFFIRMED.
MEMORANDUM OPINION
William Albert Lee appeals the trial court's orders regarding modification of child support. In five issues, William contends that (1) the trial court abused its discretion in its determination of the child support William should pay during a period he was unemployed; (2) the trial court ordered William to provide W-2 forms annually, in violation of the Supremacy Clause of the United States Constitution; (3) the order modifying child support and the employer withholding order are vague and unenforceable; and (4) the appeal should be abated due to the trial court's failure to file findings of fact and conclusions of law. For the reasons below, we resolve William's issues against him and affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The 1998 divorce decree ordered William to pay child support of $700 per month. The parties filed cross-motions to modify the divorce decree on the issue of conservatorship. Elizabeth also sought an increase in child support. After a hearing on November 5, 2001, the trial court ordered William to pay child support of $1,200 per month. William paid $1,200 in November and December 2001 and January 2002. On February 13, 2002, William filed a motion for new trial, stating that he became unemployed on November 12, 2001, and requesting a new trial as to child support and communications between the parties. On February 21, 2002, William filed an amended motion for new trial making the identical request. On March 4, 2002, the trial court heard the parties' motions for judgment and signed a modification order that, as to child support, acknowledged that William had paid $8,345.26 in arrearages and ordered William to pay child support of $1,200 per month, with the first payment due on March 5, 2002. After hearing the issues related to the increase in child support and other issues, the trial court took up the amended motion for new trial. The trial court subsequently granted the motion for new trial as to the child support issue only. At a hearing on May 8, 2002, the parties stipulated to a summary of William's monthly earnings and child support owed and paid from December 2001 through April 2002. After this hearing, the trial court signed an order modifying child support, providing that William pay (1) $1,200 for November 2001, December 2001, and January 2002; (2) certain amounts in February through April that reflected the guidelines and amounts overpaid and owed; and (3) $900 per month or twenty percent of his net income, not to exceed the maximum net amount established pursuant to the family code guidelines, beginning June 2002. The trial court also signed an employer's order to withhold from earnings for child support that provides for withholding on each pay date $900 for monthly payment or twenty percent of William's net income, not to exceed the maximum net amount established pursuant to the family code guidelines. William appeals.
DISCUSSION
In part of his first issue, William argues that the trial court abused its discretion in ordering him to pay $1,200 for December 2001 and January 2002. William contends that he conclusively established that his income was $1,276 in unemployment compensation for each of these months, he paid $1,200 during these months when the applicable family code guideline for support required him to pay $215.68 each month, and, therefore, the trial court's refusal to recalculate his monthly support payment for December 2001 and January 2002 was an abuse of discretion.
A support order may be modified only as to obligations accruing after the earlier of the date of service of citation or an appearance in the suit to modify. Tex. Fam. Code Ann. § 156.401(b)(1), (2) (Vernon 2002). Thus, child support may be properly modified retroactive to the date on which the motion to modify is filed. In re Tucker, 96 S.W.3d 662, 667 (Tex.App.-Texarkana 2003, no pet.); In re J.G.Z., 963 S.W.2d 144, 149 (Tex.App.-Texarkana 1998, no pet.); Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied); Rocha v. Villarreal, 766 S.W.2d 895, 898-90 (Tex.App.-San Antonio 1989, no writ). The statute provides for a modification retroactive to the date on which the issue was joined because, without such a provision, "there would be considerable motive on the part of respondents to engage in dilatory tactics." Rocha, 766 S.W.2d at 898. Specific notice is required when retroactive child support is being sought. In re Tucker, 96 S.W.3d at 667. The effective date of the modified order is within the broad discretion of the trial court. In re J.G.Z., 963 S.W.2d at 149. It is an abuse of discretion to extend retroactive support beyond the date of the motion to modify. In re Tucker, 96 S.W.3d at 667.
The record shows that the trial court held hearings in this case in October and on November 5, 2001, including Elizabeth's motion to modify regarding an increase, and ordered that William pay $1,200 per month in November and December 2001 and January 2002. This order was not reduced to writing until after the trial court heard the parties' cross motions to enter judgment to resolve the modification issues at the March 4, 2002 hearing. The March 4, 2002 order resolved the trial court's November 2001 order increasing child support and later discussions between the parties on the child support and other modification issues. After resolving those issues, the trial court took up the February 2002 amended motion for new trial. William's motion requested that the court grant a new trial on the child support issue and stated: "On November 12, 2001, which was one week following the Court's rendition of the modification order, [William] became unemployed." The motion also stated that William's "earnings since that date have been limited to unemployment compensation" and that William expected to be employed again about March 1, 2002, but at a significantly lower salary than previously testified to. Thus, William's motion was directed to the November 2001 order on the child support issue, even though that order was not finally reduced to writing until March 4. William's motion gave notice to Elizabeth that he sought a retroactive decrease due to unemployment.
We look to the substance of a plea for relief to determine the nature of the pleading, not merely the form of title given to it. Tex.R.Civ.P. 71; State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980). "Its substance is determined by what effect it will have on the proceeding if granted." Univ. of Houston v. Elthon, 9 S.W.3d 351, 355 (Tex.App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.). Thus, although William titled his pleading as a motion for new trial, it was in fact a motion to modify the trial court's November 2001 order increasing payment to $1,200 per month. See Willis v. Willis, 826 S.W.2d 700, 701 (Tex.App.-Houston [14th Dist.] 1992, no writ) (concluding agreed motion on support payments was a motion to modify because it increased child support from previous order). William's motion raised the issue for the first time of retroactively decreasing his child support payment, and the effect of granting the amended motion for new trial was to modify the child support payments ordered in November 2001. Pursuant to section 156.401(b), the issue of a retroactive decrease in William's child support payments was joined in February 2002 when he filed his motion for new trial, and retroactive modification before that date was properly rejected.
See In re Tucker, 96 S.W.3d at 667; Holley, 864 S.W.2d at 707; Rocha, 766 S.W.2d at 898-99. Therefore, we conclude that the trial court had no discretion in applying section 156.401(b) to William's request to modify the order increasing child support and failing to recalculate William's December 2001 and January 2002 payment. Accordingly, we resolve William's first issue against him to this extent.
In his second issue, William argues that the trial court's order that William annually produce his federal income tax W-2 form violates the Supremacy Clause of the United States Constitution. See U.S. Const. art. VI, cl. 2 (providing that laws of United States are "supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding"). William's objection at trial to the request for W-2s was that "it's impermissible under the law." Thus, William waived his constitutional challenge by not raising this issue at trial. Tex.R.App.P. 33.1(a) (specific objection required); see Holley, 864 S.W.2d at 705 (waiving constitutional argument by failure to raise at trial). Even if William had preserved error, the family code supports the trial court's statement that, because it could order tax returns, it could order the lesser included relief of merely producing the W-2s requested by Elizabeth. See Tex. Fam. Code Ann. § 154.063(1), (2) (Vernon 2002) (providing that court shall require a party to produce information sufficient to accurately identify that party's net resources and ability to pay child support and "produce copies of income tax returns for the past two years, a financial statement, and current pay stubs"). William does not explain how the family code or the court's order conflicts with any statute providing for release of tax return information. We resolve William's second issue against him.
In his third and fourth issues, William contends that the trial court's order modifying child support and employer withholding order are vague and unenforceable because they provide that William is to pay $900 per month or twenty percent of his net income. To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling sought. Tex.R.App.P. 33.1(a). To preserve a complaint of error in a judgment, a party must inform the trial court of its objection by a motion to amend or correct the judgment, a motion for new trial, or some other similar method. Arthur's Garage, Inc. v. Racal-Chubb Sec. Sys., Inc. 997 S.W.2d 803, 816 (Tex.App.-Dallas 1999, no pet.). Because William did not make any objection in the trial court regarding this payment provision, William has not preserved this complaint for review. We resolve his fourth issue against him.
In his fifth and part of his first issues, William requests an abatement due to the trial court's failure to file findings of fact and conclusions of law pursuant to section 154.130 of the family code. However, the only issue preserved for error is the trial court's abuse of discretion in failing to retroactively reduce William's child support payments for December 2001 and January 2002. Because we have concluded that the court had no discretion in applying section 156.401(b) to the undisputed facts of this case, we further conclude that abatement for findings of fact and conclusions of law is not necessary. Therefore, we resolve the abatement issue against William.
Having resolved William's issues against him, we affirm the trial court's judgment.