Opinion

in the Interest of A.L.S., M.B.S., B.P.s, and F.J.S.

Court: Texas Supreme Court
Filed: Jun 28, 2011
Status: Published
Cited by: 0 cases
Authority: More cited than 35.0%

holding that trial court was not authorized to consider an equitable offset with regard to child-support arrearages

How later courts described this case

holding that trial court was not authorized to consider an equitable offset with regard to child-support arrearages

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The opinion

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Affirmed in Part and Reversed and Remanded in Part and Opinion filed March 1, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00245-CV

IN THE INTEREST OF A.L.S., M.B.S., B.P.S. AND F.J.S.

On Appeal from the 245th District Court

Harris County, Texas

Trial Court Cause No. 1984-08635

O P I N I O N

Appellant Robin Brown, appearing pro se, raises seven issues on appeal from a

judgment for child-support arrearage. In two issues, Brown, the obligee, contends the trial

court abused its discretion when it calculated the child-support arrearage owed by Michael

Stackhouse, the obligor, because the evidence is insufficient to support the amount of arrearage

ordered and the trial court failed to include additional child support in the form of medical

support awarded in 1990. Brown also contends in three issues that the trial court abused its

discretion by failing to award pre- and post-judgment interest and attorney’s fees on the

judgment, and by staying an administrative writ of withholding. In her sixth issue, Brown

contends the Attorney General’s Office (“OAG”) acted outside its statutory authorization by

actively pursuing forgiveness of child support owed by Stackhouse. Finally, in her seventh

issue, Brown challenges a 1990 child-support modification requiring her to obtain medical

insurance rather than granting her request for contempt. We find merit in Brown’s complaints

concerning the trial court’s failure to include the previously ordered medical support as child

support, and the trial court’s failure to award pre-judgment interest on the child-support

arrearage found, and therefore we reverse and remand in part and affirm the remainder.

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[1]

In 1985, Brown and Stackhouse were divorced. They had four children. In the

divorce decree, Stackhouse was ordered to pay $400.00 per month in child support. He also

was required to maintain medical insurance for the children.

On March 14, 1990, on Brown’s motion, the trial court modified Stackhouse’s child-

support obligation. Under the modification order, Stackhouse was required to pay $565.00 per

month for four children with the following step-down as the children graduated from high

school or otherwise became ineligible for child support: $323.00 per month for three children,

$201.00 per month for two children, and $161.00 per month for one child. The order also

required Brown to carry medical and health insurance and Stackhouse to pay 158.00 per month

“as additional child support for such insurance”:

ADDITIONAL SUPPORT

As additional child-support, IT IS ORDERED AND DECREED that [Brown]

shall purchase, and as long as child support is payable under the terms of the

order, maintain in full force and effect, at her sole cost and expense, medical and

health insurance coverage for the children. As additional child support for such

insurance, IT IS FURTHER ORDERED that [Stackhouse], as long as child

support is payable under the terms of this order, and in addition to any child-

support ordered under the section of this order entitled “support”, shall pay to

[Brown] the sum of $158.00 per month, payable in two monthly installments of

$79.00 each, with the first payment being due [and] payable on March 1, 1990,

the second payment being due and payable on March 15, 1990, and like payments

being due and payable on the 1st and 15th of each month thereafter.

Brown filed a “Motion for Judgment Nunc Pro Tunc” to correct errors in the March 14,

1990 modification order. Apparently, a hearing was held on the motion on October 16, 1990,

and the trial court granted the motion. The judgment nunc pro tunc ordered Stackhouse to pay

$565.00 per month for four children with the following step-down provisions: he was ordered

to pay $484.00 for three children, $404.00 per month for two children, and $323.00 per month

for one child. The remainder of the March 14, 1990 order, including the medical support

[2]

ordered, was unchanged.

In 2006, Brown sought Title IV-D services from the OAG. In January 2007, the OAG

issued an administrative writ of withholding to Stackhouse’s employer, the Houston

Independent School District (“HISD”), and began withholding money from Stackhouse’s pay.

In response, Stackhouse filed a petition to terminate the administrative writ of withholding and

to recover child support made in excess of the child-support order. Brown counter-petitioned to

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confirm a child-support arrearage.

At a hearing on Stackhouse’s petition to terminate the administrative writ of

withholding, Stackhouse testified that because Brown failed to purchase medical insurance for

the children as the March 14, 1990 modification order required, he did not pay the $158.00 per

month in medical support. He also testified that he had provided health insurance for the

children since at least 1994. Brown testified that she never obtained medical insurance for the

children because she lacked access to group health insurance. She also testified that

Stackhouse did not allow his children to access any medical-insurance coverage and that she

paid for all of their medical expenses. During the hearing, the trial court expressed the view

that Stackhouse was not required to pay the medical support because Brown did not provide

health insurance as ordered. Based on this conclusion, and noting that the evidence left the

amount of arrearage uncertain, the trial court ordered the administrative writ vacated.

In May 2009, the OAG filed a motion for clarification and motion to confirm child-

support arrearage, alleging that Stackhouse had accrued $2,319.98 in child-support arrearage

[3]

and $27,630.26 in medical-support arrearage. The OAG and Stackhouse appeared for a

hearing on the OAG’s motion in July, but Brown did not appear. At the start of the hearing, the

trial court announced that, because Brown was not present, she was in default and all of her

claims were dismissed. The OAG then questioned Stackhouse concerning his child-support

payments, and Stackhouse testified that he owed no child-support and no medical-support

arrearages. Stackhouse and the OAG stipulated that the 1990 order required Brown to carry the

health insurance and for Stackhouse to reimburse her, and Stackhouse confirmed that Brown

had not purchased health insurance for the children, but he had. Stackhouse also testified that

he had overpaid child support and asked the trial court to reimburse him the money held by the

OAG. At the conclusion of the hearing, the OAG argued that the trial court should issue a take-

nothing judgment on arrearages on both child support and medical support on equity grounds.

The trial court ruled that Stackhouse owed no arrearage, the OAG’s office was to return any

[4]

money held to him, and there should be no further withholding of any money.

The trial court rendered a default judgment against Brown. Brown moved to set aside

the default judgment and for new trial, and the trial court granted her motion.

Brown then moved to affirm the amount of child support Stackhouse owed, and in

October and November 2009, the trial court held a hearing on her motion. The OAG also

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appeared at the hearing. All of the parties submitted exhibits, but for the most part the parties

did not refer to them. At the hearing, Brown asked Stackhouse whether he missed any child-

support payments, and Stackhouse testified that he “missed some payments” but he “made

them up.” Brown testified that she was not paid some or all of 147 ordered child-support

payments, but she did not testify as to a total amount she claimed was unpaid. She again

testified that Stackhouse did not pay the medical support of $158.00 per month and he did not

provide access to any insurance for the children. She also admitted that she never obtained

medical insurance for her children. Stackhouse testified that he obtained medical insurance for

the children in June 1994 and the children had used the insurance, but he did not know the total

[5]

amount he had paid for the insurance. In response to the OAG’s questions, Brown testified

that she was seeking a judgment for child-support and the medical support of $22,866.94, plus

pre- and post-judgment interest and attorney’s fees. She also testified that the OAG’s exhibits

did not correctly account for the amount of child support owed and interest. In closing

argument, Stackhouse’s attorney argued that, at most, Stackhouse owed $1,756.87 in child-

[6]

support arrearage.

On December 18, 2009, the trial court signed a judgment for child-support arrearage

awarding Brown $1,756.87 in child-support arrears and $0 in medical-support arrears, and

providing for post-judgment interest of six percent and a penalty of $50.00 per day if the

judgment was not paid by November 12, 2009. This appeal followed.

We first address Brown’s issues concerning the trial court’s judgment awarding

$1,756.87 in child-support arrearage and no medical-support arrearage. In her first issue,

Brown contends the trial court abused its discretion in calculating the child-support arrearage

because the evidence is insufficient to support the trial court’s conclusion. In her third issue,

she contends that the trial court abused its discretion when it found Stackhouse owed no

medical-support arrearages. We address each in turn.

Generally, we review the trial court’s award of child support for abuse of discretion.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); 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 or principles, or when it fails to analyze or apply the law

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correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

Under the abuse-of-discretion standard, sufficiency of the evidence is not an

independent ground of error, but is a factor in assessing whether the trial court abused its

discretion. Beck, 154 S.W.3d at 902; London v. London, 94 S.W.3d 139, 143–44 (Tex. App.—

Houston [14th Dist.] 2002, no pet.). When, as here, the trial court does not file findings of fact

and conclusions of law, we imply that the trial court made all findings necessary to support the

judgment and will uphold those findings if supported by sufficient evidence. Chenault v. Banks,

296 S.W.3d 186, 189 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Beck, 154 S.W.3d at

902.

In calculating child-support arrearages, however, the trial court’s discretion is very

limited. Chenault, 296 S.W.3d at 189. Although the trial court can award certain offsets and

credits, the trial court has no discretion to forgive or decrease a past child-support obligation.

Id. Thus, in a proceeding to confirm child-support arrearages, the trial court’s child-support

calculations must be based on the payment evidence presented, not the trial court’s assessment

of what is fair or reasonable. Id. at 190. However, a money judgment for arrearages rendered

by the trial court may be subject to a counterclaim or offset as provided by Title 5 of the Family

Code. Tex. Fam. Code § 157.262(f).

Brown first argues that the evidence is insufficient to support the trial court’s judgment

awarding child-support arrearage of $1,756.87. In response, Stackhouse contends that Brown

wholly failed to meet her burden to present credible evidence of an arrearage and that he

presented sufficient evidence of the amount of arrearage. The OAG agrees with Stackhouse that

the evidence supports the trial court’s judgment on the amount of child-support arrearage

awarded.

In her brief, Brown discusses in detail the similarities and differences among the parties’

calculations, and faults the trial court for making mistakes in calculating the amount of child-

support arrearage and for making “equitable adjustments.” But she also concedes that, at the

hearing on her motion, “Stackhouse claimed the $1,756.87 in arrearage he computed was based

on the judgment nunc pro tunc.” Stackhouse also testified that he had been behind in his child-

support payments, but he “made them up.” In contrast, Brown testified that Stackhouse had

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failed to pay some or all of a number of child-support payments, but she never testified to a

specific amount Stackhouse allegedly failed to pay (as distinct from the medical-support

arrearage claimed), and she offered no testimony concerning her exhibits. She did testify, at

the conclusion of the hearing, that she was seeking a judgment for child support and the

medical support of $22,866.94, exclusive of interest and attorney’s fees. Thus, the evidence

concerning the amount of child support Stackhouse had failed to pay was conflicting.

The burden is on the movant seeking enforcement to prove the amount of arrearage

due. George v. Jeppeson, 238 S.W.3d 463, 474 (Tex. App.—Houston [1st Dist.] 2007, no

pet.). The trial court does not abuse its discretion if it bases its decision to award arrearages on

conflicting evidence and some evidence supports its decision. Consistent with the abuse-of-

discretion standard that controls our review, we must defer to factual resolutions by the trial

court that derive from conflicting evidence, as well as any credibility determinations that may

have affected those resolutions, and we may not substitute our judgment for that of the trial

court. Id. Here, the trial court found that the evidence was insufficient to support any

judgment above the $1,756.87 Stackhouse claimed was owed. Because there is some evidence

to support the trial court’s award, we cannot say the trial court abused its discretion. Therefore,

we overrule Brown’s first issue.

In her third issue, Brown contends that the trial court erred in forgiving Stackhouse’s

obligation to pay the medical support of $158 per month awarded in the March 14, 1990

modification order based on Brown’s failure to purchase medical insurance for the children.

Brown takes the position that the order requires Stackhouse to pay this additional child support

independently of her obligation to obtain medical insurance. Brown also contends that

Stackhouse gave conflicting testimony concerning the periods of time the children were

actually covered, and in any event, he did not plead or prove any right to an offset or

reimbursement permitted under the Family Code.

In response, Stackhouse asserts that Brown “is complaining that although she failed to

provide insurance for the minor children she should be paid the cost for such anyway.”

Stackhouse maintains that the “logical interpretation” of the order is that his obligation to pay

the additional support was contingent upon Brown obtaining a policy, and he was to reimburse

Brown’s expenses for the insurance. Stackhouse also contends he presented evidence that he

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carried and paid for medical insurance for the children directly, and he was therefore entitled to

an offset under Family Code section 157.008(a).

The OAG agrees with Brown that the trial court abused its discretion when it found and

confirmed that Stackhouse owed no medical-support arrearages. The OAG further asserts that

Stackhouse presented no evidence to support his entitlement to any statutory offset. We

conclude that Brown and the OAG are correct.

Medical support is an additional child-support obligation that may be enforced by any

means available for the enforcement of child support. See Tex. Fam. Code § 154.183(a). As

discussed above, the March 14, 1990 modification order imposed a medical-support obligation,

characterized as additional child support, as follows: