Brooke Bruce// Carter Bruce v. Carter Bruce// Cross-Appellee, Brooke Bruce

ACCEPTED

03-16-00581-CV

14442075

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/23/2016 3:21:04 PM

JEFFREY D. KYLE

CLERK

No. 03-16-00581-CV FILED IN

3rd COURT OF APPEALS

AUSTIN, TEXAS

12/23/2016 3:21:04 PM

IN THE TIDRD COURT OF APPEALS JEFFREY D. KYLE

Clerk

AUSTIN, TEXAS

BROOKE BRUCE,

Appellant,

v.

CARTER BRUCE,

Appellee.

On Appeal from the 345th Judicial District Court of Travis County, Texas

Trial Court Cause No. D-1-FM-06-002028

APPELLANT'S BRIEF ON THE MERITS

Kacy L. Dudley

State Bar No. 24069638

DUDLEY LAW, PLLC

1717 West Sixth Street, Suite 315

Austin, Texas 78703

(512) 617-3975 (telephone)

(512) 479-7910 (facsimile)

kdudley@dudley-law.com

COUNSEL FOR APPELLANT

1- BRIEF OF APPELLANT BROOKE BRUCE

IDENTITY OF PARTIES AND COUNSEL

Appellant/Respondent: Brooke Bruce (mother and child support obligee)

Counsel for Appellant: Kacy Dudley

DUDLEY LAW, PLLC

1717 West Sixth Street, Suite 315

Austin, Texas 78703

Telephone: (512) 617-3975

Facsimile: (512) 479-7910

kdudley@dudley-law. com

Appellee/Petitioner: Carter Bruce (father and child support

obligor)

Counsel for Appellee: CECILIA M. WOOD

ATTORNEY AND COUNSELOR AT LAW, P.C.

Capitol Center

919 Congress Avenue, Suite 830

Austin, Texas 78701

Telephone: (512) 708-8783

Facsimile: (512)708-8787

Appellee/Respondent State of Texas, by and through the Office of the

Attorney General, Child Support Division

Counsel for Appellee: Brittany Baumgartner

Assistant Attorney General

508 Old Austin Hutto Rd.

Pflugerville, Texas 78660

Telephone: (512) 339-1135

Facsimile: (512) 339-9051

2 - BRIEF OF APPELLANT BROOKE BRUCE

TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. 2

Table of Contents ...................................................................................................... 3

Index of Authorities ................................................................................................... 5

Statement of the Case ................................................................................................ 8

Statement on Oral Argument ..................................................................................... 9

Issues Presented for Review ...................................................................................... 9

Statement of Facts ..................................................................................................... 9

A. Appellee Owed a Duty to Pay Monthly Periodic Child Support for the

Support of the Child ................................................................................................ 9

B. Appellee Carter Bruce Began a Pattern of Inconsistently Paying Support

Despite Having the Financial Ability to Pay Support .......................................... 11

C. The Record Reflects Contradictory Evidence Regarding the $10,000, $1,000,

and $1,816.23 Offset Claims ................................................................................ 12

D. Personal and Business Financial Transactions Between the Parties After

Their Divorce Were Not Child Support Payments .............................................. 15

E. Attorney's Fees Incurred by Brooke Bruce ................................................... 16

Summary of the Argument ...................................................................................... 17

Argument ................................................................................................................. 18

I. A DECISION REGARDING THE CONFIRMATION OF CHILD

SUPPORT ARREARAGE IS REVIEWED FOR AN ABUSE OF DISCRETION

18

II. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING AN

OFFSET TO CHILD SUPPORT ARREARAGE THAT IS NOT AUTHORIZED

BY STATUTE OR OTHER LAW ...................................................................... 20

A. Unpaid Child Support Is an Unfulfilled Duty to a Child ........................ 21

B. Once the Court Found a Child Support Arrearage, the Trial Court Has an

Affirmative Duty to Render Judgment on the Arrearages ............................ 21

C. Discretionary Payments to Third Parties Are Not Considered Child

Support .......................................................................................................... 26

3 - BRIEF OF APPELLANT BROOKE BRUCE

D.The Trial Court Abused Its Discretion Because It Incorrectly Applied the

Law Regarding Allowable Child Support Offsets ........................................ 27

i. The $10,000 and $1,000 Offsets Are Not Statutorily Permissible

Offsets or Offsets Contemplated by Ochsner .......................................... 28

ii. The $1,816.83 to the County Tax Assessor Is Not Permissible Offset

.................................................................................................................. 31

III. AN OBLIGOR'S CONCLUSORY STATEMENTS ABOUT THE

DISCHARGE OF A CHILD SUPPORT OBLIGATION THAT ARE

CONTRADICTED BY OTHER EVIDENCE ARE NO MORE THAN A

SCINTILLA OF EVIDENCE ENTITLING HIM TO AN OFFSET ................... 31

IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST

FOR ATTORNEY'S FEES DESPITE MANDATORY DUTY IMPOSED BY

§157.167 OF THE FAMILY CODE IN A CHILD SUPPORT CASE ............... 35

A. A Decision Regarding the Award of Attorney's Fees in a Child Support

Enforcement Action is Reviewed De Novo .................................................. 35

B. It Is Error to Deny an Award Attorney's Fees in a Suit to Enforce Child

Support .......................................................................................................... 36

Prayer ....................................................................................................................... 38

Appendix ................................................................................................................. 41

4 - BRIEF OF APPELLANT BROOKE BRUCE

INDEX OF AUTHORITIES

Cases

Adair v. Martin, 595 S.W.2d 513 (Tex.1980) ......................................................... 21

Attorney Gen. of Texas v. Stevens, 84 S.W.3d 720 (Tex. App.-Houston [1st Dist.]

2002, no pet.) ........................................................................................... 19, 22, 23

Beck v. Walker, 154 S.W.3d 895 (Tex. App.-Dallas 2005, no pet.). ................ 18, 23

Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415 (Tex. App.-Dallas

2012, no pet.) ....................................................................................................... 32

Berner v. Ferris, 538 S.W.2d 658 (Tex. Civ. App.-Amarillo 1976, no writ) ...... 32

BMC Software Belgium, NV. v. Marchand, 83 S.W.3d 789 (Tex.2002) ............... 19

Chenault v. Banks, 296 S.W.3d 186 (Tex. App.-Houston [14th Dist.] 2009, no

pet.)........................................................................................................... 22, 26, 31

City ofKeller v. Wilson, 168 S.W.3d 802 (Tex.2005) ............................................ 20

Curtis v. Curtis, 11 S.W.3d 466 (Tex. App.-Tyler 2000, no pet.)........................ 20

Doyle v. Doyle, 955 S.W.2d 478 (Tex. App.-Austin 1997, no pet.); ................ 18, 19

Ekstrom v. Teems, 14-96-01180-CV, 1998 WL 93744 (Tex. App.-Houston [14th

Dist.] Mar. 5, 1998, pet. denied) .......................................................................... 37

Finley v. May, 154 S.W.3d 196 (Tex. App.-Austin 2004, no pet.). ..................... 35

Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863 (Tex.2009) ....... 35

Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458

(Tex.1969) ............................................................................................................ 32

Higgins v. Higgins, 05-98-02014-CV, 2000 WL 1264636, at *3 (Tex. App.-

Dallas Sept. 7, 2000, no pet.) ............................................................................... 28

Higgins v. Smith, 722 S.W.2d 825, 828 (Tex. App.-Houston [14th Dist.] 1987, no

writ) ...................................................................................................................... 33

In re A.B.C., 04-99-00113-CV, 2001 WL 191557, (Tex. App.-San Antonio Jan.

31, 2001, pet. denied) ........................................................................................... 23

In re A.L.S., 338 S.W.3d 59 (Tex. App.-Houston [14th Dist.] 2011, pet. denied)36

In re C.S., 2014 WL 972310 (Tex. App.-Eastland Mar. 6, 2014, no pet) ...... 25, 28

In reJ.C.T, 05-12-01290-CV, 2014 WL 3778909 (Tex. App.-Dallas July 31,

2014, pet. denied) ................................................................................................. 28

In reJ.S.H, No. 06-09-00101-CV, 2010 WL 1568463 (Tex. App.-Texarkana

Apr.21, 2010, no pet.) (mem. op.) ....................................................................... 23

In re S.R.O., 143 S.W.3d 237 (Tex. App.-Waco 2004, no pet.) ........................... 21

5 - BRIEF OF APPELLANT BROOKE BRUCE

James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex.

617,335 S.W.2d 371 (1960) ................................................................................ 32

Johnson v. Johnson, 03-02-00427-CVC, 2005 WL 3440773 (Tex. App.-Austin

Dec. 16, 2005, no pet.) ......................................................................................... 35

Lee v. Kaufman, 03-10-00148-CV, 2011 WL 3796175 (Tex. App.-Austin Aug.

26, 2011, no pet.) ................................................................................................. 18

Long v. Griffin, 442 S.W.3d 253 (Tex. 2014) ......................................................... 37

Mai v. Mai, 853 S.W.2d 615 (Tex. App.-Houston [1st Dist.] 1993, no writ)) ....... 19

McFadden v. Deed/er, 03-13-00486-CV, 2014 WL 4364540 (Tex. App.-Austin

Aug. 27, 2014, no pet.) ......................................................................................... 35

Medrano v. Medrano, 810 S.W.2d 426 (Tex. App.-San Antonio 1991, no writ) .. 26,

31

Office ofAttorney Gen. of State v. McBee, 01-08-00433-CV, 2009 WL 2961245

(Tex. App.-Houston [1st Dist.] Sept. 17, 2009, no pet.) ................................... 23

Office ofAtty. Gen. of Texas v. Scholer, 403 S.W.3d 859 (Tex. 2013) ...... 21, 25, 30

Pioneer Land & Cattle Co. v. Collier, 07-12-00320-CV, 2013 WL 2150814 (Tex.

App.-Amarillo May 15, 2013, no pet.) .............................................................. 32

Ragsdale v. Progressive Voters League, 801 S.W.2d 880 (Tex.1990) (per curiam)

.............................................................................................................................. 33

Railroad Comm'n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d

619 (Tex.2011) ..................................................................................................... 35

Russell v. Russell, 478 S.W.3d 36 (Tex. App.-Houston [14th Dist.] 2015, no pet.) .

.............................................................................................................................. 36

Scruggs v. Linn, 443 S.W.3d 373 (Tex. App.-Houston [14th Dist.] 2014, no pet.) .

.............................................................................................................................. 37

Smith v. Patrick W. Y. Tam Trust, 296 S.W.3d 545 (Tex.2009) .............................. 31

Trico Techs. Corp. v. Montiel, 949 S.W.2d 308 (Tex. 1997) ................................ 32

Tucker v. Thomas, 419 S.W.3d 292 (Tex.2013) ..................................................... 36

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex.1998) ................. 20

Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241(Tex. App.-Houston

[ 14th Dist.] 1999, pet. denied) ............................................................................. 19

Walker v. Packer, 827 S.W.2d 833 (Tex.1992) (orig.proceeding) ................... 19, 35

Williams v. Patton, 821 S.W.2d 141 (Tex. 1991) ................................................... 21

Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.-Austin 2006, pet. denied) 19, 20,

33

6 - BRIEF OF APPELLANT BROOKE BRUCE

Statutes

Tex. Fam. Code§ 154.183 ...................................................................................... 36

Tex. Fam. Code Ann. § 157 .002 ............................................................................. 27

Tex. Fam. Code Ann.§ 157.162 ....................................................................... 27, 36

Tex. Fam. Code Ann.§ 157.166 ............................................................................. 27

Tex. Fam. Code Ann.§ 157.167 (West 2016) ...................................... 18, 35, 36, 37

Tex. Fam. Code Ann. § 157.263 (West 2016) ................................ 17, 21, 22, 25, 29

Tex. Fam. Code Ann.§§ 157.008-.009 ............................................................. 23, 29

7 - BRIEF OF APPELLANT BROOKE BRUCE

STATEMENT OF THE CASE

Nature of the case. Appellee, Carter Bruce, sued Appellant, Brooke Bruce, to

recover child support payments made in excess of child support order. (C.R. at 43,

144). Appellant filed a counterclaim requesting an enforcement of the child support

order and confirmation of child support arrears. (C.R. at 133). Both Appellant and

Appellee requested attorney's fees. (C.R. at 46, 138). The Office of the Attorney

General on behalf of the State of Texas filed a general denial. (C.R. at 48).

Course ofproceedings. After a trial to the court, the court found that appellee

failed to timely make child support payments in the amount of $22,965.00 and that

appellee failed to timely make medical support in the amount of $939.39, but then

granted offsets to appellee in the amount of $19,816.83. (C.R. at 185-187; App.

Tab 1). The Court also denied both requests for attorney's fees. Appellant filed a

motion to modify correct or reform the judgment and a motion for new trial, which

was overruled. (Motion for new trial, C.R. at 190; motion to modify, correct or

reform not included in clerk's record, supplemental request filed and pending).

The court subsequently heard appellee's Motion for Judgment Nunc Pro Tune,

which asserted that the final order originally signed by the court was lost by the

clerk's office and that the court should back-date the final order to the date the lost

order was signed. (C.R. at 205). The trial court denied the Motion for Judgment

Nunc Pro Tune but has not yet signed an order.

8 - BRIEF OF APPELLANT BROOKE BRUCE

Trial court disposition. The trial court judicially renderedjudgment on March 1,

2016 and signed the final judgment on June 20, 2016. (C.R. at 185; App. Tab 1).

STATEMENT ON ORAL ARGUMENT

Appellant does not request oral argument.

ISSUES PRESENTED FOR REVIEW

Issue 1: Did the trial court abuse its discretion by awarding Appellee Carter Bruce

a credit to his confirmed child support arrearage for three payments that do not

constitute allowable offsets permitted by the Texas Family Code or other law?

Issue 2: Did the trial court abuse its discretion by awarding Appellee Carter Bruce

a credit to his confirmed child support arrearage when there is no more than a

scintilla of evidence proving he is.entitled to an offset?

Issue 3: Did the trial err by denying Appellant Brooke Bruce's request for

attorney's fees in a Motion for Enforcement of Child Support?

STATEMENT OF FACTS

A. Appellee Owed a Duty to Pay Monthly Periodic Child Support for the

Support of the Child

Appellant, Brooke Bruce, and Appellee, Carter Bruce, are the parents of one

child, ., now age 20. (C.R. at 5). Appellant and appellee divorced on

October 4, 2007, and their Decree of Divorce ordered appellee to pay monthly

9 - BRJEF OF APPELLANT BROOKE BRUCE

periodic child support in the amount of$1,500.00 beginning April 1, 2007, and

then an increased amount ($1,750.00) beginning on April 1, 2008. (C.R. at 22).

The Decree of Divorce required appellee to pay child support until either their son

reached the age of 18 or until he graduated from high school, whichever was later.

(C.R. at 22). Appellant was assigned the exclusive right to receive child support.

(C.R. at 22). The Decree of Divorce required that child support payments be made

through the state disbursement unit. (C.R. at 24). Appellee admits to being aware

that the Decree of Divorce ordered him to make child support payments through

the state disbursement unit child support registry. (2 R.R. at 65).

At the conclusion of the trial on the merits, the court found that appellee

failed to timely make periodic child support payments totaling $22,965.00 and that

he failed to timely make payments for unreimbursed medical expenses in the

amount of$939.49. (C.R. at 185-187; App. Tab 1). This amounts to a total

arrearage of$23,094.49. (C.R. at 186). The court then allowed the following

offsets totaling $19,816.83:

1. 11/01/2007 $3,000 Check to Brooke Bruce

2. 7/19/2009 $4,000 Check to Brooke Bruce

3. 8/25/2009 $10,000 Check to Brooke Bruce

4. 10/06/2009 $1,000 Check to Brooke Bruce

5. 12/16/2009 $1,816.83 Check to Nelda Wells

Spears for Property

Taxes

10 - BRIEF OF APPELLANT BROOKE BRUCE

(C.R. at 186-187). This resulted in the court rendering judgment on the child

support arrearages in favor of appellant in the amount of $4,087.22. (C.R. at 187;

App. Tab 1). Appellant does not dispute that the $3,000 payment made on

November 1, 2007 and the $4,000 payment made on July 19, 2009 are for child

support. (2 R.R. at 96-98).

B. Appellee Carter Bruce Began a Pattern of Inconsistently Paying

Support Despite Having the Financial Ability to Pay Support

Beginning soon after their divorce, appellee began a pattern of not making

consistent and timely child support payments. (P. Ex. 2 at 3). Within months of

the divorce, appellant had to file a Motion for Contempt to enforce her child

support obligation. (P. Ex. 3). And, as early as 2009, appellant sought the services

of the office of the attorney general to assist with enforcing her right to receive

child support. (2 R.R. at 106). There were periods in 2008 and 2009 when

appellant went months at a time without making a child support payment. (P. Ex.

2 at 3). Appellant flat-out stopped making child support payments after January 1,

2015 (with the exception of one small $13 7 .22 payment), despite the fact that their

son was still in high school. (P. Ex. 1 at 3; 2 R.R. at 93).

Appellee had ample resources available to him to make child support

payments as ordered. He admits that in 2008 he sold a ranch for $1.5 million and

spent as much as $250,000 on the remodel of his home located at 6013 Marquesa.

(2 R.R. at 41-46; 66; P. Ex. 14).

11 - BRIEF OF APPELLANT BROOKE BRUCE

Appellant made efforts to collect child support from appellee directly;

appellee categorizes his ex-wife's efforts to collect child support from him directly

as "harassment." (2 R.R. at 32-35, 36; P. Exs. 19-20). After months of not

receiving child support in 2015, appellant Brooke Bruce asked the attorney general

for assistance in enforcing the child support order. (2 R.R. at 106). In 2015,

appellee Carter Bruce received conflicting information from the office of the

attorney general about his child support arrearage. (P. Ex. 7). Their records

indicated alternatively that he owed as much as $187,251.96 in child support or as

little as $1,981.37 plus interest. (P. Ex. 7). After receiving this conflicting

information, appellee filed his motion to recover overpaid child support. (C.R. at

43, 144).

C. The Record Reflects Contradictory Evidence Regarding the $10,000,

$1,000, and $1,816.23 Offset Claims

Appellee believes that he was not late in paying child support until at least

thirty days after child support was due and sometimes did not timely pay child

support because he was out of town. (2 R.R. at 67). He also states that he "did

not remember" why he skipped certain payments. (2 R.R. at 72-73). Appellant's

stated reason for stopping payments in 2015 was that he had overpaid child support

and coul.d stop payments earlier than required by the court's order. (2 R.R. at 87-

89). This turned out to be inaccurate based on the court's finding of an arrearage.

(C.R. at 187; App. Tab 1).

12 - BRIEF OF APPELLANT BROOKE BRUCE

In an effort to change the attorney general's payment records, appellee sent

correspondence to the attorney general's office disputing their records. (P. Ex. 7).

On March 4, 2015, he also signed a Non-Custodial Parent's Affidavit of Direct

Payments stating that he paid $27,635.00 in child support payments directly to

appellant. (P. Ex. 8; App. Tab 3). The Affidavit of Direct Payments includes two

payments in 2006, one payment in 2007, and nine payments in 2009. (P. Ex. 8;

App. Tab 3). By the time the parties got to trial, the number of direct payments

alleged by appellee increased to $35,000.00 (C.R. at 155).

Appellee maintained copies of checks that appellant Brooke Bruce agrees

were for child support, and these checks have notations that they were child

support. (P. Ex. 8 at 3, 5; App. Tab 3). However, the copies of checks offered by

appellee in support of the $10,000 payment on August 25, 2009 and $1,000

payment on October 6, 2009 do not indicate they were for child support. (P. Ex. 8

at 7, 8; App. Tab 3). And, the last payment in dispute is a check written to a third

party-Nelda Wells Spears-in the amount of$1,816.83. (P. Ex. 8 at 10; App.

Tab 3). The check indicates this payment is for "6002 Bullard" and not child

support. (P. Ex. 8 at 10; App. Tab 3).

When asked by his own lawyer what the $1,000 payment made on October

6, 2009 check was for he said, "I don't know." (2 R.R. at 39). When asked later

how he determined that the $1,000 payment of was child support, he said it was an

13 - BRIEF OF APPELLANT BROOKE BRUCE

"even number" and must have been for child support. (2 R.R. at 39-41). Appellee

offers conflicting stories about the $10,000 payment made on August 25, 2009: he

says that he made the payment of $10,000 on August 25, 2009 to get ahead on

child support but admits that he made a payment through the State Disbursement

Unit about a week and a half later because he was "confused." (2 R.R. at 36, 69-

70; P. Exs. 2, 8). Lastly, appellee says that the payment to Nelda Wells Spears for

appellant's property taxes was initially a "loan" but then later decided it was child

support once the loan was not paid back. (2 R.R. at 57-58). The payment for

property taxes to Nelda Wells Spears is also not included in his Affidavit of Direct

Payments (P. Ex. 8; App. Tab 3).

Copies of checks offered at trial by appellee Carter Bruce show that he did

make other support payments by paying through the state disbursement unit. (P.

Ex. 13 at 11, 15; App Tab 4). These payments indicate the cause number, the case

I.D. number, are made payable to the "TX Child Support Unit" or "TXSCU," and

indicate that the payments are for either "Oct. and November" payment or "Dec.

payment." (P. Ex. 13 at 11, 15; App Tab 4).

The documents that appellee brought forth to support other payments in his

Affidavit of Direct Payments did not show payments to Brooke Bruce. (P. Ex. 8;

App. Tab 3). The documentary support for the payment allegedly made on May

21, 2009 is a withdrawal slip that does not bear Brooke Bruce's name. (P. Ex. 8,

14 - BRIEF OF APPELLANT BROOKE BRUCE

p.4). The documentary support for the payment allegedly made on December 23,

2009 is also a withdrawal slip that does not bear Brooke Bruce's name. (P. Ex. 8,

p.4; App. Tab 3). Other documents offered by Carter Bruce show a pattern of

withdrawing cash, yet he does not claim these payments are child support. (P. Ex.

13 at 3, 6; App. Tab 4).

D. Personal and Business Financial Transactions Between the Parties After

Their Divorce Were Not Child Support Payments

Sometime after the divorce, appellee helped appellant with a remodel of her

home, including installing a hot tub and other work. (2 R.R. at 41-46). Appellant

and appellee both agree that there were financial transactions between them arising

out of this business relationship. (2 R.R. at 41-46). He was also renovating his

own residence. (2 R.R. at 41-46). The parties disagree about the status of their

personal relationship; appellant says that the parties briefly rekindled a romantic

relationship but appellee maintains that they were just getting along better for their

son. (2 R.R. at 26-27, 103-104). Brooke Bruce also says that around the time he

wrote her the $10,000 check, she spent money on joint expenses including trips

together, obtaining passports, and remodeling homes. (2 R.R. at 103-104).

Appellant says that appellee had trouble writing checks due to a suspended license,

and she wrote some checks for him because he lacked a driver's license. (2 R.R. at

103-104). It is her belief that the $10,000 payment was a reimbursement for these

expenses she paid. (2 R.R. at 103-104). At around the time appellee wrote the

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check for $1,000 in October 2009, the parties went to a festival together, went dirt

bike riding, bought food and drinks, and stayed at a hotel. (2 R.R. at 106-107).

Brooke Bruce recalls cashing the check at a bank for payment of these expenses

because she had a valid driver's license. (2 R.R. at 106-107).

Appellee agreed that at least one payment he asserted as child support in his

Affidavit of Direct Payments was in fact a reimbursement for an expense for his

house. (2 R.R. at 39-41).

E. Attorney's Fees Incurred by Brooke Bruce

In pursuit of her motion for enforcement of child support, appellant Brooke

Bruce incurred reasonable and necessary attorney's fees in the amount of

$19,057.30. (R. Ex. 6; App. Tab 5). Appellant's attorney, Kathleen Coble,

provided testimony at trial in support of the request for attorney's fees and

provided invoices in support of all services rendered, including services of both the

attorney and paralegal who worked on the matter. (R. Ex. 6; 3 R.R. at 48-54). The

invoices include detailed descriptions of the work performed, Ms. Coble's hourly

rate, and the dates on which services were rendered. (R. Ex. 6; App. Tab 5). Ms.

Coble offered testimony regarding her qualifications as an attorney who is board

certified in family law by the Texas Board of Legal Specialization. (3 R.R. at 49).

The attorney for appellee stipulated on the record to Ms. Coble's qualifications.

(3 R.R. at 49). Ms. Coble offered testimony regarding court appearances in the

16 - BRIEF OF APPELLANT BROOKE BRUCE

matter, excessive amounts of discovery propounded on her client by appellee

Carter Bruce, and responding to appellee requests to obtain an offset of child

support. (3 R.R. at 50-51 ). At the time of trial, appellant had only paid $1,500,

which she borrowed to pay for attorney's fees. (3 R.R. at 52). Appellee Carter

Bruce objected to evidence pertaining to his ability to pay attorney's fees, which

was sustained by the court. (2 R.R. at 76).

SUMMARY OF THE ARGUMENT

Issue 1. In a suit to enforce child support, section 157 .263 of the Texas

Family Code requires a trial court to confirm child support arrearages without

reducing or modifying the arrearage except as provided by law. Tex. Fam. Code

Ann. § 157.263 (West 2016). The Family Code has two very narrowly defined

exceptions allowing offsets, neither of which is present in this case. Absent proof

from the child support obligor that he has discharged a child support obligation as

required by the child support order, the trial court has a mandatory duty to confirm

the arrearages. The trial court incorrectly applied the law by allowing offsets not

permitted by the family code or case law.

Issue 2. Appellee Carter Bruce offered no more than a scintilla of evidence

in support of his child support offset claims. The evidence offered to prove that

direct payments to Appellant were indeed in the nature of child support is

contradictory, conclusory, and not clear, direct, and free from inconsistencies.

17 - BRIEF OF APPELLANT BROOKE BRUCE

Thus, it amounts to no evidence. Thus, the trial court abused its discretion because

there was not sufficient information pertaining to a vital fact that is determinative

to this case.

Issue 3. In a suit for enforcement of child support, there is a mandatory

requirement that the court shall order the Respondent to pay attorney's fees. Tex.

Fam. Code Ann.§ 157.167 (West 2016). The only exception is upon a finding of

good cause, and the trial court must state its reasons for finding good cause. Id.

The court in this case found that appellee failed to discharge his child support and

medical support obligations by more than $23,000, but then denied appellant's

request for attorney's fees without stating good cause. Thus, the court erred in

denying the attorney fee request.

ARGUMENT

I. A DECISION REGARDING THE CONFIRMATION OF CHILD

SUPPORT ARREARAGE IS REVIEWED FOR AN ABUSE OF

DISCRETION

A trial court's order concerning a child support arrearage is reviewed under an

abuse-of-discretion standard. Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.-

Dallas 2005, no pet.). Under that standard, legal and factual sufficiency are not

independent grounds for reversal, but are instead relevant factors in assessing

whether the trial court abused its discretion. Lee v. Kaufman, 03-10-00148-CV,

2011 WL 3796175, at *1 (Tex. App.-Austin Aug. 26, 2011, no pet.) (citing Doyle

18 - BRIEF OF APPELLANT BROOKE BRUCE

v. Doyle, 955 S.W.2d 478,479 (Tex. App.-Austin 1997, no pet.); Mai v. Mai, 853

S.W.2d 615, 618 (Tex. App.-Houston [1st Dist.] 1993, no writ)).

To decide whether an abuse of discretion has occurred, the appellate court

must determine: ( 1) whether the trial court had sufficient information on which to

exercise its discretion; and (2) whether the trial court erred in its application of

discretion. Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.-Austin 2006,

pet. denied) (internal citations omitted). A trial court's failure to analyze or apply

the law correctly constitutes an abuse of discretion. Attorney Gen. of Texas v.

Stevens, 84 S.W.3d 720, 722 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (citing

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

When a trial court does not issue any findings of fact or conclusions of law,

all facts necessary to support the trial court's ruling and supported by the evidence

are implied in favor of the trial court's decision. Zeifman, 212 S.W. 3d. at 588

(citing BMC Software Belgium, NV. v. Marchand, 83 S.W.3d 789, 794

(Tex.2002)). However, when the appellate record includes both the reporter's

record and the clerk's record, the implied findings are not conclusive and may be

challenged for legal and factual sufficiency. Zeifman, 212 S.W.3d at 588 (citing

Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.-

Houston [14th Dist.] 1999, pet. denied)).

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A legal sufficiency challenge may be sustained 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. Zeifman,

212 S.W.3d at 588 (citing Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d

328, 334 (Tex.1998)). In determining whether there is legally sufficient evidence

to support the finding under review, the court considers evidence favorable to the

finding if a reasonable factfinder could, and disregards evidence contrary to the

finding unless a reasonable factfinder could not. City ofKeller v. Wilson, 168

S.W.3d 802, 828 (Tex.2005).

As to the issue of a child support arrearage offset, the child support obligor

has the burden of proof. Curtis v. Curtis, 11 S.W.3d 466, 472 (Tex. App.-Tyler

2000, no pet.). Thus, appellant must only establish that there is no evidence to

support the trial court's finding of an offset or that there is some other rule of law

that bars the court from considering the evidence offered to prove a vital fact. Id.;

Zeifman, 212 S.W.3d at 588.

Issue 1

II. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING

AN OFFSET TO CHILD SUPPORT ARREARAGE THAT IS NOT

AUTHORIZED BY STATUTE OR OTHER LAW

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A. Unpaid Child Support Is an Unfulfilled Duty to a Child

Appellee Carter Bruce failed to meet a duty to support his child. The

payment of child support reflects a parent's duty to his child, which furthers the

child's welfare and best interests. Office ofAtty. Gen. of Texas v. Scholer, 403

S.W.3d 859, 866-67 (Tex. 2013). "When child support payments are not made,

the result is a loss of funds available for the child's food, clothing, education, and

home environment." Williams v. Patton, 821 S.W.2d 141, 145 (Tex. 1991). Texas

has a policy of protecting the interests of children, and this policy underlies the law

on child support enforcement. Id. Characterizing arrearages as nothing more than

a "debt" owed to the custodial parent oversimplifies the purpose of child support.

Id. Past due child support is really more of an unfulfilled duty to the child than a

"debt" to the custodial parent. Id. (citing Adair v. Martin, 595 S.W.2d 513

(Tex.1980).

B. Once the Court Found a Child Support Arrearage, the Trial Court

Has an Affirmative Duty to Render Judgment on the Arrearages

Once the amount of child support arrearages is established, the court has an

affirmative duty to confirm the arrearages and reduce them to judgment. Tex.

Fam. Code Ann. § 157.263(a); In re S.R.O., 143 S.W.3d 237,248 (Tex. App.-

Waco 2004, no pet.) (internal citations omitted) Some courts have said that the trial

judge acts "as a mere scrivener" in this situation. In re S.R.O., 143 S.W.3d at 248.

The Family Code states that if a motion for enforcement of child support requests a

21 - BRIEF OF APPELLANT BROOKE BRUCE

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)

(West 2016).

The Family Code also says that in rendering a money judgment under this

section, the court may not reduce or modify the amount of child support arrearages

but, in confirming the amount of arrearages, may allow a counterclaim or offset as

provided by this title. Tex. Fam. Code Ann. § 157 .263 (West 2016) (emphasis

added). Family Code section 157 .263 itself does not contain a definition of what

may constitute an offset. Stevens, 84 S.W.3d at 723. In a proceeding to confirm

arrearages, the child support calculations must be based on the payment evidence

presented, not the trial court's assessment of what is fair or reasonable. Chenault v.

Banks, 296 S.W.3d 186, 190 (Tex. App.-Houston [14th Dist.] 2009, no pet.)

By its plain language, section 157 .263 (b-1) only permits offsets as provided

by "this title," meaning Title 5 of the Family Code. Title 5 is entitled "the Parent-

Child Relationship and Suit Affecting the Parent-Child Relationship" and includes

all matters relating to children and their parents, including support,

conservatorship, and visitation. See generally Title 5, Tex. Fam. Code. Ann. (West

2016).

Prior to the Ochsner decision, discussed infra, there was a general consensus

among the courts that there are two narrowly allowed offsets to child support: a

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credit for having possession of the child and a lump-sum payment arising from the

obligor's disability. Tex. Fam. Code Ann.§§ 157.008-.009; Beck, 154 S.W.3d at

905-06; see also In re J.S.H, No. 06-09-00101-CV, 2010 WL 1568463, at *3

(Tex. App.-Texarkana Apr.21, 2010, no pet.) (mem. op.), In re A.J.R., 09-09-

00382-CV, 2010 WL 4262007, at *5 (Tex. App.-Beaumont Oct. 28, 2010, no

pet.) {child support obligor providing actual support to a child may request or

offset under §157.008 for that support), Beck, 154 S.W.3d at 906 (denying offset in

part because affirmative defense not established under § 157. 008. ), Office of

Attorney Gen. of State v. McBee, 01-08-00433-CV, 2009 WL 2961245, at *5 (Tex.

App.-Houston [1st Dist.] Sept. 17, 2009, no pet.) (finding an abuse of discretion

where trial court allowed offset due to incarceration, which is not permitted by

statute), In .re A.B.C., 04-99-00113-CV, 2001 WL 191557, at *3 (Tex. App.-San

Antonio Jan. 31, 2001, pet. denied) (stating offset available if affirmative defense

established under §157.008), Stevens, 84 S.W.3d at 725 (holding that offset not

allowed by statute), and In re J.S.H., 2010 WL 1568463, at *5 (same).

The Supreme Court of Texas has called into question exactly how these

offsets should be applied. The court states that the offsets allowed by 157 .008-

.009 of the Family Code "do not alone exhaust a trial court's ability to consider

evidence of an obligor's discharge of his child-support obligation in an

enforcement proceeding." Ochsner v. Ochsner, 14-0638, 2016 WL 3537255 at *2

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(Tex. June 24, 2016) (not released for publication). However, this does not excuse

an obligor from showing evidence of proper payment or complying with the

court's order. In a concurring opinion, Justice Guzman writes,

"[i]n determining the existence of an arrearage and calculation of interest,

the issue is whether the obligor discharged his obligation to pay the amount

of child support ordered, which requires a comparison of the 'amount owed

as provided in the order' with 'the amount paid.' Proof of actual payment is

germane to confirmation of an arrearage... [E]ven though the court shall

order the payment of child support to the state disbursement unit ... a

payment is not delinquent even 'if payments are not made through a

registry' so long as the payment is timely received by 'the obligee or entity

specified in the order."' Ochsner, 2016 WL 3537255, at *10-11 (Guzman,

J., concurring).

Ochsner carves out a very narrow exception for the discharge of a child

support obligation based on the facts in that case. In that case, a child-support

order required father to make certain payments to his daughter's school, and when

she switched schools, to make payments through a registry. Id. at * 1. Instead, he

paid the new school directly, with payments totaling more than $20,000 beyond

what the original order contemplated. Id. His ex-wife then sued to recover the

balance that was not paid through the registry nearly ten years later. Id. The court

noted that the payments were regular, as opposed to irregular, and that obligor

discharged an obligation directly incurred by the obligee for benefit of the child.

Id. at *7.

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The court held that it was appropriate for the trial court to conclude that no

arrearages should be ordered because under all the circumstances the obligor made

thousands of dollars in direct support payments in excess of the amount the order

required, and in doing so satisfied the obligee's obligation. Id. at *4. However, an

obligor should not flout the system, and the statute requires the trial court to

confirm the amount of arrearages, based on the amount the child-support order

required the obligor to pay, and in light of various payments the court finds that the

obligor made. Id.

The court further states that "[their] decision ... should be confined to the

facts presented. It should not be read to hold that tuition payments always qualify

as child support. Further, it should not be read to encourage spouses to make direct

payments and thereby bypass the registry or other payment mechanisms set forth in

the divorce decree." Id. at *8. And, the obligor may not rely on the other parent's

actions or agreements to discharge his child support obligation. Scholer, 403

S.W.3d at 866-67; Williams, 821 S.W.2d at 145.

Only if an obligor proves monthly payments that discharge his child support

obligation, may the court decline to confirm an arrearage. In re C.S., 2014 WL

972310, at *2 (Tex. App.-Eastland Mar. 6, 2014, no pet). This is distinguishable

from a case where an obligor has failed to make child support payments as ordered

· and the court is required to confirm arrearages by Section 157.263 of the Texas

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Family Code. When an obligor has discharged a monthly child support obligation,

albeit not through the registry as required, an "offset" analysis is not necessarily

implicated because there is not necessarily an arrearage. Id. At *2.

C. Discretionary Payments to Third Parties Are Not Considered Child

Support

The trial court plays a very important role in child support proceedings to

ensure the protection of the child's best interests, and private agreements to modify

child support obligations bypass the protection of the court and are thus against

public policy and unenforceable. Chenault, 296 S. W.3d at 190-91 (citing

Williams, 821 S.W.2d at 143-44) (other citations omitted). In Chenault, the

executor of the estate of child support obligor argued that payments directly to a

child's military academy should be an offset to his child support obligation. 296

S.W.3d at 188. The court of appeals reversed the judgment of the trial court

finding an abuse of discretion because the payments were not previously approved

the court. Id. at 190-191.

Although the court of appeals could not determine whether the trial court

applied offsets for "personal loans and money for other items such as Christmas

gifts, an amusement park season pass, pictures, insurance, a car, and a class ring,"

the court stated that it would be abuse of discretion to give credit for these non-

child support items that are not in the Family Code as a basis for decreasing child

support arrearages. Chenault, 296 S.W.3d at 192 (citing Medrano v. Medrano, 810

26 - BRIEF OF APPELLANT BROOKE BRUCE

S.W.2d 426,427 (Tex. App.-San Antonio 1991, no writ) (noting that the Family

Code does not authorize credit against child support arrearages for a loan or

purchase of a car)).

D. The Trial Court Abused Its Discretion Because It Incorrectly Applied

the Law Regarding Allowable Child Support Offsets

The Family Code allows the remedy of enforcement of a child support

obligation that is not made in compliance with an order. Tex. Fam. Code Ann. §

157.002 (b) (West 2016) (allowing obligee to file motion for enforcement by

contempt if she pleads portion of the order allegedly violated, the date of alleged of

contempt, the amount due and the amount paid, if any). Chapter 157 recognizes

that a court order for child support is enforceable by its terms and allows a

contempt finding provided that the court references the portion of the order

violated and states the date of each occasion when the respondent's failure to

comply with the order was found to constitute contempt. Tex. Fam. Code Ann. §

157.166(b) (West 2016). This is all to say that there are severe penalties, including

contempt, for not discharging a child support obligation in the manner designated

by the court order.

The Family Code does allow a child support obligor to offer evidence to

contradict the records kept by a child support registry. Tex. Fam. Code Ann.§

157.162 (c-1) (West 2016). However, the Code does not permit the obligor to wait

thirty days (or more) past the due-date for child support to make his payments for

27 - BRIEF OF APPELLANT BROOKE BRUCE

the support of his child. In limited circumstances, the records of the child support

registry may not be dispositive in showing that monthly child support payments are

made if an obligor has evidence that he made every payment monthly payment

required of him. In re C.S., 2014 WL 972310, at *3; see also In re J.C.T, 05-12-

01290-CV, 2014 WL 3778909, at *4 (Tex. App.-Dallas July 31, 2014, pet.

denied) (testimony that all child support payments were made twenty-two years

before obligee tried to collect support was legally sufficient even though support

record did not show payments) and Higgins v. Higgins, 05-98-02014-CV, 2000

WL 1264636, at *3 (Tex. App.-Dallas Sept. 7, 2000, no pet.) (holding that

obligor proved discharge of child support obligation where checks showing direct

payments included 'child support' notation and were accepted by obligee).

The trial court in this case found that appellee Carter Bruce failed to timely

discharge both child support and medical support obligations, confirmed an

arrearage, and then found that he was entitled to offsets. The court incorrectly

applied the law permitting offsets to a child support obligation.

i. The $10,000 and $1,000 Offsets Are Not Statutorily Permissible Offsets or

Offsets Contemplated by Ochsner

The trial court's decision to offset the child support arrearage for the

$10,000 payment on August 25, 2009 and the $1,000 payment on October 6, 2009

constitutes an abuse of discretion. Ochsner and the cases that permit a court to

consider evidence of actual payments made by an obligor in discharge of a child

28 - BRIEF OF APPELLANT BROOKE BRUCE

support obligation have all been clear: payments must be regular, an obligor must

show compliance with the letter or spirit of the underlying court order, and the

obligor must pay the actual amounts owed under the order. No such thing

happened here. In this case, the court found that, in the aggregate, appellee Carter

Bruce failed to timely discharge his child support obligation by more than $23,000.

Under the plain language of statutory scheme set forth in Family Code § 157 .263,

this confirmation of arrearages shifts the burden to Carter Bruce show some offset

"under [Title 5]" of the Family Code.

The statutory offsets permitted by sections 157.008-.009 of the Texas

Family Code are not applicable to this case. Appellee Carter Bruce did not plead

an affirmative defense to child support enforcement that would entitle him to an

offset under section 157.008. Also, neither party raised the issue of funds being

paid as a result of a lump-sum disability payment paid on behalf of appellee. Once

an arrearage is confirmed, the court is without discretion to modify or forgive the

payments, even in the interest of equity or fairness. Once the child support

arrearage was confirmed, the court had no discretion to reduce the arrearage absent

some statutorily permitted offset.

Should this court find more than a scintilla of evidence that the $10,000

payment and the $1,000 payment at issue were indeed "child support" payments,

these payments were sporadic and unpredictable. In his own words, appellee did

29 - BRIEF OF APPELLANT BROOKE BRUCE

not believe that his child support payments were late until he was behind by more

than 30 days. This leaves only the narrow exceptions set forth in case law that

permit an obligor to prove he has discharged his child support obligation in a

manner that complies with the child support order.

While the Ochsner case has undoubtedly transformed the landscape on what

may be considered "child support," the holding should be confined to the facts of

that particular case. To extend this holding beyond those facts may needlessly

encourage litigation between spouses, even though there will invariably be an

order with clear and concise terms regarding support. Any holding that allows the

parties to a child support order to subjectively elect how to discharge a child

support obligation will potentially create litigation, which ultimately affects the

children subject to these orders. Allowing the party to discharge an obligation by

agreement or by means other than allowed by the family code has been expressly

rejected by the Supreme Court of Texas in the Williams and Scholer cases, supra.

The Ochsner case does not say that a child support payment made in an

untimely manner may be a child support offset.

Extending Ochsner to the facts of this case may also undermine the power of

trial courts to enforce their orders regarding support. Concluding that a child

support obligor can discharge a child support obligation by not timely paying child

support will potentially create a "substantial compliance" defense to a motion for

30 - BRIEF OF APPELLANT BROOKE BRUCE

enforcement of child support. The law should encourage obligors to pay child

support on time and not encourage creative ways for them to avoid legal

obligations. This is keeping in line with the notion that child support obligations

are a debt to the children and are an important part of the public policy of the State

of Texas.

ii. The $1,816.83 to the County Tax Assessor Is Not Permissible Offset

Granting an offset for the payment made to the county tax assessor, Nelda

Wells Spears, was an abuse of discretion because the payment was not an offset

permitted by law. See Argument, IX C, i, supra.

Additionally, this payment was made to a third party and not to discharge an

obligation incurred by the obligee for the child, as was discussed in Ochsner. Even

in circumstances where the obligor pays for child-related expenses such as military

school, movies, or other items for the child, these are non-child support related

items and should not serve as an offset. See Chenault and Medrano, supra.

Issue 2

III. An Obligor's Conclusory Statements About the Discharge of a Child

Support Obligation That Are Contradicted by Other Evidence Are No

More Than a Scintilla of Evidence Entitling Him to an Offset

Carter Bruce is clearly an interested witness, and he offered conclusory and

conflicting evidence supporting his offset claims. For example, his testimony

surrounding the $1,000 offset check was initially that he "did not know" about the

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purpose of the check. (2. R.R. 39). Proof of actual payment is germane to

determining whether child support has been timely paid as ordered. Ochsner, 2016

WL 3537255, at *10-11 (Guzman, J., concurring).

The general rule is that evidence given by an interested witness, even though

uncontradicted, presents an issue to be determined by the trier of fact. Berner v.

Ferris, 538 S.W.2d 658, 659 (Tex. Civ. App.-Amarillo 1976, no writ) (citing

Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458,467

(Tex.1969) ). Conclusive effect may be given to the testimony of an interested

witness only if the testimony is clear, direct and positive and there are no

circumstances tending to discredit or impeach the same. Id. When testimony

comes from an interested party and the evidence cannot be readily contradicted if

untrue, an issue relating to the credibility of the witness is presented. Berner, 538

S.W.2d at 659 (citing James T Taylor and Son, Inc. v. Arlington Independent

School District, 160 Tex. 617, 335 S.W.2d 371, 376 (1960)).

A conclusory statement without supporting facts is not readily

controvertible. Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 424-25

(Tex. App.-Dallas 2012, no pet.). Such a conclusory statement without

supporting facts is insufficient to support a summary judgment. Id. (citing Trico

Techs. Corp. v. Montiel, 949 S.W.2d 308,310 (Tex. 1997)); see also Pioneer Land

& Cattle Co. v. Collier, 07-12-00320-CV, 2013 WL 2150814, at *3 (Tex. App.-

32 - BRIEF OF APPELLANT BROOKE BRUCE

Amarillo May 15, 2013, no pet.); Smith v. Patrick WY. Tam Trust, 296 S.W.3d

545, 547 (Tex.2009); Ragsdale v. Progressive Voters League, 801 S.W.2d 880,

881 (Tex.1990) (per curiam).

This court previously held that in assessing whether a court abuses its

discretion, the court can consider legal and factual sufficiency arguments. See

Zeifman. In this case, even when looking at the evidence most favorably to

appellee Carter Bruce, the court had insufficient information to exercise its

discretion. Appellee's evidence supporting his offset claims is no more than

conclusory statements that are supported by little to no factual detail. When asked

what the $10,000 payment was, he said "It is for child support." (2 R.R. 36). He

offered a copy of check in support of the $10,000 payment but offered no

testimony explaining the circumstances under which he gave the check to

appellant, whether he even gave it to her, whether the check cleared his bank

account, or why he made the payment directly rather than through the state

disbursement unit. (P. Ex. 8). The check does not include a notation that it was for

child support. The evidence at trial shows that appellee did know how to make

payments through the disbursement unit. Two checks he offered at trial showed

this by including the months the payments represented and by sending them to the

child support disbursement unit with the court cause number. (P. Ex. 13 at 11, 15).

When asked on cross-examination to explain why the payment was made directly

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he said alternatively that he was either "confused" or that he was trying to get

ahead on child support due to appellant's "harassment." (2 R.R. 36). Appellee's

explanation for why the $1,000 payment was child support was only that it was an

"even number." (2 R.R. 39). Again, there is no explanation why the payment was

made directly, no evidence of the circumstances surrounding the payment, and no

evidence of conversations with appellant about the payment. The payments were

also not made on a date when child support was due.

Appellant Brooke Bruce also offered contradictory evidence to the evidence

offered by appellee. Concerning the $1,000, she offered specific evidence about

receiving the check and cashing the check at a time when the parties went to a

festival and payed for other expenses. (2 R.R. at 106-107). She also offered

testimony that the parties were traveling together, getting passports, and renovating

their homes. In the face of this contradictory evidence, appellee's conclusory

statements as these payments being child support constitute no evidence. Lastly,

appellant himself offered contradictory evidence concerning the payment towards

property taxes. He said alternatively that it was a "loan" but then in his mind, it

was also child support. (2 R.R. at 57-58). Appellee offered evidence that it was

not child support, stating that it was a time when the parties were considering

reconciling and that is why he paid the property taxes.

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Issue 3: Did the trial err by denying Appellant Brooke Bruce's request for

attorney's fees in a Motion for Enforcement of Child Support?

IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST

FOR ATTORNEY'S FEES DESPITE MANDATORY DUTY IMPOSED BY

§157.167 OF THE FAMILY CODE IN A CHILD SUPPORT CASE

A. A Decision Regarding the Award of Attorney's Fees in a Child Support

Enforcement Action is Reviewed De Novo

The Texas Family Code requires a court to review the award of attorney's

fees that are in in the nature of child support as a legal conclusion, and trial court's

order is reviewed de novo. Finley v. May, 154 S.W.3d 196, 198 (Tex. App.-

Austin 2004, no pet.). While a motion for enforcement of child support is

normally reviewed for an abuse of discretion, the award of attorney's fees in this

instance involves a matter of statutory construction, which is reviewed de novo.

McFadden v. Deed/er, 03-13-00486-CV, 2014 WL 4364540; at *1 (Tex. App.-

Austin Aug. 27, 2014, no pet.) (citing Railroad Comm'n v. Texas Citizens for a

Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex.2011); Walker v. Packer,

827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding) (observing that court has no

"discretion" to misinterpret or misapply law)). The express statutory language is

the primary concern. McFadden, 2014 WL 4364540, at *1. (citing Galbraith

Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.2009)); see also

Johnson v. Johnson, 03-02-00427-CVC, 2005 WL 3440773, at *5 (Tex. App.-

Austin Dec. 16, 2005, no pet.).

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B. It Is Error to Deny an Award Attorney's Fees in a Suit to Enforce Child

Support

The Texas Family Code states that "if 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 2016) (emphasis added).

The court may not waive the award of attorney's fees except for good cause shown

and "if the court states the reasons supporting that finding." Tex. Fam. Code Ann.

§ 157.167 (c) (West 2016). 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, including rendering a

money judgment. Tex. Fam. Code Ann.§ 157.162 (b) (West 2016). Medical

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

means available to the enforcement of child support. McFadden, 2014 WL

4364540, at *2 (citing Tex. Fam. Code§ 154.183(a); In re A.L.S., 338 S.W.3d 59,

67 (Tex. App.-Houston [14th Dist.] 2011, pet. denied).

Absent an express finding of good cause, the award of attorney's fees under

section 157 .167 is mandatory upon a finding of failure to make child support

payments. See id. § 157.167(a); Tucker v. Thomas, 419 S.W.3d 292, 300

(Tex.2013). The denial of a contempt motion does not constitute "good cause."

Russell v. Russell, 478 S.W.3d 36, 42 (Tex. App.-Houston [14th Dist.] 2015, no

36 - BRIEF OF APPELLANT BROOKE BRUCE

pet.). Advice of counsel regarding whether to pay support may also not constitute

"good cause." Scruggs v. Linn, 443 S.W.3d 373, 381-82 (Tex. App.-Houston

[14th Dist.] 2014, no pet.).

Evidence to support a request for attorney's fees using the lodestar method

should include the hours worked multiplied by the hourly rates for a total fee. Long

v. Griffin, 442 S.W.3d 253,255 (Tex. 2014). Sufficient evidence includes, at a

minimum, evidence "of the services performed, who performed them and at what

hourly rate, when they were performed, and how much time the work required." Id.

(internal citations omitted). Id. The attorney "should provide testimony of the

hours spent on the case, the nature of preparation, complexity of the case,

experience of the attorney, and the prevailing hourly rates. Ekstrom v. Teems, 14-

96-01180-CV, 1998 WL 93744, at *2 (Tex. App.-Houston [14th Dist.] Mar. 5,

1998, pet. denied) (citing Higgins v. Smith, 722 S.W.2d 825, 828 (Tex. App.-

Houston [14th Dist.] 1987, no writ)).

The Family Code does not allow a trial the discretion to not apply the law on

the issues of awarding attorney's fees, regardless of whether there is a contempt

finding. The mandate from Family Code section 157 .167 is that the court shall

award attorney's fees except upon a showing of good cause. The court in this case

made a finding that appellee had failed to discharge his child support and medical

support obligations for the child, which then invoked the court's duty to award

37 - BRIEF OF APPELLANT BROOKE BRUCE

attorney's fees. The record before the court is silent as to good cause to not award

attorney's fees, and appellee's attorney expressly objected to any evidence being

presented at trial regarding this issue.

At trial, the attorney for appellee stipulated on the record to the

qualifications of appellant's attorney, Ms. Coble. Ms. Coble also offered

testimony concerning her qualifications, including her certification as a board-

certified attorney and the number of years she has practiced law. Her invoices are

detailed as to time spent, dates of services, and services performed. The same is

true of the work her paralegal performed. The services rendered in this suit on the

live pleadings only pertained to child support enforcement. Therefore, the court

erred in not awarding attorney's fees.

PRAYER

Appellant requests this court modify the trial court's judgment to remove

child support offsets totaling $12,816.83 and to render judgment confirming a total

child support and medical support arrearage of $16,904.49.

Appellant requests that this court reverse the trial court's order denying

appellant's request for attorney's fees render judgment for reasonable and

necessary attorney's fees in the nature of child support in favor of appellant in the

amount of $19,057.30.

Appellant requests that this court otherwise affirm the trial court's order.

38 - BRIEF OF APPELLANT BROOKE BRUCE

Respectfully submitted,

DUDLEY LAW, PLLC

1717 West Sixth Street, Suite 315

Austin, Texas 78703

(512) 617-3975 Telephone

(512) 479-7910 Facsimile

By: Isl Kacy L. Dudley

Kacy L. Dudley

State Bar No. 24069638

kdudl ey@dudley-law. com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was

served in accordance with the Texas Rules of Appellate Procedure on Wednesday,

December 21, 2016 as follows:

Cecilia M. Wood

919 Congress Ave., Ste. 830

Austin, Texas 78701

Via Email: Cecilia@ceciliawood.com

Attorney for Carter Bruce

Brittany M. Baumgartner

Assistant Attorney General

508 Old Hutto Rd.

Pflugerville, Texas 78660

Via Email: brittany.baumgartner@texasattomeygeneral.gov

Attorney General

39 - BRIEF OF APPELLANT BROOKE BRUCE

Isl Kacy L. Dudley

Kacy L. Dudley

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft Word

and contains 7,284 words, as determined by the computer software's word-count

function, excluding the sections of the document listed in Texas Rule of Appellate

Procedure 9.4(i)(l).

Isl Kacy L. Dudley

Kacy L. Dudley

40- BRIEF OF APPELLANT BROOKE BRUCE

Appendix

No. 03-16-00581-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

BROOKE BRUCE,

Appellant,

v.

CARTER BRUCE,

Appellee.

APPELLANT'S APPENDIX

LIST OF DOCUMENTS

1. Final Order Confirming Child Support Arrearage and Denying Contempt

dated June 20, 2016

C.R. 185............................................................................................... Tab 1

2. Texas Family Code§§ 157.008, .009,. 167, .263 ............................... Tab 2

3. Petitioner's Exhibit 8

P. Ex. 8 ................................................................................................ Tab 3

4. Petitioner's Exhibit 13

P. Ex. 13 .............................................................................................. Tab 4

5. Respondent's Exhibit 6

R. Ex. 6 ................................................................................................ Tab 5

41 - BRIEF OF APPELLANT BROOKE BRUCE

Tab 1

Filed in The District Court

of Travis County, Texas

®TProc.uaor:

Tm8 DC>CUMll'tt CONTAINS 6J!l'tGTIVEl>il.A

JUN 20 2016 $.S

Al ~:J, P,M

CAlJ.SSN'O. 0.1-llt,(-06,.002023 Velva L. Price, District Clerk

mnm .[tfl!mBm' m .. lNTiiB DJS'IRit:r COURT

M.C.B.

•

• TRAVIS COUN'J'Y, nttA.S

AMINOJ,aJIU) .

•

• 3.f511i:rcJI>JCIALl1m'IlUCI'

1'llW'... ORDll. C'.ONJl'lJmm'fG cBlLD 81Jlf0ll'l' ~GJ'8 .41«> DmmNG

CONnMl'r

OJitho 29& -,.otl'ebtDaty-ttm 111 4-7 otMarab.2016, mma on to 'bell.fl8l'd

Pllll!fCIMl', CA'B.'.t:Blt l3li.UC8's, n , w ~ P"'1141t to ~ DlN(Jtl>qytntlft.r 41Wl*1

8.«xmratJJdSttpportPaym,nu~ilfllta#q/C1d/4S.,OrtOrtl,r-4Jl~

BR.()OE:RBRIJ'C!t'aS.coml..bnl1'fldlloJlonftr¥rOt!hllllle/Chll48'f,;,o,tOrtl,r,

Jwe,ar'at,'61

~ ~BJUJ<a~m,-,cltldby1-Mt1lmtJy offfllOrd,

CBClllAM WOOD, and~ed.taadf.

1tr:1i, J,lfl\BROOKBlJRD'C£, ,;ppewedmp«ISOll., alltl'f,ylulr~afteQO?d.

K:A'llIIBm:rnBBM CO.BIB, UldanoollllOedready.

~.1Bl3 ~All$ OF 'ra.XAS1hilqh.. omoo afthd~ ~ 'RI

duly notiteclat1ho hell:mg. lNtrulcd to appea:t.

· ~.,,

Tbi:,Court,ufizla'eumtned1bepleadmpaodhi!ctiboovidcnloaridlll',=ientofooumol.

fiJd 1batithll ~ ~Jm,diGf!Oll offhia CPO 11M. ofllJ. fbe J)ldb IBd'fbatDO

'okcowth.u con1JurD&~•~

AD.poi,omeunt1ed1u<itdonW11tO~~

..

185

R.eoortl

1'.®~akbig of a;tBOQtO, o£testbonf'WU dot,'~ by tho offiojal oaun~ Int

1bi,!1r' J"udioialD!lcrlctCOll:Lt, .M4. l'~ Day, "P. o.»• l 748, ~ 'toxas 78761.

'

Cwiluv,t~ D,1fktl

The Camtmkt&atC'\RlERBRUCRi,l!PtJn.OOAU!mpt, ~ l l l l d ~ ~

llllOODl:llIDaa"ue4u:eat:tbra.~o!CClll1elllptisDJ?Nnm.

C!hlld&,p,ptll'la,rdM,aicQZ8,/ppore~~3

'Jlie Courttlnds1bt the alleprtcws .inllllOOtB lm.'OCB-'s Sw;r,d Jmmd#d Mqttm,,jor

2,(ar-o.MdJt ~CMl.dMlppcn Ordtr lttO tmo~plldj 11Ud'thetOART!ItBB.UdB :falledlO tfnw:y'

pqpl!ltto& Gblld wpportto rol.00~ BlUJCB1firouth, th& Stato l l i a ~ tlbit:ln ~

JtllOlll:lt' a£m,~.OO 89 alle~ 1M ClJUl'ttmher ind.f fbat c.All'Ilm.Jm.Uc:r, failed 1.01.ttmllv

pay~1'1:1mz,d~ ~-e,i fur'llte child to BBOOlCB B:R.UCl3 m. ~ ammmt of

&939.49. l1il, Q,crt.&df thltthe tob:l amO'Ont otputdi» ~~1Lat mm not.1)8id.

tfflOU£lt th& S• DlrolZll=d U..mt and..m.edh,alp~ O'Wt4tmm. CAXX'BR :SRUCB to

BJ.OOKB BRUCE is $'23.904.49. .

~ Co'llrttbdh« ffn.41 that nilTBR.lnUJC:H h \IJtifled to omet» of'(bst1ota18'ttIJl. dllo

to clh'CCt~):2\BO!I by CAll'IlllllJR.UCBt\> BR.OOIBBI{UCJforto others. 1ho Cmnt

flndll ib61' c.\ll.tBR :BllUCB.h ~1D afllleb 'fmth! !o.llo1wigpa:,menta fu,: a.10tll1 o:f

$19.116,83:

1, ll/01/l007 .$3.000.00 lliookto~:Sm<:6

.i. 1f1911h09 $4,000.00 Ohtcl'cto ~flko lb.'Uoo

3. &aS/.2009 tlo.000.00 Cb:itkm Broo~~

4. 10/06.l'lOO, '1,000.00 ~tol:koob-:Sme

186

s. t2/loll009

An atm ~ f o r ~ c1t: umditmw by CARTBR.. BltUCH :In .bu pleadinss or In

~ <ir O'llw ~ i&.tcd. attdal ere DENIBD, CAR.T.BR.BlUJCH'a ff~tto recowa.-

clulcl~ ov~em., tram BROQDJ3:wcJi.i, DENI&>. ·

IT 19, tn:muiFORE, OIUmBIID th;rt'thettlflll final lllDOU\'C otm~ ~ede.d

6'.at~ daa md ow].ng fJ:11 ch!1d aDdmedlcelB(lppart jj :Po'll1' 'Dlouw-.d Bt~.&van ~

and Sixty.,8Jx ~(S't087,~J ~ ~ ~ \ I ~ { ) \ \,e , Q._b.\\

IT 1S, ~ ORDmuID that BROODJ 'BR'UCB ls gm,u.1ed. • ~ mtbe

amotrn:; ofFmsi ~ ~ D f f l n Do1lm, azid·Siztf-Scc Ctufll ($4,087.66), 11pblat

~I<m.JmlJ~t-othldl Iet~ants.,uo, rr JS PURTilBlt ORDBRBD " ! b a t ~ ~ i\ c'1~

~~ ';.}\)rlt, ,~ ~~"'. ' '\""-.J'

.BlUJCB11ballpa;ytlwjudgrncntilt fJJ:a>llowms~1'wo ~:Oollau ~00().00)1o

1,opeid 1lttough ~ TcitU BmfC D ~ Uw onor bo1hroMaroJ,. B, 2016 1nd Two

~ ~ e v e n Doll.It'! l!2ld Sb.tf-SiJ Cd! w be pajd mrongb. fbc Tl'b:'.as ~

Die&=uwl. U:oit ~ er lxdm'b April 15, 20l6. n' IS 0.1UJEI.UID,1Mt B:ROOQ BRUcamay

~ mtsjudfp;u.em: is by any mlltlll8 a . ~ *'th.e ~ ot'ajtulgmant &Mand by · ~

~-½~~

aeymC«nB a-..Hal>lc :forth& ~ a n t of clrltd ~ _iu&.~ ~

~

"11....\. (ow-1,.

i .

w,

.1.·... .JtJ

l-"

r-~\

'<A"i'

0 ~ "'o ®'-t'~rt. ~, '\>~ j ~ ~ ' ""~ ,~~~~ft~

}.{,J/val Plf'1Mltnft lftUlfl)/Jlm • .

.

lb6 Courtfindst'l:r.igood eaus~ cuim.etld tliet tbeparti.mhl\o'o agL"lldd to tho emry of o

.mmualpermanent~.

The mutual permanent~ 1:i~iow elmD b0 of&otfftl: ~ etid shall bci

binding on o.u!IER.D.Uell aad B:ROOJCB BllUCB; on 1hm &geb.ts, ~ CD>,P(oye~ sad

~ endcro.tboacpw1011S ln ecfi-n oawx,;t orpdllfpm:lon wffh iltmi w:\lo meive ,otoa1

notice ofiliis or<h lfy pmoml atmCG or atlwrwhie.

. .

tr J S . ~ ORDBR:6l:, 1bai OOTB.R.BR'O'C'.B md l{ROOKQ BRUCE a

~ er,JoJi,,oci ioln commmdcaUng with *11 ~ fn ~ JAJ1DD.ei: 0111« thAnby amaiJ..

Tbis i,eancnt,ntil\iuncdon.i!l dt«tttvo hn>ttedl.amly al2dshsll oQAffnuc 1D. fall fbr:cc Btld

Onor - ~ i,bO\"' ~ --- -·..., •

IrlSFURTIIER. OlUlHREO that$b.party so,ll. be ~1upo=ol&tor-lrl.Ymher

teqpootl\re atlOmC)' tao..

Dtdt ,f.luJg,,,,mr

J'CJDJOlA.LLY PB.ONOUNCBl:> AND RBNDmrnD on tha 1r. liq of .Maroh, 2016, ~

~YBIGNBDANDRAl'IFilIDon& 2P ~qof 0\..l\'\,L.,_,2016,

APlB.IJVNJ A8 l"O FORM ONI,Y:

~~ A~\1l'\')'1ea as to form :

~& ~

/"BYilt®LfB ~

[ ~shuit Aimmeli Gthtntl

f 5SN 1 Z.40wl0 ~

1 soi 01A ,Au.S'\1n. HuHt ~

/ Pflugeruillt ,TX 7~~6

188

,,'

189

Tab 2

§ 157.008. Affirmative Defense to Motion for Enforcement of..., TX FAMILY§ 157.008

V.T.C.A., Family Code § 157.008

§ 157.008. Affirmative Defense to Motion for Enforcement of Child Support

Currentness

(a) An obligor may plead as an affirmative defense in whole or in part to a motion for enforcement of child support that

the obligee voluntarily relinquished to the obligor actual possession and control of a child.

(b) The voluntary relinquishment must have been for a time period in excess of any court-ordered periods of possession

of and access to the child and actual support must have been supplied by the obligor.

(c) An obligor may plead as an affirmative defense to an allegation of contempt or of the violation of a condition of

community service requiring payment of child support that the obligor:

(1) lacked the ability to provide support in the amount ordered;

(2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;

(3) attempted unsuccessfully to borrow the funds needed; and

(4) knew ofno source from which the money could have been borrowed or legally obtained.

(d) An obligor who has provided actual support to the child during a time subject to an affirmative defense under this

section may request reimbursement for that support as a counterclaim or offset against the claim of the obligee.

(e) An action against the obligee for support supplied to a child is limited to the amount of periodic payments previously

ordered by the court.

Credits

Added by Acts 1995, 74th Leg., ch. 20, § l, eff. April 20, 1995.

WeSTlAW © 2016 Thomson Reuters. No daim to original U.S. Government Works. 1

§ 157.008. Affirmative Defense to Motion for Enforcement of... , TX FAMILY§ 157.008

Notes of Decisions (115)

V. T. C. A., Family Code§ 157.008, TX FAMILY§ 157.008

Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

WfSllAW @ 2016 Thomson Reuters. No claim to original U.S. Government Works. 2

§ 157.009. Credit for Payment of Disability Benefits, TX FAMILY§ 157.009

V.T.C.A., Family Code§ 157.009

§ 157,009. Credit for Payment of Disability Benefits

Effective:June19,2009

Currentness

In addition to any other credit or offset available to an obligor under this title, if a child for whom the obligor owes

child support receives a lump-sum payment as a result of the obligor's disability and that payment is made to the obligee

as the representative payee of the child, the obligor is entitled to a credit. The credit under this section is equal to the

amount of the lump-sum payment and shall be applied tQ any child support arrearage and interest owed by the obligor

on behalf of that child at the time the payment is made.

Credits

Added by Acts 2009, 81st Leg., ch. 538, § 1, eff. June 19, 2009; Acts 2009, 81st Leg., ch. 767, § 14, eff. June 19, 2009.

V. T. C. A., Family Code§ 157.009, TX FAMILY§ 157.009

Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

WESTLAW @2016 Thomson Heutern. No claim to original U.S. Government Works.

§ 157.167. Respondentto Pay Attorney's Fees and Costs, TX FAMILY§ 157.167

.":!,J/:

ils'Ai!!ciijgJR;

,:~:i:itt{t~ C

V.T.C.A, Family Code § 157.167

§ 157.167. Respondent to Pay Attorney's Fees and Costs

Effective: September 1, 2005

Currentness

(a) If 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. Fees and costs ordered

under this subsection may be enforced by any means available for the enforcement of child support, including contempt.

(b) If the court finds that the respondent has failed to comply with the terms of an order providing for the possession

of or access to a child, the court shall order the respondent to pay the movant's reasonable attorney's fees and all court

costs in addition to any other remedy. If the court finds that the enforcement of the order with which the respondent

failed to comply was necessary to ensure the child's physical or emotional health or welfare, the fees and costs ordered

under this subsection may be enforced by any means available for the enforcement of child support, including contempt,

but not including income withholding.

(c) Except as provided by Subsection (d), for good cause shown, the court may waive the requirement that the respondent

pay attorney's fees and costs if the court states the reasons supporting that fmding.

(d) If the court finds that the respondent is in contempt of court for failure or refusal to pay child support and that

the respondent owes $20,000 or more in child support arrearages, the court may not waive the requirement that the

respondent pay attorney's fees and costs unless the court also finds that the respondent:

(1) is involuntarily unemployed or is disabled; and

(2) lacks the financial resources to pay the attorney's fees and costs.

Credits

Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 556, § 18, eff. Sept.

l, 1999; Acts 2003, 78th Leg., ch. 477, § 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1262, § 1, eff. Sept. 1, 2003; Acts

2005, 79th Leg., ch. 253, § 1, eff. Sept. 1, 2005.

WESTI.AW @2016 Thomson Reuters. No claim to original U.S. Gow~rnment Works. 1

§ 157.167. Respondent to Pay Attorney's Fees and Costs, TX FAMILY§ 157.167

Notes of Decisions (74)

V. T. C. A., Family Code§ 157.167, TX FAMILY§ 157.167

Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

WEsnAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2

§ 157.263. Confirmation of Arrearages, TX FAMILY§ 157.263

V.T.C.A, Family Code§ 157.263

§ 157.263. Confirmation of Arrearages

Effective:September1,2011

Currentness

(a) 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.

(b) 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.

(b-1) In rendering a money judgment under this section, the court may not reduce or modify the amount of child support

arrearages but, in confirming the amount of arrearages, may allow a counterclaim or offset as provided by this title.

(c) If the amount of arrearages confirmed by the court reflects a credit to the obligor for support arrearages collected

from a federal tax refund under 42 U.S.C. Section 664, and, subsequently, the amount of that credit is reduced because

the refund was adjusted because of an injured spouse claim by a jointly filing spouse, the tax return was amended, the

return was audited by the Internal Revenue Service, or for another reason permitted by law, the court shall render a new

cumulative judgment to include as arrearages an amount equal to the amount by which the credit was reduced.

Credits

Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by Acts 2003, 78th Leg., ch. 610, § 4, eff. Sept. 1,

2003; Acts 2007, 80th Leg., ch. 972, § 24, eff. Sept. 1, 2007; Acts 2011, 82nd Leg., ch. 508 (H.B. 1674), § 5, eff. Sept. 1, 2011.

WESTI..AW @2016 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 157.263. Confirmation of Arrearages, TX FAMILY§ 157.263

Notes of Decisions (54)

V. T. C. A., Family Code§ 157.263, TX FAMILY§ 157.263

Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

WESTI.AW @2016 Thomson Reuters. No claim to original U.S. Government Works. 2

Tab 3

Mhl'IO n$t 1 l£1£P

..

·

:,/'f I f.E,

•

dlllLD u•••"IIT 1uvu•nN

NON-CUSTODIAL PARENT'S AFFIDAVIT OF DIRECT PAYMENTS

MC: OAOCase#: 0(!)/IJ36IO/

Note: This form is used to document child and medical support paymenlS made dlrutly to the custodial parent by the

non-eustadlal parent (in any form), Including payments received in the form of cash or check or ftom a Military

Allotment. Trust Fund or Escrow Acco\lDt, This exdades payments ~do through a county registey or State

Disbursement Unit (SDUl.

SUpport Payments Made Directly to the Custodial Parent by the Non-Custodial Parent

• Includes Payments In thtt fonn ol cub or check or &om a Milltary Allotment, Trust Fund or Bsc:zow Accowu

• Eir:dudes Payments made through tho County lbgiatry or State Disburscmonc Unit (SDU)

12

'-"

-· '

s -01.

. ··~,-

1 t)lfNl.4}0

,. ,:x».tJD

-b11r. ;· ;.... A.mouat: -•;

1:da~- l:J.oc,••CI'•

•.Dau.::--. ; •,Aitl01111t

0

: • :Date·=·. l; '·a.i..l.uiiU · -'. . Ddte'.:.- 'Y.Aiiulmit!- 1 :

,., 111 101 10' ,2_0C0,DO •

LC 21i lnti .IJ 0"'1.t1ll

~ 1, l~i o4 Id.()1/(J .116 •

Ir 2.8 CJIJI"-, tlf/0• tlO

'ot: :l• iQi 3'15.00

~l'K' Ill!; J0,000,0(.? •

I t,o,;,,DO •

IOU6 D' l.1t.O•OC

eau.. ,11 DI Ed/\ObOQ2,02 8 Tolal or all direct p1:,n&cD111 jJ.'7, ,635. ~

, the Mn-custodial parent:

• Certify that either: (Please select one of the options below)

C! I have not made any support payments (in any fbnn) directly to._ _ _ _ _ _ _ _ __. the non-custodial

parent, and aay payments 1 made were senl through lhe eounly registry or the State Disbursement Unit (SDU) !!:

111. the list of aupport pa)'DlCntS provided. below (lni;tudJng all datu and amounts} is a correct list of _paym.earts I made

dil'ectly to ]2'}QQl!,i 5(l,JJLf,. • the custodial parent. and that these payments were not sent through the

county registry or tho State Disbursement Unit (SDU)

• aoknowledgc that l will not receive credit for any support payments listed on this form until credit for these payments is

agreed to by the custodial parent or approved by tho eourt.

• authorize and request the Office of the Attorney General ofToxaa to disclose this document. in its entirety, to

::B4QOK.f. Mu, t'.. (the person from whom 1he above Sllpport pa)'D1CntS were made) and file it with the court.

~ - . ... s'- ~/).JJ-::: 1>a1o:Oa/o,J/.1,016"

State ofTGXII&

County of ~ , j , r

SUBSCRIBBDAND SWORN TO BEFOR.EME, tha undersigned Notuy Public, ~'1JaQIO:laS: C2Sf-n,,we,-

_ _ _ _ _ ___, chis.J:L_ day of 1Ykrr:h ,20.!L_.

THOMAS OSJMEVER

Nolary Publle, State of T8llas

Co~fil¥1\fPlf/lY the right to RYtew and request '°rrectfon of bltormadon on this form.

•

I ,BIT

PEnTIONER'S

WIie

I w

•,

JPMorganO

Private Bank

March 04, 2006 ~

Account Number: - 2 5 5 3

j IMAGES FOR ACCOUHl'

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0091130849129 MAR 09 II0000005354 $100.00 OD1030505731 MAR 14 #0000005355 $223.11 000330695916 MAR 17 ICIOOC00S358 $38D.24

000&:10265887 MAR 20 #0000005357 $416.30 000SS0264081 MAR 20 #0000006:l&S $670,S6

008830265579 MAR 07 IOQ00005390 $560.00 0033S0420235 MAR 17 #0000005391 $196.90

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~130663507 A?R 04 IIOOOOOOS394 $1,020.00 000830743001 MAR 21 I000000S39f'2B3,91

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000400658377 MAR 21 II0000006387 $43.00

I •

CHASEO FDRVOURPRO'IECTION M_W.11118 COPY

OFFICIAL CHECK

Customer Copy

11/01/2007

~ r CARTER M BRUCE

$ IIHHA:tAA'"3,000.Q0 -

Daer. JPMORGAN CHASE BANK, N.A.

. -~~~INF<IIIIA110N

..... ·•···········•··· ... ........ .. ......... ... ·······' ..... . ... .. . .. ... ..

NON NEGOTIABLE

.

Date 11/0112007

· J.P.Morgan

Prlnuuy Account: 3990

For lhe Period Sff1D9 to Sl29I09

JPM011 n Classic Checking W/lnterast

990 CARTER MBRUCE '. . . ......

-

Cll)36B0111903 MAY 21 ifl4IOOOOOOOOO $2.000.IIO

Pqe5of6

· JJ?.Morgan

Primary Account: 3990

For lhe Period ffl/09 to 7131189

OOIQI07656SJ JUL 21 #CIOOOOIOlOS SI ,CIOIUIO

G07580594197 JUl.22 IOOOOIIOlllPJ $485.00

•

Vou canconwnlenlly view ya&.l'fJfa1lmolt andfnmtand IIBck fmaoesaf demed c:hadm Ol'l!in9. You cen also sfgrl ap flra Papailees Slalellld. which aa-you fD Slap l80llivin91ho PIii*' vmfmof

,-ir8lallmelltallogolher. To end orilrmma hfonnalloll wit ~

Paga12ol16

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.,.

· J.P.Morgan

PrffflalY Account: 3990

Fortlte Period 811119 to 8131119

an Classic Checking W/lnterest

0 CARTER M BRUCE

:n1 0t.1~~,.-:.

s

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PagelOofll

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J.P.Morgan

Prlblilry Account: 39911

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Primary .Aecount: 3990

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Pdmary .Account: 3990

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Primary ACCDIDlt: 3990

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Primary Account: 3990

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Primary Account: 3990

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3990 Prfmary Account: l 3990

CARTER M BRUCE For the Period 10l1/09 to 1ctr.JGIOI

Deposits & Credits

Date l>oscflptlon Amount

_10/05 -·····Funds Transferred From Pm _NC# 072434006 To ODA A/C#- 3990 Phone_lnstruclions_From Ctient .. -........... . .....··········- .. .................~ .?.,~. ~-~---

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_10/22 _ Funds Tranafenad From Pm AJC# 072434006_To ODA A/C#

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Total Daposlts & Credits S35,000.22

Checks Paid

Check Date Chack Date Chec:k Data

Number Paid Amount Number Paid Amount Number Paid Amount

3i54 10/05 ......

3i90 .,. .............., , .. ______ 10/23. ..,. ____ 1.245,0(,. .

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,. _ , . . .. ... 3192 10/22 269.71 3205 10/16 400.00

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5,178.71

Total Value (122,414.12}

Check Data

Number Paid Deacrlptlon Amount

3183 10'07 CHECK# 3183 HEB #202 CHECKPAYMT BOC ID: HE8STRE202 615.16

3187 .... . . .... . 10/22. CHECK# 3187 TRIM TECH OF AUS CHECK PMTS ARC JO: 1742780301 . . . . .......... ....·-·--··-·--,coom,

'3,j99 ....... -...... ···1012f· ··- CHECK# 3189 .. AOT SECURITY SER SECURITY ~~C 10: 8880931331 . 35.79

'3j:jo"""'"" ........ ····· 1Q.12(°.......... .. CHECI< # 3210 .. . CRUMPPWMBINGSUP PURCHASE AUSTTX POP ID: 3l83693141 118.43

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Primary Account: 1 3990

For the Period 10/1109 to 10130/Cl9

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Prbna,y Account: 3NO

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Primary Account: 3990

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