Send this document to a colleague

Close
This Window

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE INTEREST OF J.I.M.,

A CHILD

§

§

§

§

§

§

No. 08-05-00302-CV

Appeal from the

383rd Judicial District Court

of El Paso County, Texas

(TC# 99-CM5892)

O P I
N I O N

This appeal arises from a trial court's order granting petition to
modify the parent-child relationship in favor or J.I.M.'s father James A.
Martinez. The order simultaneously denied a motion for enforcement of
child support filed by J.I.M.'s mother, Ana Carroll. Appellant, Ana
Carroll, raised two issues for our review. In Issue One, she contends the
trial court abused its discretion by retroactively reducing Mr. Martinez's
past-due child support obligations, which she asserts had been reduced to
a final judgment pursuant to Section 157.261(a) of the Texas Family Code.
In Issue two, Ms. Carroll argues the trial court also abused its
discretion by refusing to enter a judgment in response to her motion for
enforcement for unpaid child support. We reverse and remand.

Ana Carroll and James Martinez were divorced on December 16, 1999.
There is one child from the marriage, J.I.M., who was born in June 1997.
In the final divorce decree, Ms. Carroll and Mr. Martinez were
appointed joint managing conservators, with Ms. Carroll granted the right
to establish the primary residence of the child. Mr. Martinez was
initially ordered to pay child support in the amount of $800 per month
beginning January 1, 2000. Pursuant to a formula in the final divorce
decree, upon any change in Mr. Martinez's salary after October 1, 2000,
the monthly child support amount would automatically adjust by a
percentage equal to the percentage change in Mr. Martinez's salary. Mr.
Martinez was also ordered to pay Ms. Carroll, twenty percent of the net
amount of bonuses received by him from his employer as additional child
support, beginning December 1, 2000. Finally, Mr. Martinez was required
generally to notify Ms. Carroll of changes in his salary, including
bonuses.

In the three years following the divorce decree, Mr. Martinez's salary
and employment changed several times. On October 8, 2002, Mr. Martinez
filed a motion to modify his child support obligation pursuant to Section
156.401 of the Texas Family Code. The petition requested a reduction of
support due to a material and substantial change in circumstances, and
because the previously ordered support payments were not in compliance
with the support guidelines provided by Chapter 154 of the Code. See
Tex.Fam.Code Ann. § 156.401(a)(Vernon 2002).
(1) At the time the motion was filed, Mr. Martinez's child
support obligation under the divorce decree was in excess of $2,000 per
month.

Ms. Carroll was served with the petition on October 23, 2002 and filed
her answer on October 28, 2002. On November 19, 2003, Ms. Carroll filed a
motion for enforcement of child support under Chapter 157 of the Family
Code. In her motion, Ms. Carroll requested that the trial court find Mr.
Martinez in contempt for failing to pay the full amount of child support
based on salary increases and bonuses received between December 2002 and
November 2003. Ms. Carroll moved for the entry of a money judgment
for the total amount of the arrearages, including interest, attorney's
fees, and costs.

On December 10, 2003, the trial court heard evidence and argument
regarding both motions. Mr. Martinez testified that at the time he filed
his motion, he was paying $1,200 per month. He argued that the $1,200
payments constituted the statutory maximum provided by the support
guidelines, and because there was no evidence that the child's needs
exceeded that amount, he was entitled to a reduction. However, he admitted
that his payments were less than the amount he was obligated to pay under
the divorce decree which was still in effect at the time of the hearing.
Without disagreeing that he had failed to comply with the divorce decree,
Mr. Martinez stated that his motion to modify included a request for
a retroactive reduction of his obligation back to the date of his motion
to modify. Ms. Carroll argued that despite Mr. Martinez's requested
reduction, he remained obligated to make support payments in accordance
with the decree, and that because he had failed to pay in full, she was
entitled to a money judgment for the amount of the arrearage.

The trial court entered a judgment granting Mr. Martinez's motion to
modify, and denying Ms. Carroll's motion for enforcement on June 14, 2005.
Relying on Tex.Fam.Code Ann. § 156.401, the trial court determined that it
could modify the order as of the date of service of citation or
appearance. Furthermore, the court held that because the modification
resulted in a reduction of Mr. Martinez's support obligation during the
pendency of his motion to modify, the court denied Ms. Carroll's request
for enforcement of the terms of the divorce decree during the same time
period as moot. It also ordered each party to bear their own attorney's
fees and costs. Ms. Carroll has appealed the trial court's denial of her
motion to enforce in two issues. In Issue One, she argues that trial
court's decision to retroactively reduce a child support obligation, which
has not been paid, as part of a modification proceeding constitutes an
abuse of discretion. In Issue Two, Ms. Carroll contends that the trial
court had no discretion to refuse to enter a judgment on a proven
arrearage in response to a motion for enforcement.

ANALYSIS

Generally child support issues are reviewed under the
abuse of discretion standard. See Lindsey v. Lindsey, 965 S.W.2d
589, 592 (Tex.App.--El Paso 1998, no pet.). In determining whether an
abuse of discretion has occurred the question is not whether the reviewing
court would make the same decision given the same facts and circumstances
as presented in the trial court; but whether the trial court acted without
reference to any guiding and principles. Duran v. Garcia, 224
S.W.3d 309, 313 (Tex.App.--El Paso 2005, no pet.), citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985),
cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721
(1986). As a result, a trial court abuses its discretion by misapplying
the law. See Concha v. Concha, 808 S.W.2d 230, 231 (Tex.App.--El
Paso 1991, no writ). When statutory construction is required to determine
whether the trial court acted in accordance with the law, the reviewing
court conducts a de novo review. See NCED Mental Health, Inc.
v. Kidd, 214 S.W.3d 28, 32 (Tex.App.--El Paso 2006, no pet.). A
statute must be construed to give effect to all its provisions, with the
ultimate objective being to determine and give effect to the Legislature's
intent. See City of San Antonio v. City of Boerne, 111 S.W.3d 22,
25 (Tex. 2003).

In the situation before us, the trial court was presented with two,
potentially conflicting motions; one to modify and reduce a child support
obligation, and one to enter judgment on an arrearage. The trial court
concluded that its power to decrease Mr. Martinez's support obligation
under Sections 156.401 and 154.126 included the ability to erase Ms.
Carroll's claim for arrearages, rendering her claim for enforcement
moot.
(2) In doing so, the trial court failed to recognize the
distinction between its broad discretion to modify child support
obligations, and its lack of discretion to enter judgment on a proven
arrearage.

Mr. Martinez's motion to modify was filed pursuant to Section 156.401
of the Texas Family Code. In October of 2002, when the motion was filed,
Section 156.401 paragraphs (a) and (b) provided:

(a) Except as provided by Subsection (b), the court may modify an order
that provides for the support of a child if:

(1) the circumstances of the child or a person affected by the order
have materially and substantially changed since the date of the order's
rendition; or

(2) it has been three years since the order was rendered or last
modified and the monthly amount of the child support award under the order
differs by either 20 percent or $100 from the amount that would be awarded
in accordance with the child support guidelines.

(b) a child support order may be modified only as to obligations
accruing after the earlier of:

(1) the date of service of citation; or

(2) an appearance in the suit to modify.

Tex.Fam.Code Ann. § 156.401(a) and (b)(Vernon 2002).

While Mr. Martinez's motion to modify was pending, Ms. Carroll filed a
motion for enforcement of the existing child support order, contending
that Mr. Martinez was not paying the required amount of child support. Ms.
Carroll's motion was filed pursuant to Sections 157.261, 157.262, and
157.263. The relevant paragraphs of these sections state:

§ 157.261. Unpaid Child Support as Judgment

(a) A child support payment not timely made constitutes a final
judgment for the amount due and owing, including interest as provided by
this chapter.

(b) For the purposes of this subchapter, interest begins to accrue on
the date the judge signs the order for the judgment unless the order
contains a statement that the order is rendered on another specific
date.

Tex.Fam.Code Ann. § 157.261 (Vernon 2002).

§ 157.262. Reduction of Arrearages; Abeyance of
Enforcement

(a) Except as provided by this section, in a contempt proceeding or in
rendering a money judgment, the court may not reduce or modify the amount
of child support arrearages.

Tex.Fam.Code Ann. § 157.262(a)(Vernon 2002).

§ 157.263. Confirmation of Arrearages

(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.

Tex.Fam.Code Ann. § 157.263 (Vernon 2002).

As a result of the interaction of these provisions, the trial court's
generally broad discretion to modify child support obligations is limited
by a mandatory duty to render judgment on a proven arrearage.
(3) See Williams v. Patton, 821 S.W.2d 141, 145 (Tex.
1991); Marriage of Vogel, 885 S.W.2d 648, 651 (Tex.App.--Amarillo
1994, writ denied).

On one hand, the trial court has broad discretion to modify a child
support obligations. See Tex.Fam.Code Ann. § 156.401; Wright
v. Wright, 867 S.W.2d 807, 812 (Tex.App.--El Paso 1993, writ denied).
This discretion includes the ability to make a final modification
retroactively effective to the earlier of the date of service of citation,
or an appearance in the suit to modify. See Tex.Fam.Code Ann. §
156.401(b). On the other hand, a trial court "shall confirm the amount of
arrearages and render one cumulative money judgment" when presented with
an enforcement motion and proof of an arrearage. Tex.Fam.Code Ann.
§ 157.263(a); see also Tex.Fam.Code Ann. § 157.005(b)(Vernon
2002)(trial court retains jurisdiction to confirm amount of arrearages and
render judgment for past due child support). The code does not provide an
exception to the trial court's duty to enter judgment on a proven
arrearage during a modification proceeding. See Tex.Fam.Code Ann.
§ 157.262 and § 157.263; see also In re Gonzalez, 981
S.W.2d 313, 315 (Tex.App.--San Antonio 1998, pet. denied)(use of "shall"
in Section 157.263 indicates legislative intent to place affirmative duty
on trial court).

An order setting or modifying child support imposes an obligation to
make periodic payments in support of the child. See Tex.Fam.Code
Ann. § 154.001 (Vernon 2002). Periodic payments which accrue between the
earlier of service of citation or an appearance, and entry of a
modification order can be modified under Section 156.401. Tex.Fam.Code
Ann. § 156.401. However, the trial court's discretion to retroactively
modify the amount due during that period does not affect the obligor's
ongoing duty to pay in accordance with the previous order until the date
the modification order is entered.
(4) Whether a modification motion is pending, or not, once a
support payment has come due, any non-payment constitutes an arrearage
upon which the trial court must enter a judgment pursuant to an
enforcement motion. See Tex.Fam.Code Ann. § 157.261; see
also Tex.Fam.Code Ann. § 157.262 (pendency of a motion to modify not
included in list of exceptions).

By reducing a proven arrearage as part of its modification order, the
trial court effectively added a new exception to Section 157.262.
See Tex.Fam.Code Ann. § 157.262(b)(pendency of modification
proceeding not listed as an exception to provision that court may not
reduce or modify an arrearage). Moreover, the court's decision rendered
Section 157.263's mandate to render judgment on a proven arrearage null in
this case despite Ms. Carroll's motion. Finally, given the strong public
policy in favor of child support as a duty to the child, we cannot agree
that the Legislature intended Section 156.401 to provide an avenue for a
parent to ignore an existing support order in the hope that the trial
court will ultimately reduce his or her obligation and therefore erase an
arrearage. See George v. Jeppeson, 238 S.W.3d 463, 472
(Tex.App.--Houston [1st Dist.] 2007, no pet.), citing Williams,
821 S.W.2d at 145.

The pendency of a motion to modify does not change the obligation under
an existing order. Instead, the Legislature has provided a number of tools
and defenses for an obligor who is unable to pay all or part of the
ordered support to avoid an arrearage. See, e.g., Tex.Fam.Code
Ann. § 157.008 (Vernon 2002)(proving affirmative defenses to a motion for
enforcement of child support); Tex.Fam.Code Ann. § 156.006 (Vernon
2002)(providing that a court may render a temporary order in a suit for
modification). An obligor who chooses not to take advantage of these
provisions runs the risk of facing an arrearages judgment which the trial
court has no discretion to reduce or modify. See Tex.Fam.Code
Ann. § 157.261-157.263.

Mr. Martinez has not disputed, either in the trial court, or during
this appeal, that he failed to fulfill his child support obligation during
the pendency of his motion to modify. As such, there is no factual dispute
that Mr. Martinez was in arrears at the time the trial court entered its
modification order. In accordance with Sections 157.261 and 157.263, Ms.
Carroll was entitled to a money judgment for the total amount of the
arrearages, and the trial court had no discretion but to enter such an
order. Therefore, the trial court abused its discretion by determining
Ms. Carroll's motion for enforcement was moot. Accordingly, Issues
One and Two are sustained.

Having sustained both of Appellant's issues, we reverse the trial
court's judgment and remand the case for further proceedings consistent
with this opinion.
(5)

August 21, 2008

DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., Barajas, C.J. (Ret.), and Ables, Judge

Barajas, C.J. (Ret.)(Sitting by Assignment)

Ables, Judge (Sitting by Assignment)

1. The original petition in this case was filed in
2002, prior to the effective date of the most recent amendments to the
Texas Family Code. Accordingly, we will review and apply the relevant
provisions of the code as they existed in 2002.

2. Although Ms. Carroll's notice of appeal indicated
her disapproval with the modification, her appellate arguments are limited
to whether the trial court's denial of her motion for enforcement based on
a retroactive reduction of Mr. Martinez's support obligation. Therefore,
we will limit our discussion to the court's decision to deny the
enforcement motion. We express no opinion on the modification itself.

3. Mr. Martinez cites two published opinions which
stand for the general proposition that a trial court has the discretion to
retroactively modify, increase, or decrease a support obligation by making
the modification effective on the earlier of the date of service of
citation or appearance in the modification proceeding. Willis v.
Willis, 826 S.W.2d 700, 702 (Tex.App.--Houston [14th Dist.] 1992, no
writ); Edwards v. Edwards, 624 S.W.2d 635, 638 (Tex.App.--Houston
[14th Dist.] 1981, no writ). While we agree that generally the trial
court's discretion under Section 156.401 allows for a retroactive
reduction of support, that is not the end of the inquiry. Unlike both
Willis and Edwards, here we are faced, not only with a
motion to modify, but also with a motion for enforcement. See
Willis, 826 S.W.2d at 701 (stating that the agreed motion which was
the subject of the underlying suit was a motion to modify, not a motion
for enforcement); Edwards, 624 S.W.2d at 639 (holding that the
trial court exceeded its jurisdiction in modification proceeding by
forgiving payments accrued prior to the motion to modify).

4. In a case where the obligor has continued to make
full payments in accordance with the existing support order, the trial
court retains the discretion to make a modification order retroactive to
the date the suit was filed, or the date of service. See
Tex.Fam.Code Ann.§ 156.401(b); In the Interest of
J.G.Z., 963 S.W.2d 144, 146 (Tex.App.--Texarkana 1998, no pet.).
Should the modification result in a reduction of the child support
obligation, the obligor may be entitled to a credit to be applied to
future support payments for "overpayment" during the pendency of the
motion. See Beck v. Walker, 154 S.W.3d 895, 903 (Tex.App.--Dallas
2005, no pet.). In the alternative, the movant has the option to file a
motion for temporary orders. See Tex.Fam.Code Ann. § 156.006
(Vernon 2002). If the trial court is persuaded to enter such an order, the
obligor may be able to avoid over or under-payment during the modification
proceeding.

5. In her prayer for relief, Ms. Carroll asks this
Court to render judgment in her favor for the "full child support
arrearage in the amount of $7,776.82 plus interest." Because the trial
court determined that the issue of arrearages was moot, we do not have the
benefit of a fact finding establishing the actual amount of arrearages
owed. Without such a finding, we cannot render a money judgment as Ms.
Carroll requests. On remand, the trial court need only review the existing
record to determine the amount due in arrearages so that it may enter a
judgment in accordance with Section
157.261.