Appellate child support decisions from Houston Courts of Appeals Failure to timely file motion for new trial waived complaint Ellis v. Eadie (Tex.App.- Houston [14th.] Mar. 25, 2010)(per curiam) (agreed child support review order, no timely motion for new trial filed) AFFIRMED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00560-CV Joseph Ellis v. Tamiko Eadie Appeal from 310th District Court of Harris County Trial Court Judge: Lisa A. Millard The purpose of chapter 233 of the Texas Family Code is to enable Title IV-D agencies like the Attorney General’s Office to take expedited administrative actions to establish, modify, and enforce child support and medical support obligations, to determine parentage, or to take any other action authorized or required under Part D, Title IV, of the Social Security Act (42 U. S.C. § 651, et. seq.). Tex. Fam. Code Ann. § 233.001(a) (Vernon 2008). To fulfill that purpose, the provisions of chapter 233 promote expeditious resolution of the administrative proceedings. See In re Office of Attorney General of Texas, 264 S.W.3d 800, 806 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding). In this case, the Family Code requires a party requesting reconsideration of an agreed order to file a motion for new trial before the 30th day of the confirmation of the order by the trial court. In this case, appellant filed no motion for new trial. Therefore, appellant waived his complaint about the child support to which he agreed. See Tex. R. App. P. 33.1; Tex. Fam. Code Ann. § 233.018(a)(3) (Vernon 2008). Because he waived error, appellant’s issue is overruled. Inadequate record dooms appeal of child support calculation Matthews v. McCall Northrup (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(Jennings) (child support determination of amount, insufficient record waiver of issue urged on appeal) Because Matthews has not supplied this Court with a statement of facts with which to review the trial court’s determination of deemed income from the Partnership in calculating his child support obligation, we hold Matthews has waived review of his issue. AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Higley and Sharp 01-09-00063-CV Matthew A. Matthews v. Elizabeth McCall Northrup Appeal from 245th District Court of Harris County Trial Court Judge: Hon. Annette Kuntz The trial court’s Final Order in Suit Affecting the Parent-Child relationship issued on October 14, 2008 indicated that “no record of testimony was requested or made.” The Family Code provides that “[a] record shall be made as in civil cases generally unless waived by the parties with the consent of the court.” Tex. Fam. Code Ann. § 105.003(c) (Vernon 2008). Although the trial court’s order does not say that Matthews “waived” the making of a record at the October 14, 2008, “[a] party . . . may waive the making of a record either by express written agreement or by failing to object to the lack of a record during the hearing.” In re D.J.M., 114 S.W.3d 637, 639 (Tex. App.—Fort Worth 2003, pet. denied). The record does not show that Matthews objected to the the statement in the trial court’s October 14, 2008 order that “no record was requested or made.” In Interest of HGL (pdf) (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Brown) (child-support obligor, appeals the trial court's judgment denying his motion to confirm child-support arrearages and for declaratory judgment) AFFIRMED: Opinion by Justice Brown Before Justices Frost, Brown and Boyce 14-08-00087-CV In the Interest of H.G.L. and A.R.L. Appeal from 257th District Court of Harris County Trial Court Judge: Judy L. Warne No child support credit on arrearage accumulated while father was in jail In Interest of ADS, Jr. (Tex.App.- Houston [14th Dist.] Sep. 22, 2009)(Seymore) (Attorney General child support enforcement; no credit against judgment on arrears for time obligor was imprisoned, contempt order for failure to pay child support not challenged) AFFIRMED AS MODIFIED: Opinion by Justice Seymore Before Justices Brock Yates, Seymore and Brown 14-08-00147-CV In the Interest of A.D.S, Jr. Appeal from County Court at Law No 2 of Galveston County Trial Court Judge: Mary Nell Crapitto OAG v. McBee (Tex.App.- Houston [1st Dist.] Sep. 17, 2009) (Bland) (child support arrearage, adjustment of amount disapproved, offset claim disallowed) REVERSE TC JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Jane Bland Before Justices Taft, Bland and Sharp 01-08-00433-CV Office of the Attorney General v. Robert Sean McBee Appeal from 306th District Court of Galveston County Trial Court Judge: Hon. Janis L. Yarbrough Amount of monthly child support was added via nunc pro tunc order; original order only had a blank space In Interest of MV, MV and EV (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Yates) (child support arrearage based on nunc-pro-tunc judgment, amount of child support had not been filled in on the original order) (effective date of nunc pro tunc judgment as to support amount) (clerical error vs. judicial error, NPT order adding monthly amount to blank space on decree not deemed judicial error and not void) AFFIRMED: Opinion by Justice Brock Yates Before Chief Justice Hedges, Justices Brock Yates and Frost 14-08-00418-CV In the Interest of M.V, M.V. and E.V. Appeal from 311th District Court of Harris County Trial Court Judge: DOUGLAS C. WARNE No Trial Court Discretion in Arrearage Calculation Chenault v. Banks (Tex.App.- Houston [14th Dist] Aug. 20, 2009) (Yates) (calculation of child support arrearage and interest, no trial court discretion, mechanical application) REVERSED AND REMANDED: Opinion by Justice Brock Yates Before Justices Brock Yates, Guzman and Sullivan 14-07-01094-CV Deborah Chenault f/k/a Deborah Paul v. Patricia Banks, Independent Executrix for the Estate of Horace A. Paul Jr., Deceased Appeal from 246th District Court of Harris County Trial Court Judge: Jim York Federal tax refund intercept not proper as long as no default occurred In Interest of RCT (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Substituted Op. By Frost) (CHILD SUPPORT CASE: retroactive child support, child support lien, federal tax refund intercept) AFFIRMED AS MODIFIED: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost 14-07-00642-CV In the Interest of R.C.T., L.J.T. and C.L.T. Appeal from 311th District Court of Harris County Trial Court Judge: Douglas C. Warne We overrule the Attorney General's second issue and hold that the trial court properly ordered the Attorney General to return John's federal income-tax refund. Default Judgment in suit to confirm child support arrearage set aside - Proper notice was not given: Mallory v. Mallory and OAG (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Substituted Opinion by Brown) (post-judgment default judgment in child support case without proper notice to defendant was reversible error) , insufficient notice)(default judgment in child support arrearage confirmation action was error)(objection to affidavit based on best knowledge and belief not preserved for appellate review) REVERSED AND REMANDED: Opinion by Justice Jeff Brown Before Chief Justice Hedges, Justices Guzman and Brown 14-06-01009-CV Joel Mallory v. Sharon W. Mallory and The Office of the Attorney General of Texas Appeal from 310th District Court of Harris County Trial Court Judge: LISA A. MILLARD (post-answer default judgment reversed) Tax Refund should not have been intercepted and applied to retroactive child-support In Interest of RCT, LJT, CLT (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Frost) (child support lien by operation of law, definition of arrearage, federal tax intercept) AFFIRMED AS MODIFIED: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost 14-07-00642-CV In Interest of R.C.T., L.J.T., C.L.T. Appeal from 311th District Court of Harris County Trial Court Judge: Douglas C. Warne Attorney's Fees in SAPCR divorce improperly characterized as additional child support McCloskey v. McCloskey (Tex.App.- Houston [14th Dist.] Apr. 2, 2009)(Substituted opinion by Hedges) (SAPCR divorce attorneys fees cannot be ordered as additional child support enforceable by contempt) AFFIRMED AS MODIFIED: Opinion by Chief Justice Hedges Before Price, Chief Justice Hedges, Justice Boyce 14-06-00470-CV Christopher Joseph McCloskey v. Anne Miriam McCloskey Appeal from 387th District Court of Fort Bend County Trial Court Judge: Robert J. Kern Hernandez v. Hernandez (Tex.App.- Houston [1st Dist.] Mar. 26, 2009)(Higley) (OAG suit, child support, nunc pro tunc judgment vacated) VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Higley Before Chief Justice Radack, Justices Keyes and Higley 01-06-00901-CV George Hernandez v. Maria Guadalupe Hernandez Appeal from 311th District Court of Harris County Trial Court Judge: Hon. Doug Warne Dissenting Opinion by Justice Keyes In the Interest of D.A.P. (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Seymore) (child support, OAG suit UCCJEA, modification, order on SAPCR counterclaim reversed, no jurisdiction over out-of-state parent due to failure to serve with citation UCCJEA) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore Before Justices Fowler, Frost and Seymore 14-06-00975-CV In the Interest of D.A.P Appeal from 246th District Court of Harris County Trial Court Judge: Jim York McCloskey v. McCloskey (Tex.App.- Houston [14th Dist.] Sep. 9, 2008)(Hedges) (attorney's fees incurred in SAPCR litigation not child support, child support, scope of remand) AFFIRMED: Opinion by Chief Justice Hedges Before Price, Chief Justice Hedges, Justice Boyce 14-06-00470-CV Christopher Joseph McCloskey v. Anne Miriam McCloskey Appeal from 387th District Court of Fort Bend County In Interest of DCM, LGM (Tex.App.- Houston [14th Dist.] Sep. 9, 2008)(Hedges) (SAPCR modification, mischaracterization of attorney's fees as child support corrected) AFFIRMED: Opinion by Chief Justice Hedges Before Price, Chief Justice Hedges, Justice Boyce 14-06-00844-CV In the Interest of D.C.M. and L.G.M Appeal from 387th District Court of Fort Bend County Trial Court Judge: Robert J. Kern Hernandez v. Hernandez (Tex.App.- Houston [1st Dist.] Aug 28, 2008)(Higley) (OAG child support enforcement suit, NPT nunc pro tunc order void) VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Higley Before Chief Justice Radack, Justices Keyes and Higley 01-06-00901-CV George Hernandez v. Maria Guadalupe Hernandez Appeal from 311th District Court of Harris County Trial Court Judge: Hon. Doug Warne Dissenting Opinion by Justice Keyes In Re OAG of Texas (Tex.App.- Houston [14th Dist.] Aug. 19, 2008)(Brown)(bill of review, child support) (petition for mandamus challenging order lifting child support judgment and lien denied) MOTION OR WRIT DENIED: Opinion by Justice Jeff Brown Before Justices Brock Yates, Guzman and Brown 14-08-00665-CV In Re The Office of the Attorney General of Texas Appeal from 312th District Court of Harris County Trial Court Judge: Hon. David D. Farr ELSEWHERE: Supreme Court vacates TRO against the Office of the Attorney General in Dallas case In re OAG, No. 08-0165 (Tex. 2008) (per curiam) (child support collection dispute, temporary orders void; set aside by mandamus) Attorney General loses appeal in non-paternity - paternity case In the Interest of KRS (Tex.App.- Houston [14th Dist.] June 24, 2008)(Yates) (paternity, nonpaternity, failure to present error in opening brief proves fatal to appeal, rule enforced, summary judgment affirmed in suit to deny presumptive paternity and establish biological paternity in which defendant had asserted statute of limitations defense and had successfully moved for exclusion of OAG's summary judgment evidence) AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Guzman and Brown 14-07-00080-CV In the Interest of K.R.S., a child Appeal from 306th District Court of Galveston County Appellant The Office of Attorney General Attorney: John B. Worley Respondent's Attorneys: Otto D. Hewitt, III James R. Ansell Challenge to default judgment via Restricted Appeal fails Mbonu v. Office of the Attorney General (Tex.App.- Houston [1st Dist.] May 22, 2008)(Radack) (family law, paternity, retroactive child and medical support, restricted appeal of UIFSA judgment, restricted appeals cases) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Jennings and Bland 01-07-00659-CV Chike Rapulueke Mbonu v. Office of the Attorney General Appeal from 328th District Court of Fort Bend County Trial Court Judge: Hon. Ronald R. Pope Attorneys: John Oghenewoke Mukoro | AAGs: Martin J. Grimm Rande K. Herrell, John B. Worley, Michael D. Becker Trial Court Rulings affirmed in two appeals from modification cases McLane v. McLane (Tex. App.- Houston [1st Dist.] May 1, 2008)(Opinion on motion for rehearing by Hanks) (child support decrease, intentional underemployment) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Taft, Hanks and Higley 01-06-00634-CV Michael McLane v. Sandra Helene McLane Appeal from 309th District Court of Harris County Trial Court Judge: Hon. Frank B. Rynd ("Michael McLane appeals the trial court’s decision modifying his child support payments. In two issues, Michael complains of the trial court’s finding that he was intentionally underemployed and its refusal to retroactively award a decrease of child support. ... We affirm the trial court’s modification order."). McLane v. McLane (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(First, superseded opinion by Hanks) (SAPCR, MTM motion to modify child support, voluntary underemployment) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Taft, Hanks and Higley 01-06-00634-CV Michael McLane v. Sandra Helene McLane Appeal from 309th District Court of Harris County (Judge Frank Rynd) McMichael v. McMichael (Tex.App.- Houston [1st Dist.] Dec. 13, 2007)(Jennings) (SAPCR, motion to modify MTM, child support increase) AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Nuchia, Jennings and Keyes 01-06-01037-CV Henry Cleburne McMichael, IV v. Jackie McMichael Appeal from 311th District Court of Harris County (Hon. Doug Warne) Grandparent Gets Custody of Kids in Parents' Divorce - Court of Appeals affirms managing conservatorship to grandparents notwithstanding presumption that favors natural parents Bill of Review denied in challenge to decree of divorce with nonmarital child Thomas v. Thomas (Tex.App.- Houston [14th Dist.] Aug. 23, 2007)(Seymore)(bill of review denied, divorce, nonmarital child) AFFIRMED: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-06-00069-CV William Robert Thomas v. Patricia Russell Thomas Appeal from 245th District Court of Harris County (Judge G. Annette Galik) In re Louis Charles Munks (Tex.App.- Houston [1st Dist] Jun. 28, 2007)(Higley)(mandamus) (child support contempt) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Higley (Before Chief Justice Radack, Justices Keyes and Higley) 01-07-00094-CV In re Louis Charles Munks, Jr. Appeal from 247th District Court of Harris County (Trial court judge: Hon. Bonnie Hellums) Default Order in SAPCR Affirmed on Appeal Harris v. Burks (Tex.App.- Houston [1st Dist.] Jun. 21, 2007)(Radack)(SAPCR, default judgment affirmed) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Keyes and Higley 01-06-00128-CV William Francis Harris, Sr. v. Thyra Burks Appeal from 247th District Court of Harris County (Honorable Bonnie Hellums) Payment of Contractual Alimony May Not Be Enforced by Putting Debtor in Jail In Re Alvin Green, No. 06-0496 (Tex. Apr. 20, 2007)(per curiam) (contractual alimony not enforceable by contempt, habeas granted) Alvin Green argues he cannot be imprisoned for nonpayment of a contractual alimony obligation incorporated into his divorce decree. We agree that a court order to pay spousal support is unenforceable by contempt if the order merely restates a private debt rather than a legal duty imposed by Texas law. Because the district court’s decree was not “spousal maintenance” ordered under the Family Code but rather was issued solely on the basis of the parties’ private alimony contract, we grant Alvin’s writ of habeas corpus and order him discharged. In re Louis Charles Munks (Tex.App.- Houston [1st Dist] Jun. 28, 2007)(Higley)(mandamus) (child support contempt) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Higley (Before Chief Justice Radack, Justices Keyes and Higley) 01-07-00094-CV In re Louis Charles Munks, Jr. Appeal from 247th District Court of Harris County (Trial court judge: Hon. Bonnie Hellums) In Re Brownhill (Tex.App.- Houston [14th Dist.] Jun. 7, 2007)(Edelman)(child support contempt) [child support enforcement, contempt order void, due process denied, ability-to-pay defense] MOTION OR WRIT GRANTED: Opinion by Justice Edelman Before Justices Brock Yates, Edelman and Seymore 14-07-00346-CV In Re: James Steven Brownhill Appeal from 310th District Court of Harris County (Judge Lisa A. Millard) Beistel v. Allen (Tex.App.- Houston [1st Dist.] May 31, 2007)(Bland)(child support) [family law, child support, termination of wage withholding order] REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland Before Chief Justice Radack, Justices Jennings and Bland 01-06-00276-CV Elizabeth Beistel v. Robert Theodore Allen, Jr. Appeal from 246th District Court of Harris County (Hon. Jim York) Appellant Elizabeth Beistel appeals the trial court’s termination of two wage-withholding orders against appellee Theodore Allen. In four issues, Beistel contends (1) the trial court lacked subject matter jurisdiction to terminate the wage-withholding orders, (2) Beistel was an indispensable party to the termination hearing, (3) the trial court abused its discretion in terminating the wage-withholding orders because the evidence is legally and factually insufficient to support the trial court’s findings that Allen overpaid his child support obligation and that no child support was due and owing, and (4) the trial court terminated the wage-withholding orders based on an incorrect legal theory. We conclude that (1) the trial court had jurisdiction to terminate the wage-withholding orders, (2) Beistel made a general appearance at the termination hearing, and (3) the trial court abused its discretion in terminating the wage-withholding orders. We therefore reverse. Office of the Attorney General of Texas v. Joe V. Phillips Tex.App.- Houston [1st Dist.] May 31, 2007) (Hanks)(void judgment, past child support, OAG, AG cases) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Hanks Before Justices Nuchia, Hanks and Bland 01-05-00973-CV The Office of the Attorney General of Texas v. Joe V. Phillips Appeal from 311th District Court of Harris County (Judge Doug Warne) Because we have concluded that neither the 1986 decree nor the 1992 order is void, we reverse the judgment confirming arrears at $0 and ordering the Attorney General to return funds levied from Phillips's bank account. We remand Phillips's motion to confirm child support arrearages to the trial court for further consideration. Default Judgment in Parentage Action Reversed in Part in Restricted Appeal, No evidence regarding father's earnings, retroactive child support factors, or best interest in denying any and all visitation - Bio Dad waived statute of limitations defense by failing to plead it. Miles v. Peacock and AG (Tex.App.- Houston [1st Dist.] Apr. 19, 2007)(Bland) [family law, restricted appeal, default judgment, retroactive child support, paternity, limitations] AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland (Before Chief Justice Radack, Justices Jennings and Bland) 01-06-00313-CV In The Matter of the Marriage of Bridget Peacock and Carnell Peacock Appeal from 247th District Court of Harris County (Judge Bonnie Hellums) We conclude that Miles has waived any statute of limitations defense and therefore affirm that portion of the trial court’s judgment adjudicating his paternity of N.S.P. With respect to the portions of the judgment awarding child support and denying possession, we conclude that insufficient evidence supports the trial court’s findings and therefore reverse and remand for further proceedings. Duruji v. Duruji (Tex.App.- Houston [14th Dist.] Feb. 27, 2007)(Justice Fowler)[family law, divorce, foreign decree, res judicata, attorneys fees awarded as child support] TEXAS SUPREME COURT CASES ON CHILD SUPPORT ISSUES Iliff v. Iliff, No. 09-0753 (Tex. Apr. 15, 011)(Wainwright)(child support based on earning potential rather than actual income; voluntary unemployment or underemployment, intent element) In Re Zandi, No. 070919 (Tex. May 30, 2008)(per curiam) (family law case, child support contempt, habeas corpus granted) In the Interest of A.M. and B.M., Minors, No. 03-0509 (Tex. May 5, 2006)(Opinion by Justice David Medina) [child support, child custody, reimbursement claim, offset after custody switch to obligor parent] Kiefer v. Touris (Tex. May 26, 2006)(bill of review, paternity, nonpaternity) In re A.M and B.M. (Tex. May 5, 2006)(custody switch and child support, off-set and reimbursement claims) In Interest of MCC, a minor, No. 04-0787 (Tex. Jan. 27, 2006)(per curiam opinion)(child support arrears) |
| Family Law Decisions from the Texas Supreme Court and from the Houston Courts of Appeals Houston Opinions |
