Chenault v. Banks (Tex.App.- Houston [14th Dist] Aug. 20, 2009) (Yates)
(calculation of child support arrearage and interest, no trial court discretion)
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
O P I N I O N
Appellant Deborah Chenault, f/k/a Deborah Paul, appeals the trial court's order affirming child support
arrearages in her favor against appellee Patricia Banks, independent executrix for the estate of Horace A.
Paul, Jr., of $5,105, rather than the over $90,000 in arrearages and interest she requested. In five issues,
she claims the trial court abused its discretion in calculating arrearages and in failing to award her
interest. We agree, and we reverse and remand.
BACKGROUND
Chenault and Paul, who is now deceased, were divorced on June 3, 1985. Paul was ordered to pay
Chenault $300 per month in child support until their son turned eighteen, graduated from high school, or
was otherwise emancipated. The decree was later modified to specify that child support payments were to
be made through the child support registry. This is the only modification the trial court ever made to the
child support obligation.
On November 6, 2006, Chenault filed a petition under Family Code section 157.263 to enforce child
support and confirm arrearages against Patricia Banks, who is Paul's sister and executrix of his estate.
Chenault alleged that Paul had paid only $21,900 of his $57,300 child support obligation, and therefore
she sought to recover the balance, plus interest, against his estate. Banks disputed Chenault's
calculation and brought forth evidence of additional payments to Chenault of child support and other items
for their son, as well as at least one loan to Chenault. Banks also submitted evidence that Paul had paid
$18,176.31 directly to Marine Military Academy (“MMA"), a private boarding school that their son had
attended for one year.
After a bench trial, the trial court issued a letter to the parties stating that it found Paul's total child support
obligation was $46,800 and that Paul had paid child support in the amount of $41,695.36, which included
$18,175.36 paid to MMA,[1] for a total arrearages amount of $5,105. Other than stating that the
$41,695.36 included money paid to MMA, the trial court did not explain how it derived any of its
calculations. The trial court also did not specify an amount of interest, stating “any interest is calculable
only by computer and counsel are requested to make that calculation, or, agree to an amount of interest."
Less than a month later, the trial court issued a judgment for child support arrearages that awarded
Chenault $5,105 in child support arrearages with no interest. The judgment did not repeat the other
numbers that were included in the earlier letter.
ANALYSIS
A trial court's decision to grant or deny the relief requested in a motion for enforcement is reviewed for an
abuse of discretion. See Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.-Dallas 2005, no pet.); In re T.J.
L., 97 S.W.3d 257, 265 (Tex. App.-Houston [14th Dist.] 2002, no pet.). When, as here, the trial court did
not file findings of fact and conclusions of law,[2] we imply that the trial court made all findings necessary
to support the judgment and will uphold those findings if supported by sufficient evidence. See Holt
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83-84 (Tex. 1992); Beck, 154 S.W.3d at 902. Under the
abuse of discretion standard, sufficiency of the evidence is not an independent ground of error but rather
is a relevant factor in assessing whether the trial court abused its discretion. Beck, 154 S.W.3d at 902; In
re T.J.L., 97 S.W.3d at 265.
In calculating child support arrearages, the trial court's discretion is very limited. See Attorney Gen. v.
Stevens, 84 S.W.3d 720, 723 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Family Code section 157.262
states that a trial court “may not reduce or modify the amount of child support arrearages" except as
specifically provided in the Family Code. Tex. Fam. Code Ann. § 157.262(a) (Vernon 2008); see also
Beck, 154 S.W.3d at 903; Curtis v. Curtis, 11 S.W.3d 466, 471 (Tex. App.-Tyler 2000, no pet.).
The trial court “acts as a mere scrivener in mechanically tallying up the amount of arrearage." Lewis v.
Lewis, 853 S.W.2d 850, 854 (Tex. App.-Houston [14th Dist.] 1993, no writ) (internal quotation marks
omitted); accord Beck, 154 S.W.3d at 903; In re M.C.R., 55 S.W.3d 104, 109 (Tex. App.-San Antonio
2001, no pet.). Although the trial court can award certain offsets and credits, the trial court has no
discretion to forgive or decrease a past child support obligation. See Tex. Fam. Code Ann. § 157.262(a);
George v. Jeppeson, 238 S.W.3d 463, 472 (Tex. App.-Houston [1st Dist.] 2007, no pet.); Beck, 154 S.W.
3d at 903. Thus, in a proceeding to confirm child support arrearages, the trial court's child support
calculations must be based on the payment evidence presented, not the trial court's assessment of what is
fair or reasonable. As with child support arrearages, the trial court also has no discretion to modify,
forgive, or make equitable adjustments in awarding interest on child support arrearages. See Herzfeld v.
Herzfeld, 285 S.W.3d 122, 129 (Tex. App.-Dallas 2009, no pet.); In re M.C.R., 55 S.W.3d at 108-09.
A. Arrearages
In issues one, three, four, and five, Chenault complains that the trial court improperly calculated the
amount of child support arrearages. She claims the trial court erred in giving child support credit for the
payments to MMA and in calculating the remaining arrearages.
1. Marine Military Academy
The evidence at trial showed that Chenault agreed with Paul that their son could attend MMA for one year
and that Paul agreed to pay the entire cost. Banks testified that Chenault and Paul further agreed that
Paul paying the cost of MMA would be considered child support, but Chenault testified that she did not so
agree and that she and Paul had never discussed the issue.
Banks contends that because the trial court did not make findings of fact, we cannot determine that the
trial court actually gave child support credit for the MMA payments. Banks insists that we cannot consider
the trial court's calculation in its prejudgment letter because it is not an official fact finding and therefore
not binding. See Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872, 878 (Tex.
1990). It is questionable whether this doctrine applies here because the letter stated a portion of the trial
court's formula that was used in reaching a specific monetary conclusion, and that conclusion was
included in the final judgment. Cf. Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 565 (Tex. 2002) (“The
court's post-verdict letter ruling does not illuminate the question because it was interlocutory and its terms
were never incorporated in the final judgment."); Cherokee Water Co., 801 S.W.2d at 878 (finding that trial
court letter to parties was not competent evidence of the basis for judgment in part because “[t]he court
could have disregarded the [improper evidence mentioned in the letter] at the time judgment was actually
signed"). In any event, we need not determine whether we can properly rely on the portion of the letter
discussing MMA (or any other portion of the letter) because our conclusion is the same either way. The
trial court does not abuse its discretion if it reaches the right result, even for the wrong reason. In re
Vogel, 261 S.W.3d 917, 920 (Tex. App.-Houston [14th Dist.] 2008, orig. proceeding). Thus, we will review
whether the trial court's judgment is proper under a scenario in which it awarded credit for MMA and under
a scenario in which it did not.
We conclude that to the extent it gave a child support credit for the amount paid to MMA, the trial court
abused its discretion. The trial court plays an integral role in child support proceedings to ensure the
protection of the child's best interests. See Williams v. Patton, 821 S.W.2d 141, 143-44 (Tex. 1991);
London v. London, 192 S.W.3d 6, 15 n.4 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).
Private agreements to modify child support obligations bypass this protection and are thus against public
policy and unenforceable. See Williams, 821 S.W.2d at 143-44; Sudan v. Sudan, 145 S.W.3d 280, 285
(Tex. App.-Houston [14th Dist.] 2004), rev'd on other grounds, 199 S.W.3d 291 (Tex. 2006); State v.
Borchers, 805 S.W.2d 880, 882 (Tex. App.-San Antonio 1991, writ denied).
A final judgment containing a child support order remains in effect until modified by the court. See
Gonzalez v. Tippit, 167 S.W.3d 536, 542 (Tex. App.-Austin 2005, no pet.); In re D.S., 76 S.W.3d 512, 517
(Tex. App.-Houston [14th Dist.] 2002, no pet.). Thus, if the parties agree to modify child support, they
must take their agreement to the trial court, who will makes orders as necessary to ensure that the child
support obligations continue to serve the best interests of the child. See Williams, 821 S.W.2d at 143-44;
Kurtz v. Kurtz, 158 S.W.3d 12, 20 (Tex. App.-Houston [14th Dist.] 2004, pet. denied); Sudan, 145 S.W.3d
at 285.
It is undisputed that neither Chenault nor Paul asked the trial court to modify the child support obligations
to allow Paul's payments to MMA to constitute child support. Thus, even if the trial court could have found,
based on Banks's testimony, that Chenault and Paul agreed that Paul's payments to MMA would constitute
child support, such an agreement is unenforceable and not a proper basis for reducing child support
arrearages.
Banks argues that, independent of the enforceability of the alleged agreement, child support credit for the
MMA payments is supportable based on the affirmative defense of voluntary relinquishment. The Family
Code provides that “[a]n 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." Tex. Fam. Code Ann. § 157.008(a) (Vernon 2008). Because voluntary relinquishment
is an affirmative defense, the obligor has the burden of proof. Beck, 154 S.W.3d at 903. If the obligor
proves the voluntary relinquishment defense, he is entitled to either an offset or reimbursement of his child
support obligation, depending on whether he continued to pay child support during the period of voluntary
relinquishment. See In re A.M., 192 S.W.3d 570, 574 (Tex. 2006).
Banks argues that because Paul paid for MMA, the trial court could have found that Chenault voluntarily
relinquished actual possession and control of her son to Paul by allowing him to attend MMA. We reject
this argument. The obligor must prove that the obligee affirmatively agreed to relinquish possession and
control of the child to the obligor. See Tex. Fam. Code Ann. § 157.008(a); Leighton v. Court, 773 S.W.2d
63, 64 (Tex. App.-Houston [14th Dist.] 1989, no writ); Norman v. Norman, 683 S.W.2d 548, 550 (Tex. App.-
Fort Worth), rev'd on other grounds, 692 S.W.2d 655 (Tex. 1985). There is no evidence in the record to
show that Chenault actually agreed to relinquish possession and control over her son to Paul simply by
agreeing to allow him to attend boarding school. Without such evidence, any implied finding by the trial
court to the contrary would not be supported by sufficient evidence.
For these reasons, we conclude the trial court abused its discretion to the extent it credited Paul's
payments to MMA toward his child support obligations.
2. Other Arrearages Calculations
Based on the uncontested evidence and the terms of the divorce decree, Paul was obligated to pay child
support from July 1, 1985 to May 1, 2001, which is 191 months, at $300 per month, for a total child
support obligation of $57,300. If the trial court gave a credit of $18,176.31 for the MMA payments, then
considering its total arrearage judgment of $5,105, we imply that the trial court gave Paul another
$34,018.69 in credit toward his child support obligation. If the trial court did not credit the MMA payments
as child support, we imply the trial court gave Paul $52,195 in child support credits.
Chenault argues that the trial court abused its discretion because the evidence is insufficient to support
the trial court's ultimate conclusion that Paul owed only $5,105 in child support arrearages. Banks argues
that because the evidence regarding child support payments was disputed and the amount the trial court
found was within the range of the figures argued by the parties, the trial court acted within its discretion.
We disagree with Banks's analysis.
Banks presented evidence of every payment from Paul to Chenault she could document, including not
only child support but personal loans and money for other items such as Christmas gifts, an amusement
park season pass, pictures, insurance, a car, and a class ring. We do not know exactly how the trial court
calculated the child support credits it gave. If the trial court gave credit for these non-child support items,
that would constitute an abuse of discretion because these items are not provided in the Family Code as a
basis for decreasing child support arrearages. See Tex. Fam. Code Ann. § 157.262(a); Medrano v.
Medrano, 810 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).
Whether we deduct these non-child support items from the total or credit every payment presented, there
is no combination of the figures presented that amounts to either $34,018.69 (with credit for the MMA
payments) or $52,195 (without credit for the MMA payments) in child support credits. Paul's child support
obligation was $300 per month, and there is no evidence of a partial payment or any other type of
payment that could possibly result in child support credits of $34,018.69 or $52,195, neither of which are
multiples of the $300 owed each month.[3] Simply put, we cannot find any way, based on the evidence
presented, to support the trial court's child support arrearages calculation. Thus, the trial court failed in its
duty as a scrivener and abused its very limited discretion in its determination of child support arrearages.
Having concluded that the trial court abused its discretion in its calculation of child support arrearages, we
sustain Chenault's first, third, fourth, and fifth issues.
B. Interest
In her second issue, Chenault complains that the trial court abused its discretion in failing to award interest
on her child support arrearages judgment. The Family Code provides that 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" that includes “interest on the arrearages." Tex.
Fam. Code Ann. § 157.263(a), (b)(3) (Vernon 2008). The interest rate on each unpaid month of child
support is either six or twelve percent, depending on the date of the unpaid payments and the date the
unpaid support payments are judicially confirmed. See id. § 157.265; In re M.C.C., 187 S.W.3d 383, 385
(Tex. 2006). Awarding interest on child support arrearages is mandatory, and the trial court has no
discretion to not award the full amount of interest due. See Herzfeld, 285 S.W.3d at 129; In re M.C.R., 55
S.W.3d at 108-09.
The trial judge explained during the hearing on the motion for entry of judgment that “I think [interest is]
uncertain . . . . and incapable of calculation due to the facts of the case." However, interest on child
support arrearages is inherently calculable because an arrearages determination must be based on
specific unfulfilled child support obligations. Determining the date and amount of the unpaid obligation is
necessary to calculate both the arrearage and the interest. In its prejudgment letter, the trial court
requested that the parties calculate the interest total but did not give them the necessary information to do
so. Though the trial court was not required to provide findings of fact because Chenault's request was not
timely, her failure to do so did not forfeit her right to interest. The trial court had no discretion not to award
interest, even without a timely request for findings of fact. See Herzfeld, 285 S.W.3d at 129; In re M.C.R.,
55 S.W.3d at 108-09. We sustain Chenault's second issue.
CONCLUSION
The trial court abused its discretion in making its child support arrearages calculation and in failing to
perform its mandatory duty of awarding interest on confirmed child support arrearages. We reverse the
trial court's judgment and remand for further proceedings consistent with this opinion.
/s/ Leslie B. Yates
Justice
Panel consists of Justices Yates, Guzman, and Sullivan.
[1] These findings are at odds with the undisputed evidence showing a total child support obligation of
$57,300 (not $46,800) and payments to MMA of $18,176.31 (not $18,175.36).
[2] Chenault filed a request that the trial court make findings of fact and conclusions of law, but she failed
to file a timely notice of overdue findings of facts and conclusions of law, and thus the trial court was not
required to make them. See Tex. R. Civ. P. 296-299.
[3] These figures are based on the evidence presented, rather than the calculations in the trial court's
prejudgment letter to the parties. Considering the figures in the letter does not change our analysis
because the letter contains an undisputably incorrect total child support obligation, the amount credited
for payments to MMA does not match the undisputed evidence of payments made, and the amount of
other child support credited also cannot be derived from any combination of the figures and testimony
presented.