Category Archives: Unpaid Child Support

Unpaid Child Support, Past Due Child Support, Child Support Arrears

Texas Appeals Court VsTyler 2007

The trial court awarded $286,100.14 in child support arrearages from a 1969 divorce in favor of the child support obligee against the child support obligor. The trial court also ordered the child support obligor to turn over all community property from his second divorce towards satisfying his child support judgement.

The child support obligor argued the trial court’s order was improper. The appellate court held there is no statute of limitations for child support collection or child support enforcement. Also, an unpaid child support obligation does not become dormant. The defense of laches does not apply to child support collection and child support enforcement. The child support lien attaches to all the obligors nonexempt property. Finally, child support enforcement and child support collection may be accomplished by a turnover order.

In re D.T.
Tex.App.-Tyler,2007.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
MEMORANDUM OPINION(PUBLISH)
Court of Appeals of Texas,Tyler.
In the Interest of D.T., K.T. and M.T., Minor Children.
No. 12-05-00420-CV.

Dec. 21, 2007.

Appeal from the 321st Judicial District Court of Smith County, Texas, Carole W. Clark, Judge.

J. Paul Nelson, Jeremy Daniel Coe, for appellant.
Karen L. Marvel, for appellee.
Beau T. Sinclair, for other.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

MEMORANDUM OPINION

JAMES T. WORTHEN, Chief Justice.
*1 Robert Taliaferro and Marcia Taliaferro appeal from trial court orders entered in response to Mabel Sadler’s attempt to collect past due child support from Robert, her ex-husband. Robert attacks the validity of the order on cumulative money judgment for child support arrearages, and both Robert and Marcia attack the validity of the order appointing a receiver to collect property to satisfy the child support lien. We affirm.

BACKGROUND

Mabel Sadler and Robert Taliaferro were married and had three children before divorcing in Smith County in 1969. Although, at the time of the divorce, Robert was ordered to pay $150.00 per month in child support, he failed to do so. In the early 1970s, Mabel attempted to get Robert to comply with the child support order, and he was found guilty of contempt for failure to pay. The record is silent regarding any efforts to encourage his compliance until August 31, 2001 when Mabel filed a motion for cumulative judgment of child support arrearages. An order was entered that year but was set aside in April 2004.

Marcia, Robert’s second wife, intervened in the case, claiming her community interest in Robert’s retirement fund, which Mabel had attempted to garnish. Robert and Marcia were divorced July 15, 2004 in Rusk County. Marcia was awarded a portion of the retirement benefits in the divorce.

The Smith County court entered an order on cumulative money judgment on June 29, 2005 finding that Robert owed $286,100.14 plus interest. On August 29, 2005, the trial court appointed a receiver, ordered Robert and Marcia to turn over all property of their community estate as of the date of their divorce, ordered Robert to turn over all of his real and personal property, and ordered each of them to pay $2,500.00 to the receiver.

1999 AMENDMENT TO FAMILY CODE SECTION 157.005

In his first issue, Robert contends that, based on law in effect prior to September 1, 1999, he had a vested right to not pay the child support arrearage. He argues that Section 157.005, as amended in 1999, acts as a statute of limitation and is a prohibited ex post facto law under which he would be liable for arrearages that he would not have to pay under prior law. Alternatively, he argues, the residual statute of limitations found in the Civil Practice and Remedies Code should control. In his fifth issue, Robert contends the trial court’s order violates the Civil Practice and Remedies Code’s proscription against dormant judgments.

In his fourth issue, Robert asserts that the 1999 amendment violates his due process and due course of law rights as well as protections against retroactive laws under the United States and Texas constitutions. After acknowledging that the Texas Supreme Court has held contrary to his argument on this issue, Robert urges us to sustain his retroactive constitutional challenge.

From April 20, 1995 through August 31, 1999, Family Code Section 157.005(b) provided that the trial court retained jurisdiction to hear a motion for enforcement filed not later than four years after the date the child becomes an adult. Act of April 6, 1995, 74th Leg ., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 177 (amended 1999, 2005, 2007) (current version at TEX. FAM.CODE ANN. § 157.005(b) (Vernon Supp.2007)). Robert and Mabel’s youngest son recently celebrated his fortieth birthday. Therefore, had Mabel attempted to enforce the child support order between April 20, 1995 and August 31, 1999, Robert could not have been held liable.

*2 Effective September 1, 1999, Section 157.005(b) provided that the trial court retained jurisdiction to confirm the total amount of child support arrearages and render judgment for past due child support until the date all support arrearages, including interest and any applicable fees and costs, have been paid. Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 15, 1999 Tex. Gen. Laws 3058, 3062 (amended 2005, 2007).

The United States Constitution bans ex post facto laws. SeeU.S. CONST. art. I, § 9, cl. 3. The Texas Constitution bans ex post facto and retroactive laws. SeeTEX. CONST. art. I, § 16. A statute is retroactive if it takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts a new disability that affects acts or rights accruing before it came into force. In re A.D., 73 S.W.3d 244, 248 (Tex.2002); Turbeville v. Gowdy, 272 S.W. 559, 561 (Tex.Civ.App.Fort Worth 1925, no writ). Robert correctly argues that a statute extending a cause of action’s limitations period cannot apply to revive a suit that would have been time barred before the new statute of limitations took effect because it would impair vested rights and violate the constitutional prohibition on retroactive laws. See In re A.D., 73 S.W.3d at 248. However, Section 157.005(b) is not a statute of limitation.

Statutes providing time limits within which enforcement of an existing support liability may be effected concern the court’s continuing jurisdiction and do not affect substantive rights. Id. at 249.Section 157.005 and its predecessors have been consistently interpreted as defining the contours of the court’s jurisdiction, not a time frame within which a party must file a claim or forever lose the right to do so. In re S.C.S., 48 S.W.3d 831, 833 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).Section 157.005 addresses how long a court has jurisdiction to enforce its orders and is not a statute of limitation. Id. at 834.Accordingly, its application does not impair vested rights. Id. at 835.Section 157.005 is a remedial statute governing the time for enforcing the existing legal liability for child support and is not an ex post facto or retroactive law. See In re A.D., 73 S.W.3d at 248;In re S.C.S., 48 S.W.3d at 835.

Robert also contends the trial court’s order to pay the arrearage is barred by Texas Civil Practice and Remedies Code Section 34.001, which disallows execution on judgments more than ten years old. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 34.001 (Vernon 1997). We disagree. This ten year dormancy statute comes into play only when child support arrearages are coalesced into a judgment confirming arrearages. In re S.C.S., 48 S.W.3d at 836. The ten year dormancy period begins to run upon the signing of a judgment confirming arrearages. Id. Therefore, the trial court’s order to pay the arrearage cannot be barred by Section 34.001.

*3 Finally, Robert asserts that application of Section 157.005 violates his rights to due process and due course of law. Robert did not make this claim in the trial court and has therefore waived it. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993). We overrule Robert’s issues one, four, and five.

LACHES

In his sixth issue, Robert asserts the trial court erred because it did not allow him to present testimony regarding his argument that laches should apply to bar Mabel’s claim. Robert provided no authority for this contention and has therefore waived it. SeeTEX.R.APP. P. 38.1(h); Davis v. Kaufman County, 195 S.W.3d 847, 850 (Tex.App.-Dallas 2006, no pet.). Neither do we find any indication in the record that he presented this issue to the trial court. See Dreyer, 871 S.W.2d at 698. Further, this complaint has no merit. Laches is a defense grounded upon an unreasonable delay by a party in asserting its legal or equitable rights, and a good faith change of position by another to his detriment because of the delay. Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998). As explained above, the 1999 amendment, applicable to this case, permits the trial court to retain jurisdiction over collection of the child support arrearage for as long as it is owed. See Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 15, 1999 Tex. Gen. Laws 3058, 3062. Further, a parent has a legal duty to support his children. See Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993) (orig.proceeding). Under these circumstances, the defense of laches is not available. See In re Moragas, 972 S.W.2d 86, 93 (Tex.App.-Texarkana 1998, no pet.). We overrule Robert’s sixth issue.

SUFFICIENCY OF THE EVIDENCE

In his second issue, Robert contends the evidence is legally and factually insufficient to support the findings supporting the order on cumulative money judgment and the order appointing a receiver. He complains that no evidentiary hearing was held and there is a complete absence of evidence of the vital facts necessary for the judgments. He specifically argues there is no evidence to support the trial court’s finding that all community property transferred by the Rusk County divorce decree is subject to the child support lien.

In his third issue, Robert asserts that the trial court erred in rendering the June 29 order on cumulative money judgment without an evidentiary hearing and without affording him notice of the judgment so he could request findings of fact and conclusions of law. He complains that he is forced to appeal a ruling that he was not present for and without any information as to the factual basis for the judgment.

On May 4, 2004, the trial court held a hearing attended by attorneys for Mabel, Marcia, and Robert. Mabel’s attorney explained that they had reached an agreement on some issues but wished to present argument, not evidence, on the issue of interest. Robert’s attorney said, “That’s correct.” They agreed that Robert owes child support principal in the amount of $21,400.00 representing child support due and owing beginning March 5, 1972 and ending December 20, 1984. That amount reflects 225 days of possession credits. At the June 29 hearing, it was noted in open court that the parties had previously stipulated to everything except the rate of interest to be applied and that the legislature had determined the applicable interest rate. The trial judge noted that all they needed was a judgment. After the trial judge encouraged the attorneys for Robert and Marcia to look at the judgment tendered by Mabel’s attorney, both stated on the record that they had no objection to the form of the judgment. Robert’s attorney then stated that he had only recently begun to represent Robert and had not been involved with previous proceedings. He specifically stated, “There’s nothing that I can do about the judgment.”The record ends without any reference to signing the judgment.

*4 Present at the August 29 hearing were attorneys for Marcia and Mabel as well as an attorney who was appointed receiver. It was stated on the record that Robert’s attorney called to say he could not be there because he was sick. Marcia’s attorney said that he had not received notice that a judgment had been entered. The remainder of that hearing involved the appointment of the receiver. The order appointing the receiver was signed the same day.

On September 20, 2005, Robert’s attorney filed a document entitled “Defendant’s Notice of Appeal and Request for Hearing.”In it, he listed several complaints, including an explanation that he received notice of the June 29 order on August 29, and requested the Twelfth Court of Appeals to set a hearing and confirm that the trial court clerk did not give him or Marcia the required notice.

Any party may request the trial court to state in writing its findings of fact and conclusions of law. The request must be filed within twenty days after the judgment is signed. TEX.R. CIV. P. 296. The trial court clerk is required to provide the parties or their attorney of record notice of a signed judgment or appealable order immediately. TEX.R. CIV. P. 306a(3). If a party has not received notice or acquired actual knowledge within twenty days after the judgment is signed, he can get an extension to file his request that is calculated from the date of notice. TEX.R. CIV. P. 306a(4). To be entitled to the extension, the party alleging late notice of a judgment must file a sworn motion with the trial court establishing the date the party or its counsel first learned of the judgment. TEX.R. CIV. P. 306a(5).

Robert did not comply with the requirements of Rule 306a(5) to extend the time to file a request for findings of fact and conclusions of law. Because he failed to do so, he cannot now complain about the absence of findings of fact and conclusions of law or how their absence has a detrimental effect on his arguments on appeal. We overrule Robert’s third issue.

Most appealable issues in a family law case, including a trial court’s confirmation of child support arrearages, are reviewed under an abuse of discretion standard. In re A.L.G., 229 S.W.3d 783, 784 (Tex.App.-San Antonio 2007, no pet.); Beck v. Walker, 154 S.W.3d 895, 901 (Tex.App.-Dallas 2005, no pet.). A trial court’s judgment is reversed only when it appears from the record as a whole that the trial court abused its discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). A trial court abuses its discretion as to factual matters when it acts unreasonably or arbitrarily. Id. A trial court abuses its discretion as to legal matters when it acts without reference to any guiding principles. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). In a nonjury trial, where findings of fact and conclusions of law are neither filed nor timely requested, it is implied that the trial court made all necessary findings to support its judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992). The legal and factual sufficiency of the evidence to support these implied findings may be challenged when, as in this case, a reporter’s record is brought forward.Id. at 84.However, under an abuse of discretion standard, arguments of legal and factual sufficiency of the evidence to support the judgment are not independent grounds for asserting error, but are relevant factors in assessing whether a trial court abused its discretion. Beck, 154 S.W.3d at 902.

*5 The Family Code provides procedures for enforcement of child support payments, including requesting a money judgment for arrearages. SeeTEX. FAM.CODE ANN. § 157.001 (Vernon 2002); Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2003, 2007) (current version at TEX. FAM.CODE ANN. § 157.263 (Vernon Supp.2007)). In rendering a money judgment, the trial court may not reduce or modify the amount of arrearages. Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2001) (current version at TEX. FAM.CODE ANN. § 157.262(a) (Vernon 2002)). However, the final money judgment may be subject to an offset or counterclaim. Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2001) (current version at TEX. FAM.CODE ANN. § 157.262(f) (Vernon 2002)). Thus, the trial court acts as a “mere scrivener” in mechanically tallying the amount of arrearage. Curtis v. Curtis, 11 S.W.3d 466, 471 (Tex.App.-Tyler 2000, no pet.).

Here, the parties stipulated to the fact that, after applying a possession credit, Robert owed past due child support principal in the amount of $21,400.00 for a specified time period. Where stipulations are made in open court and entered of record, they are binding. SeeTEX.R. CIV. P. 11; Ex parte Burroughs, 687 S.W.2d 444, 446 (Tex.App.-Houston [14th Dist.] 1985, orig. proceeding). The judgment recites a total amount due that includes interest on the arrearages. Robert had no objection to the judgment at the June 29 hearing. The judgment further orders Robert to pay six percent interest on the total arrearages, including interest from the date of rendition of the judgment until paid as required by statute. SeeTEX. FAM.CODE ANN. § 157.265 (Vernon Supp.2007). There is evidence of probative force supporting the

trial court’s judgment. Accordingly, the trial court did not abuse its discretion in entering the order on cumulative money judgment.

Robert also complains in his second issue that there is no evidence to support the trial court’s finding in the August 29 order that all community property transferred by his divorce from Marcia was subject to the child support lien. In Marcia’s first and second issues, she asserts that the trial court abused its discretion when it made findings of fact concerning her property rights without evidence to support them. Specifically, she argues there is no evidence to support the finding that all community property she and Robert owned was liable for Robert’s delinquent child support. We find no merit in these complaints.

The child support obligation was court imposed in 1969. The child support lien arose by operation of law against all of Robert’s nonexempt property, including his retirement plan, regardless of whether the amounts of the arrearages had been adjudicated. See Act of May 15, 1997, 75th Leg., R.S., ch. 420, § 2, 1997 Tex. Gen. Laws 1660, 1660 (amended 2001, 2003) (current version at TEX. FAM.CODE ANN. § 157.312 (Vernon Supp.2007)); Act of May 27, 1997, 76th Leg., R.S., ch. 556, § 20, 1999 Tex. Gen. Laws 3058, 3062 (amended 2001, 2003, 2007) (current version at TEX. FAM.CODE ANN. § 157.317 (Vernon Supp.2007)). Community property consists of the property, other than separate property, acquired by either spouse during marriage. TEX. FAM.CODE ANN. § 3.002 (Vernon 2006). Community property subject to Robert’s sole or joint management, control, and disposition is subject to liabilities he incurred before marriage, including the child support arrearages. TEX. FAM.CODE ANN. § 3.202(c) (Vernon 2006). Community property subject to Marcia’s sole management, control, and disposition is the only category of community property that is not subject to Robert’s child support obligation because it was incurred before their marriage. SeeTEX. FAM.CODE ANN. § 3.202(b) (Vernon 2006). If it is Marcia’s position that some of the community property was under her sole control and management and thus not liable for Robert’s child support obligation, it was her burden to identify and prove that certain property could not be reached by the lien. See Act of May 15, 1997, 75th Leg., R.S., ch. 420, § 14, 1997 Tex. Gen. Laws 1660, 1663 (amended 2001) (current version at TEX. FAM.CODE ANN. § 157.326 (Vernon 2002)). This she failed to do. Further, Mabel’s arguments at trial and on appeal all indicate an interest in reaching Robert’s retirement fund to satisfy the past due child support obligation. There is nothing to indicate there is any other community property. There is no doubt the retirement fund is subject to the lien. Thus, the trial court did not abuse its discretion in finding that all community property transferred in the divorce was subject to the lien. We overrule Robert’s second issue and Marcia’s first and second issues.

TURNOVER ORDER

*6 In her third issue, Marcia asserts the trial court erred when it ordered her to turn over all real and personal property she owned to a receiver. She argues that all property she owned when the August 29, 2005 order was rendered was her separate property and there is no authority under Texas law for her to be required to pay Robert’s debt. In her fourth issue, she contends, without citing authority, that the trial court erred when it ordered her to pay the receiver for his services.

In its August 29, 2005 order, the trial court ordered Robert and Marcia to “turn over all real and personal property and title to all real and personal property of their community estate as of July 15, 2004” to the receiver. As explained above, the trial court did not abuse its discretion in determining that Robert and Marcia’s community estate is subject to the lien. It is appropriate to collect past due child support through use of a turnover order and receiver. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2001, 2007) (current version at TEX. FAM.CODE ANN. § 157.264 (Vernon Supp.2007)); TEX. CIV. PRAC. & REM.CODE ANN. § 31.002 (Vernon Supp.2007); First City Nat’l Bank v. Phelan, 718 S.W.2d 402, 405 (Tex.App.Beaumont 1986, writ ref’d n.r.e.). Further, the judgment creditor who obtains turnover relief is entitled to recover attorney’s fees. TEX. CIV. PRAC. & REM.CODE ANN. § 31.002(e). We overrule Marcia’s third and fourth issues.

DISPOSITION

Having been presented with no trial court error, we affirm the trial court’s order on cumulative money judgment of June 29, 2005 and its August 29, 2005 order on motion for appointment of receiver.

Tex.App.-Tyler,2007.
In re D.T.
Not Reported in S.W.3d, 2007 WL 4465250 (Tex.App.-Tyler)

RAYMOND C. HENNIGAR v. SUSAN CUNNINGHAM

The trial court awarded $111,000.73 in child support arrearages from a 1978 divorce in favor of the child support obligee against the child support obligor. The child support obligee sought child support collection and child support enforcement by a writ of withholding and child support liens.

This child support obligor argued the child support obligee did not have sufficient evidence to prove he owed unpaid child support. The appellate court disagreed, holding a divorce decree and a payment history are sufficient to establish unpaid child support.

RAYMOND C. HENNIGAR, Appellant v. SUSAN CUNNINGHAM, Appellee

NO. 14-10-00937-CV

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

2011 Tex. App. LEXIS 9353

November 29, 2011, Memorandum Opinion Filed

PRIOR HISTORY: [*1]
On Appeal from the 310th District Court, Harris County, Texas. Trial Court Cause No. 1978-27379.

COUNSEL: James N. Higdon of San Antonio, TX, for appellants.

Karen L. Marvel of San Antonio, TX; Brandon Jen Wong of San Antonio, TX, for appellees.

JUDGES: Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.

OPINION BY: Tracy Christopher

OPINION

MEMORANDUM OPINION
Appellant Raymond C. Hennigar challenges the trial court’s judgment granting his former wife’s request for a lien and writ of withholding for past-due child support. Because the amount of the judgment is supported by the record and Hennigar’s remaining complaints have not been preserved, we affirm the trial court’s judgment.

I. Factual and Procedural Background
Hennigar and appellee Susan Cunningham were married in 1972 and had a son two years later. They divorced in 1978, and the trial court appointed Cunningham managing conservator. Hennigar was ordered to pay child support of $100 per month, in two $50 installments, into the child-support division of Harris County Child Welfare. As of January 2010, the registry for that division had recorded no payments.
On January 6, 2010, Cunningham filed a notice of child support lien and a notice of application [*2] for judicial writ of withholding. On January 21, 2010, acting pro se, Hennigar moved to vacate the lien and dismiss the action as time-barred. Cunningham responded by asking the trial court to foreclose on the lien, determine the amount of unpaid child support, and award attorney’s fees. An initial hearing before an associate judge was set for February 17, 2010.
Twenty-five days before the hearing, Cunningham served interrogatories, a request for production of documents and a request for disclosure in which, among other things, she asked Hennigar to produce evidence of payment, to state the legal theories on which he would rely, and to identify persons with knowledge of relevant facts. Because the requests were served less than 30 days before the hearing, Hennigar did not respond.1 At the hearing, the associate judge ruled in Cunningham’s favor, granting her request for a lien and a writ of withholding and awarding her attorney’s fees and $108,442.66 in past-due child support.

1 See Tex. R. Civ. P. 194.1-194.2 (requests for, inter alia, disclosure of legal theories and persons with knowledge of relevant facts must be served no later than 30 days before the end of any applicable discovery [*3] period), 196.1 (applying same rule to requests for production), 197.1 (applying same rule to interrogatories); see id. 190.3(b)(1)(A) (in cases under Family Code, discovery period ends 30 days before the date set for trial).
Hennigar retained counsel and timely requested a de novo hearing before the referring court. In his initial request, he asserted that (1) he owed no child support because the State possessed no record of arrearages; (2) Cunningham’s claim was rendered dormant by statute, and a statutory amendment removing child support from the general dormancy provision was unconstitutional; (3) Cunningham’s claim was barred by the equitable defense of laches; (4) Cunningham’s notice of lien and the associate judge’s order were defective; and (5) the Family Code’s lien-notice provision was unconstitutional. The de novo hearing was set for April 15, 2010.
Twenty-three days before the scheduled hearing, Cunningham served an additional request for production and Hennigar responded that the request was untimely. The hearing was subsequently rescheduled to June 2, 2010. In the interim, Hennigar amended his request for de novo hearing twice, supplementing his constitutional arguments and [*4] requesting attorney’s fees.
On the day of the de novo hearing, Cunningham filed a motion to exclude the evidence and witnesses that Hennigar had failed to identify in response to her requests. Although Hennigar maintained that no answer was required because the discovery requests were untimely, he nevertheless moved for an extension of time in which to answer the discovery, and he served his responses the same day. The court granted Cunningham’s motion and excluded the evidence and witnesses that Hennigar had failed to identify in response to Cunningham’s discovery requests.
Cunningham also moved to strike the amended portions of the request for de novo hearing on the ground that such a request is analogous to a motion for new trial, and thus, the Family Code should be construed to permit amendments only within the seven-day period allotted for making the initial request. Compare Tex. Fam. Code. Ann. §201.015 (West 2008) (request must specify the issues that will be presented to the referring court and must be filed within seven days of the notice of the associate judge’s ruling) with Tex. R. Civ. P. 329b(a) (motion for new trial must be made within thirty days of judgment) and Moritz v. Preiss, 121 S.W.3d 715, 720-21 (Tex. 2003) [*5] (holding that amended motion for new trial must be filed within the same thirty days of judgment or it preserves nothing for review). The trial court sustained Cunningham’s motion to strike Hennigar’s amendments to his request for de novo hearing.
At the de novo hearing, Cunningham testified that Hennigar had failed to make regular payments and that she sought $111,000.73. She offered three exhibits to prove that Hennigar owed this amount. Exhibits A and B–the divorce decree and a copy of the Harris County child-support division registry showing no payments made–were admitted. Exhibit C was a chart showing Cunningham’s arrearage calculations; it included a list of all payments due under the child support order, notations of missed payments for some ten years that their son resided with Cunningham, and a combination of payments and possession credits for some four years that their son resided with Hennigar. It totaled the amount owed and applied interest calculations to arrive at a total of $111,395.55. Cunningham’s request of $111,000.73 reflected this figure after “credit[ing Hennigar] for . . . money that was levied from [Hennigar's] bank account” since the associate judge’s ruling [*6] in February 2010. The trial court admitted Exhibit C “as a shorthand rendition of [Cunningham's] testimony.” On cross-examination, however, Cunningham testified that she did not remember the exact dates that Hennigar had made or missed payments, and Hennigar moved to strike Exhibit C because of Cunningham’s lack of personal knowledge of the events it recorded. The trial court sustained his objection and excluded the exhibit. Cunningham’s counsel then testified as an expert witness that “[w]hen Ms. Cunningham came and met with us, she specifically told us about the possession credit . . . [a]nd she also told us about dates and amounts, and those are reflected in this exhibit.” Hennigar successfully objected to this statement as hearsay. Shortly thereafter, however, Cunningham’s counsel “reurge[d] . . . Exhibit C as a summary of the dates, and the payments, and the amounts due for the [c]ourt and the payments that [Cunningham] has been [sic] given credit for and the possession credit as an aid to the court.” The trial court admitted the portion of the chart showing “those amounts that are due on the interest, but . . . disregard[ed] any payment portion as [Cunningham] could not testify [*7] to those.”
After the de novo hearing, the trial court granted Cunningham’s request for a child-support lien and writ of withholding for $111,000.73 in arrearages, plus attorney’s fees. Neither party requested findings of fact and conclusions of law.

II. Issues Presented
In three issues, Hennigar challenges the legal and factual sufficiency of the evidence and argues that the trial court reversibly erred in striking his amended request for a de novo hearing and excluding his witnesses.

III. Analysis

A. Evidentiary Sufficiency
In his first issue, Hennigar argues that the evidence is legally and factually insufficient to support the judgment. We review a trial court’s adjudication of child support for abuse of discretion. See In re A.L.S., 338 S.W.3d 59, 65 (Tex. App.–Houston [14th Dist.] 2011, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Under the abuse-of-discretion standard, sufficiency of the evidence is not an independent ground of error, but is a factor [*8] in assessing whether the trial court abused its discretion. A.L.S., 338 S.W.3d at 65; London v. London, 94 S.W.3d 139, 143-44 (Tex. App.–Houston [14th Dist.] 2002, no pet.). When, as here, no findings of fact and conclusions of law were requested, we presume that the trial court made all findings necessary to support the judgment and will uphold those findings if supported by the record. A.L.S., 338 S.W.3d at 65 (citing Chenault v. Banks, 296 S.W.3d 186, 189 (Tex. App.–Houston [14th Dist.] 2009, no pet.)). In calculating child-support arrearages, however, the trial court’s discretion is very limited. Id. Although the trial court can award certain offsets and credits, it has no discretion to forgive or decrease a past child-support obligation. Id. Thus, in a proceeding to confirm child-support arrearages, the trial court’s calculations must be based on the payment evidence presented. Id.
Although legal and factual insufficiency are not themselves bases for reversal in this case, we address them specifically because they are at the core of Hennigar’s argument that the trial court abused its discretion. In an appeal of a judgment rendered after a bench trial, the trial court’s findings [*9] of fact have the same weight as a jury’s verdict, and we review the legal and factual sufficiency of the evidence to support them as we would review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In a legal sufficiency challenge, we examine the record in the light most favorable to the judgment and consider whether the evidence at trial would enable a reasonable and fair-minded factfinder to reach the verdict under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not. See id. The evidence is legally sufficient unless (a) there is a complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. Id. at 810. The record contains more than a scintilla of evidence, and thus the evidence is legally sufficient, if reasonable minds could form differing conclusions about [*10] a vital fact’s existence. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782-83 (Tex. 2001). Conversely, the evidence is insufficient when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). A judgment is factually sufficient unless it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175. 176 (Tex. 2004) (per curiam).
Hennigar challenges the legal sufficiency of the evidence on three bases. First, he argues that there was a complete absence of evidence to support the amount of the trial court’s judgment. At trial, Cunningham testified that Hennigar failed to make regular payments and that she sought $111,000.73, a figure based on the total amount reflected in the admitted portion of Exhibit C. Hennigar claims that this figure was derived solely from the excluded portion of Exhibit C, which documents specific dates on which Hennigar allegedly missed or made payments and credits him with a combination of payments and possession credits for the years that their son lived [*11] with him. He argues that when the trial court excluded that portion of the exhibit, it “effectively removed the evidence necessary for the trial court to ascertain the amount, if any, of arrearages.” Thus, he claims, there was a complete absence of admissible evidence to support the judgment. This argument merges with Hennigar’s second asserted basis for legal insufficiency–that the trial court was barred by the rules of evidence from giving weight to the excluded portion of Exhibit C, which, as with respect to his first argument, he characterizes as the only evidence offered to prove how much he owed. Hennigar asserts that by basing its judgment on the admitted portion of Exhibit C–which sets forth the total amount owed in missed payments and calculates interest–the trial court necessarily relied upon the excluded portion of the exhibit, from which that total was derived. Hennigar also argues that the trial court was barred from considering the admitted portion of Exhibit C because it was supported only by Cunningham’s attorney’s statements that it accurately reflected the total amount owed–statements, Hennigar claims, that were inadmissible both as improper expert testimony and as [*12] hearsay. Thus, he argues, the trial court was barred by multiple rules of evidence from giving weight to the only evidence offered to prove how much he owed. He concludes that because the judgment depended solely upon inadmissible evidence–the excluded portion of Exhibit C and the statements by Cunningham’s attorney that the admitted portion was correct–the admissible evidence proving the amount he owed was no more than a scintilla. As to factual insufficiency, Hennigar argues that the judgment, by relying solely upon inadmissible evidence and disregarding his testimony that he made all required payments, was so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
Hennigar assumes that the excluded part of Exhibit C was the sole evidence supporting the judgment; to sustain this assumption, he argues that all other evidence supporting the judgment, such as Cunningham’s testimony and the admitted portion of Exhibit C, implicitly derived from the excluded portion of Exhibit C. He ignores the fact that–in addition to Cunningham’s own testimony–the divorce decree establishes the dates on which Hennigar was obligated to make payments, and the Harris [*13] County child-support registry shows that he failed to make those payments in the manner required. Those two exhibits, together with a straightforward calculation of interest, would actually have been sufficient to establish that Hennigar owed more than the amount that Cunningham requested, which credits Hennigar with a combination of payments and possession credits for the approximately four years in which their son resided with him.
Viewing the record in the light most favorable to the judgment, the evidence at trial was legally sufficient to support the judgment without resort to the excluded portion of Exhibit C. The judgment was also not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust, and therefore was factually sufficient. Having rejected Hennigar’s challenges to the sufficiency of the evidence, we conclude that the trial court did not abuse its discretion. Accordingly, we overrule Hennigar’s first issue.

B. Amended Requests for De Novo Hearing
Hennigar next argues that the trial court erred in striking his amended requests for de novo hearing. In his initial request, he asserted that (1) he owes no child support because the State [*14] has no record of the arrearage; (2) Cunningham’s claim is rendered dormant by statute, and a statutory amendment removing claims for unpaid child support from the general dormancy provision is unconstitutional; (3) Cunningham’s claim is barred by the equitable defense of laches; (4) Cunningham’s lien notice and the associate judge’s order are defective; and (5) the Family Code’s lien-notice provision is unconstitutional. In his amended requests, he supplemented his constitutional arguments and requested attorney’s fees. At the de novo hearing, Cunningham moved to strike these amendments. Although her motion was sustained, Hennigar raised his additional constitutional issue in his closing argument without objection.
The only two additions to Hennigar’s last amended request were the constitutional argument, which he actually argued to the court, and a request for attorney’s fees–which, given the outcome of the case, was a moot point. There is thus no basis for Hennigar’s complaint. We therefore overrule his second issue.

C. Exclusion of Witnesses
Finally, Hennigar contends that the trial court erred in excluding “evidence and witnesses” at the de novo hearing. He does not, however, identify [*15] what evidence was allegedly excluded. Cunningham served discovery requests asking Hennigar to, inter alia, produce evidence of payment, state the legal theories on which he would rely, and identify persons with knowledge of relevant facts. At the de novo hearing, Hennigar testified that he had paid in accordance with his obligations. He further testified that he had kept records of his payments for years but had discarded them after his son turned twenty. Thus, Hennigar did produce evidence of payment–his own testimony that he had paid. He was also permitted, in his closing argument, to state multiple legal theories on which he relied. The only testimony Hennigar specifically identifies on appeal as excluded is that of certain witnesses who had testified at his initial hearing before the associate judge.
We will not reverse a judgment based on the exclusion of testimony unless (1) the trial court abused its discretion in excluding the evidence, and (2) the error probably resulted in an improper judgment. Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex. App.–Houston [14th Dist.] 2006, pet. denied). To preserve the complaint that the trial court reversibly erred in excluding a witness’s [*16] testimony, a litigant must make an offer of proof. Ludlow v. DeBerry, 959 S.W.2d 265, 270 (Tex. App.–Houston [14th Dist.] 1997, no pet.). Without evidence of the substance of the testimony, we cannot determine that the trial court reversibly erred in excluding it. Id. Hennigar failed to make an offer of proof, and as a result, there is nothing for us to review. Because we are unable to determine that the trial court reversibly erred, we overrule Hennigar’s third issue.

IV. Conclusion
Having determined that the amount of the judgment is supported by the record and that Hennigar’s remaining complaints have not been preserved, we affirm the trial court’s judgment.
/s/ Justice Tracy Christopher

Cobb VS Gordy

The trial court awarded $78,164.02 in child support arrearages from a 1972 divorce in favor of the child support obligee against the child support obligor. The child support obligee sought child support enforcement and child support collection by a writ of withholding. The child support obligor did not file his contest to the writ of withholding within 10 days, as required by statute. Teh appellae court held by not timely filing his motion to stay, the child support obligor has not preserved his right to assert defenses to the child support arrears.

The child support obligor argues the child support obligee cannot pursue child support enforcement or child support collection because her claim is dormant. The appellate court disagreed, holding formancy doesn’t apply to unpaid child support.

ALLEN COBB, Appellant v. CATHIE GORDY, Appellee

NO. 01-09-00764-CV

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

2011 Tex. App. LEXIS 946

February 10, 2011, Opinion Issued

PRIOR HISTORY: [*1]
On Appeal from the 308th District Court, Harris County, Texas. Trial Court Case No. 917,087.

JUDGES: Panel consists of Chief Justice Radack and Justices Alcala and Bland.

OPINION BY: Sherry Radack

OPINION

MEMORANDUM OPINION
Appellant, Allen Cobb, appeals a trial court order that determines his child-support arrearages as a matter of law, orders that appellee, Cathie Gordy, “is entitled to the issuance of child-support liens, levies, and writs of withholding as remedies for the collection of unpaid child support,” and orders a judicial writ of withholdings from Cobb’s earnings that is binding on “his present employer and all subsequent employers.” Specifically, Cobb contends that (1) the trial court lacked jurisdiction, (2) there is legally and factually insufficient evidence to support the trial court’s judgment, and (3) he was denied due process. We affirm.

BACKGROUND
In 1972, Cobb and Gordy were divorced in the 308th District Court of Harris County. The divorce decree ordered Cobb to pay $50 per month to support their minor child. On April 28, 2009, Gordy filed a “Notice of Application for Judicial Writ of Withholding” in the 308th District Court. In the notice, Gordy alleged $78,164.02 in unpaid child support. The [*2] notice was mailed to Cobb by regular first class mail and by certified mail, return receipt requested, and he received it on May 6, 2009.
On July 7, 2009, Cobb filed a “Motion to Stay Issuance and Delivery of Judicial Writ of Withholding and Request for Hearing and to Terminate Wage Withholding.” On July 21, 2009, Gordy responded to Cobb’s motion to stay, arguing that it was both untimely and unverified. On July 29, 2009, the trial court held a hearing, after which it signed the order complained of in this appeal. Although the order states that “a record of the argument and evidence was made” at the hearing, Cobb did not request findings of fact and conclusions of law or a reporter’s record from the hearing.

JURISDICTION
In his first issue on appeal, Cobb contends that the trial court lacked jurisdiction because (1) the pleadings are deficient to invoke the trial court’s jurisdiction to establish the amount of arrears, and (2) the judgment being enforced is dormant. We address each argument respectively.

Defective Pleadings
Cobb argues that Gordy’s pleadings are deficient because, under section 157.002 of the Family Code, a motion to enforce child support must include (1) the provision [*3] of the child support order allegedly violated, (2) the manner of the alleged noncompliance, (3) the relief requested by the movant, and (4) the signature of the movant or the movant’s attorney. See Tex. Fam. Code Ann. § 157.002(a) (Vernon 2008). The motion to enforce should also include the amount of child support owed, the amount paid, and the amount of arrearages. See Tex. Fam. Code Ann. § 157.002(b) (Vernon 2008).
Gordy argues that section 157.002 of the Family Code is not applicable because she did not file a motion to enforce; she filed a request for a judicial writ of withholding under Chapter 158 of the Family Code. We agree.
Chapter 158 of the Family Code contains a procedure whereby an obligee can obtain a judicial writ of withholding from the court of continuing jurisdiction after an obligor is delinquent in making child support payments in an amount equal to or greater than the total support due for one month, or when income withholding was not ordered at the time child support was ordered. In re Digges, 981 S.W.2d 445, 446 (Tex. App.–San Antonio 1998, no pet.); Tex. Fam. Code Ann. § 158.301(a) (Vernon 2008). The contents required by a notice of application for judicial writ [*4] of withholding are set forth in section 158.301 of the Family Code, which provides

The notice of application for judicial writ of withholding shall be verified and:

(1) state the amount of monthly support due, including medical support, the amount of arrearages or anticipated arrearages, including accrued interest, and the amount of wages that will be withheld in accordance with a judicial writ of withholding;
(2) state that the withholding applies to each current or subsequent employer or period of employment;
(3) state that if the obligor does not contest the withholding within 10 days after the date of receipt of the notice, the obligor’s employer will be notified to begin the withholding;
(4) describe the procedures for contesting the issuance and delivery of a writ of withholding;
(5) state that if the obligor contests the withholding, the obligor will be afforded an opportunity for a hearing by the court not later than the 30th day after the date of receipt of the notice or contest;
(6) state that the sole ground for successfully contesting the issuance of a writ of withholding is a dispute concerning the identity of the obligor or the existence or amount of the arrearages, including [*5] accrued interest;
(7) describe the actions that may be taken if the obligor contests the notice of application for judicial writ of withholding, including the procedure for suspending issuance of a writ of withholding; and
(8) include with the notice a suggested form for the motion to stay issuance and delivery of the judicial writ of withholding that the obligor may file with the clerk of the appropriate court.

Tex. Fam. Code Ann. § 158.302 (Vernon 2008). Gordy’s Notice of Application for Judicial Writ of Withholding complies with these requirements.
Dormancy
Cobb also argues that the trial court lacked jurisdiction because the underlying judgments, i.e., child support payments, were dormant. Specifically, Cobb argues that a child support obligation becomes a final judgment when not paid, see Tex. Fam. Code Ann. § 157.261(a), thus, the last child support payment obligation became a final judgment when the minor child turned 18 in 1988. Thus, Cobb argues, the final judgment was dormant under section 34.001 of the Civil Practices and Remedies Code and will not support Gordy’s request for a writ of judicial withholding. See Tex. Civ. Prac. & Rem. Code Ann. § 34.001(a) (Vernon Supp. 2010) [*6] (stating if writ of execution not issued within 10 years after rendition of a judgment, judgment is dormant). Until recently, this was a disputed issue in the courts of appeals.
In In re Kuykendall, 957 S.W.2d 907, 910 (Tex. App.–Texarkana 1997, no pet.) the Texarkana Court of Appeals held that “although labeled as ‘final judgments’ in the Family Code, the individual monthly arrearages are not final judgments to which the dormancy statute should be applied.” Several other courts of appeals have agreed. See In re E.C.M., 225 S.W.3d 11, 13 (Tex. App.–El Paso 2005, no pet.); In re T.L.K., 90 S.W.3d 833, 838-39 (Tex. App.–San Antonio 2002, no pet.); In re S.C.S., 48 S.W.3d 831, 835-36 (Tex. App.–Houston [14th Dist.] 2001, pet. denied).
However, in Burnett-Dunham v. Spurgin, 245 S.W.3d 14, 17-18 (Tex. App.– Dallas 2007, pet. denied), the Dallas court disagreed, holding that the 10-year dormancy statute applied to individual child support payments even if not reduced to a solitary judgment because “[t]here is simply no exception [to section 34.001 of the Civil Practices and Remedies Code] for family law cases[.]”
We need not decide the dormancy issue because the Legislature has already resolved [*7] the dispute. In 2009, section 34.001 of the Civil Practices and Remedies Code–the dormancy provision–was amended to provide that “[t]his section does not apply to a judgment for child support under the Family Code.” Tex. Civ. Prac. & Rem. Code Ann. § 34.001(c) (Vernon Supp. 2010). The effective date of this amendment was June 19, 2009, before the trial court’s order was signed. A historical note to the amendment provides that it “applies to each judgment for child support under the Family Code, regardless of the date on which that judgment was rendered.” Act of May 28, 2009, 81st Leg., R.S., ch. 767, § 50. Thus, we reject Cobb’s argument that the notice of application for judicial withholding was based on a dormant judgment.
Accordingly, we overrule issue one.

SUFFICIENCY OF THE EVIDENCE
In issue two, Cobb contends the evidence is legally and factually insufficient to support the trial court’s judgment. Specifically, appellant argues that he is entitled to credits for payments he made toward his child-support obligation. Gordy’s response is two-fold: First, she argues that because Cobb did not properly file a motion to stay issuance of the writ of withholding, the trial court properly [*8] determined the arrearages as a matter of law based on her pleadings. Second, she argues that because Cobb did not request findings of fact or a reporter’s record, he cannot show that the evidence is insufficient. We agree with both of Gordy’s arguments.

Failure to Properly File Motion to Stay
Gordy argues that Cobb’s motion to stay issuance of writ of withholding was insufficient because it was (1) untimely, and (2) unverified. We agree. Section 158.307 provides as follows:

(a) The obligor may stay issuance of a judicial writ of withholding by filing a motion to stay with the clerk of the court not later than the 10th day after the notice of application for judicial writ of withholding was received.
(b) The grounds for filing a motion to stay issuance are limited to a dispute concerning the identity of the obligor or the existence or the amount of the arrearages.
(c) The obligor shall verify that statements of fact in the motion to stay issuance of the writ are true and correct.

Tex. Fam. Code Ann. § 158.307 (Vernon 2008). Here, Cobb’s motion was not verified. According to the trial court’s order, Cobb received notice of the application for judicial writ of withholding on May 6, 2009–a finding [*9] he does not challenge on appeal. However, Cobb did not file a motion to stay issuance of the judicial writ of withholding until July 7, 2009–almost two months later. As such, Cobb’s motion to stay was untimely. In her response, Gordy objected to Cobb’s motion to stay on both grounds.
Gordy contends that, because Cobb failed to properly file a motion to stay, he cannot now complain about the amount of arrearages determined by the trial court. In Attorney General v. Mitchell, 819 S.W.2d 556, 559-60 (Tex. App.–Dallas 1991, no writ), the court held that because the obligor did not properly file his motion to stay issuance of the writ of withholding, the trial court had no jurisdiction to consider his complaints regarding the issuance of the writ. See also Effner v. Moore, No. 04-01-00294-CV, 2002 Tex. App. LEXIS 1449, 2002 WL 269116, at *1 (Tex. App.–San Antonio, 2002, no pet.) (holding same).
In Glass v. Williamson, 137 S.W.3d 114, 117 (Tex. App.–Houston [14th Dist.] 2004, no pet.), the Fourteen Court of Appeals, recognized that, post-Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000), the failure to properly file a motion to stay does not deprive the trial court of jurisdiction, but “raised the issue of whether [*10] [the husband/obligor] was entitled to the relief he sought.” Because the wife in Glass did not object to the husband/obligor’s failure to properly file a motion to stay, the husband was entitled to contest the amount of arrearages in the trial court. Id.
Here, Gordy did object to Cobb’s defective motion to stay. Thus, the trial court did not abuse its discretion in concluding that Cobb had not properly invoked his right to challenge the arrearages sought by Gordy and in deciding those arrearages as a matter of law based on the information in her notice.

No findings of fact or conclusions of law or reporter’s record
Cobb also argues that he was not permitted to put on evidence at the hearing regarding whether the amount of arrearages alleged in Gordy’s motion was correct. However, the judgment indicates that “[a] record of the arguments and evidence was made,” thereby indicating that the hearing was an evidentiary hearing. In a bench trial, when no findings of fact and conclusions of law are filed, the trial courts judgment implies all necessary findings of fact to support it. Ryan v. Abdel-Salam, 39 S.W.3d 332, 335 (Tex. App.–Houston [1st Dist.] 2001, pet. denied); Lopez v. Hansen, 947 S.W.2d 587, 589 (Tex. App.–Houston [1st Dist] 1997, no writ). [*11] When the implied facts are supported by evidence, it is our duty to uphold judgment on any theory of law applicable to the case. Lopez, 947 S.W.2d at 589.
Similarly, if no reporter’s record is filed due to the fault of the appellant, we may consider and decide only those issues that do not require a reporter’s record for a decision. See Tex. R. App. P. 37.3(c). We cannot review the sufficiency of the evidence in the absence of a reporter’s record from the trial. See In re J.C., 250 S.W.3d 486, 489 (Tex. App.–Fort Worth 2008, pet. denied).
Because there are no findings of fact and conclusions of law and no reporter’s record, we must presume there was sufficient evidence to support the trial court’s ruling regarding the amount of arrearages.
We overrule issue two.

DUE PROCESS
In issue three, Cobb argues that Chapter 158 of the Family Code violates his right to due process of law. Specifically, Cobb argues that Chapter 158 does not provide for a new citation, personal service, notice, time for response, or evidence. In In re Digges, 981 S.W.2d at 446, the appellant argued that Chapter 158 was unconstitutional because it did not contain a limitations period for obtaining a wage withholding [*12] order and because it limits the defenses that can be raised to the requested withholding. The court disagreed, holding that the protections necessary for an enforcement procedure punishable by contempt did not extent to proceedings for wage withholding orders. Id.
Chapter 158 does provide for notice to the obligor and a hearing to contest arrearages. Cobb has failed to demonstrate how the procedures set up by Chapter 158 are inadequate to protect his constitutional right to due process. Accordingly, we overrule issue four.

CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice