The trial court awarded $113,656.37 in child support arrearageg from a 1972 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 through a writ of withholding and a cumulative money judgement.
The child support obligor argued his child support obligation had become dormant. The appellate court disagreed, holding dormancy does not apply to an unpaid child support payment.
In the Interest of J.M.R.
COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO
June 23, 2004, Delivered
June 23, 2004, Filed
SUBSEQUENT HISTORY: [*1] Released for Publication August 27, 2004.
PRIOR HISTORY: From the 73rd Judicial District Court, Bexar County, Texas. Trial Court No. 1971-FC-240, 445. Honorable John J. Specia, Jr., Judge Presiding.
COUNSEL: For Appellant: Oscar C. Gonzalez, Law Offices of Oscar C. Gonzalez, Inc., San Antonio, TX.
For Appellee: Karen L. Marvel, Steven A. Sinkin, Law Offices of Sinkin & Barretto, P.L.L.C., San Antonio, TX.
JUDGES: Opinion by: Paul W. Green, Justice. Sitting: Alma L. Lopez, Chief Justice, Paul W. Green, Justice, Karen Angelini, Justice.
OPINIONBY: Paul W. Green
OPINION: MEMORANDUM OPINION
This case arises from a dispute over child support. Appellant Raoul Rico and appellee Aurora Garcia were divorced in January of 1972. The trial court ordered Rico to pay child support in the amount of $ 80 a month, from February 1, 1972 until August 7, 1986. In July of 2000, Garcia filed a notice of application for judicial writ of withholding, seeking to obtain unpaid child support payments from Rico. Rico failed to respond, and the writ issued against him on July 31, 2000. In December of 2000, Rico filed a motion to terminate the writ. Garcia subsequently filed a motion for cumulative judgment on the issue of past due child support. Following a hearing, the court granted Garcia’s motion, finding Rico to owe child support in the total amount [*2] of $ 113, 656.37. n1 The court also denied Rico’s motion to terminate the writ. He now appeals this finding in one issue.
n1 Rico was also ordered to pay 10% interest per year on the child support, as well as $ 10,000 in attorney’s fees. The trial court also mandated that Rico pay Garcia $ 7,500 in appellate attorney’s fees if he chose to appeal the case.
Because the issue in this appeal involves the application of well-settled principles of law, we affirm the trial court’s judgment in this memorandum opinion under TEX. R. APP. P. 47.1 for the following reasons:
In his sole issue, Rico claims the trial court erred in failing to apply the ten-year dormancy statute under sections 31.006, and 34.001 of the Texas Civil Practices and Remedies Code. Under these statutes, a judgment becomes dormant if a writ of execution is not issued within ten years of the judgment’s rendition. TEX. CIV. PRAC. & REM. CODE § 34.001(a) (Vernon 2003). The Code also states that a dormant judgment may [*3] not be revived by an action of debt brought after the second anniversary of the date the judgment becomes dormant. TEX. CIV. PRAC. & REM. CODE ANN. § 31.006 (Vernon 2003).
In support of his argument, Rico relies on Texas Family Code section 14.41, as well as the Texas Supreme Court case of Huff v. Huff, 648 S.W.2d 286, 26 Tex. Sup. Ct. J. 273 (Tex. 1983). In Huff, the Court held that an action to enforce an order of child support came within the direct purview of the statute of limitations governing the revival and enforcement of judgments. Huff, 648 S.W.2d at 289; In re T.L.K., 90 S.W.3d 833, 837 (Tex. App.–San Antonio 2002, no pet.). The Texas Legislature subsequently amended the Family Code, codifying the court’s ruling and enacting a statutory ten-year provision: “The court may not enter a judgment for unpaid child support payments that were due and owing more than 10 years before the filing of the motion to render judgment under this section.” TEX. FAM. CODE ANN. § 14.41(b) (Vernon Supp. 1994); In re T.L.K., 90 S.W.3d at 837-38.
However, the Legislature [*4] amended the applicable statute again in 1995, recodifying section 14.41(a) as section 157.263 and section 14.41(b) as section
157.005(b) and removing the ten-year limitation. TEX. FAM. CODE ANN. § §
157.005, 157.263 (Vernon 2003). The current version of section 157.263 provides:
§ 157.263 Confirmation of Arrearages
(a) If a motion for enforcement of child support requests a money judgment for arrearages, the court shall confirm the amount of arrearages and render one cumulative money judgment.
(b) A cumulative money judgment includes:
(1) unpaid child support not previously confirmed. . .
(3) interest on the arrearages; and
(4) a statement that it is a cumulative judgment. Id. at § 157.263.
The current version n2 of section 157.005(b) reads:
(b) The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support until the date all current child support and medical support and child support arrearages, including interest and applicable fees and costs, have been paid. Id. at § 157.005(b).
n2 Prior to a 1999 amendment, section 157.005(b) placed a limitation on the confirmation of child support arrearages, confining the court’s jurisdiction to four years after the child reached the age of 18. The 1999 amendment removed this limitation.
[*5] Under the Family Code provisions as modified, the Civil Practices and Remedies Code dormancy statutes are inapplicable to this case. The trial court retained its jurisdiction over Rico’s case because all child support payments had not been made. Id. Under the current version of the Family Code, the court was permitted to confirm the amount of arrearages with a cumulative money judgment. Id. at § 157.263. Sections 31.006 and 34.001, then, would apply only to the trial court’s 2002 cumulative money judgment and not to the 1972 original divorce judgment. See In re T.L.K., 90 S.W.3d at 837-39 (finding that the ten-year dormancy period does not run from the child support payment’s due date); In re Kuykendall, 957 S.W.2d 907, 910 (Tex. App.–Texarkana 1997, no pet.) (holding that “the ten-year dormancy period begins to run upon the signing of [the] judgment confirming arrearages, and not from the due date of the individual payments); In re S.C.S., 48 S.W.3d 831, 835-36 (Tex. App.–Houston [14th Dist.] 2001, pet. denied). Accordingly, we overrule Rico’s only issue.
The judgment of the trial court is affirmed.
Paul W. Green, [*6] Justice