Important Cases

On November 17, 1970, Mae and John, an attorney, were divorced, and Mae was granted custody of their four minor children. 1 The divorce decree ordered [*2] John to pay $350 per month in child support to Mae until the youngest child turned eighteen. 2 On September 6, 1977, the trial court entered an order holding John in contempt for failure to pay child support and finding him in arrears in the amount of $7,500 (“1977 order”).

1 At the time of the divorce, J.W. was eleven years old, S.K. was seven years old, S.N. was five years old, and T.W. was one year old.

2 T.W. turned eighteen years old on January 30, 1987.

In 1985, after Mae assigned her child support rights to the State of Texas, support payments and arrearages were ordered paid to the Office of the Attorney General. 3 In August 2008, upon an application for services from Mae, the Attorney General’s office opened a child support case file and was again assigned Mae’s support rights. Later that month, the Attorney General’s office closed the file due to the children’s age. 4

3 Title IV-D of the Social Security Act requires states to provide services relating to the enforcement of child support obligations for children who receive government assistance payments and for other children whose guardians request the services. See 42 U.S.C. § 654(4) (West Supp. 2010). In Texas, the Office of [*3] the Attorney General is designated as Texas’s Title IV-D agency. See Tex. Fam. Code Ann. § 231.001 (West 2008). When the Attorney General provides Title IV-D services, it becomes entitled to an assignment of support rights. Id. § 231.104 (West 2008).

4 At the time the file was closed, J.W. was forty-nine years old, S.K. was forty-four years old, S.N. was forty-three years old, and T.W. was thirty-nine years old.

On May 28, 2009, Mae filed a notice of application for judicial writ of withholding as well as notices of child support liens. John subsequently filed a motion to stay issuance and delivery of the writ, in which he challenged the existence and amount of arrearages. On June 12, 2009, Mae filed her answer and request for affirmative relief in which she requested foreclosure of her child support liens and a determination of child support arrears. On June 29, 2009, John filed his second amended motion to stay in which he alleged that Mae’s enforcement action was time-barred. On June 30, 2009, Mae filed a supplemental answer and request for affirmative relief.

On July 2, 2009, the trial court held a hearing on John’s motion to stay and Mae’s request for affirmative relief. At the conclusion [*4] of the hearing, the associate judge presiding at the hearing orally rendered judgment (1) denying John’s motion to stay and (2) granting Mae’s request for affirmative relief and a cumulative child support arrearage judgment to Mae in the amount of $263,215.52, inclusive of interest, plus court costs and attorney’s fees. On July 30, 2009, the trial court entered the order on arrears (“2009 order”) as well as an order denying John’s limitations defenses. John subsequently filed a request for trial de novo and a motion to vacate order or for new trial; the trial court denied both. This timely appeal followed.

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 Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Chenault v. Banks, 296 S.W.3d 186, 189 (Tex. App.–Houston [14th Dist.] 2009, no pet.) (reviewing an enforcement order under an abuse of discretion standard). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford, 801 S.W.2d at 109; Evans v. Evans, 14 S.W.3d 343, 346 (Tex. App.–Houston [14th Dist.] 2000, no pet.). [*5] A trial court does not abuse its discretion as long as some evidence of a substantive and probative character exists to support the trial court’s decision. In re C.A.M.M., 243 S.W.3d 211, 214 (Tex. App.–Houston [14th Dist.] 2007, pet. denied). When, as here, the trial court did not file findings of fact and conclusions of law, 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 (Tex. 1992); Chenault, 296 S.W.3d at 189.

A. Mae’s Standing to Bring Suit

In his first issue, John contends that the trial court abused its discretion by denying his verified plea of defect of parties. Specifically, he argues that Mae lacks standing to bring her claim for enforcement of child support.

The record reflects that Mae first assigned her child support rights to the State of Texas in 1985. In August 2008, upon Mae’s application for services, the Attorney General’s office opened a child support case file and was again assigned Mae’s support rights. At the July 2, 2009 hearing, evidence was presented that the Attorney General had closed [*6] the file on August 28, 2008, due to the children’s age and had taken no further action.

John first argues that Mae lacks standing to bring this action to enforce payment of child support arrearages because she assigned her support rights to the Attorney General’s office in August 2008. However, the undisputed evidence establishes that the Attorney General’s office closed the case on August 28, 2008, and the assignment was terminated.

John next asserts that even if the assignment was terminated, he did not receive notice of the termination as required by Texas Family Code section 231.106(a). 5 Thus, he argues, the Attorney General’s failure to notify him of the termination prevented him from making payments to Mae because he believed that he was still obligated to make payments to the Attorney General’s office.

5 Section 231.106 provides, in relevant part, as follows:

(a) On termination of support rights to the Title IV-D agency, the Title IV-D agency shall, after providing notice to the obligee and the obligor, send a notice of termination of assignment to the obligor or other payor, which may direct that all or a portion of the payments be made payable to the agency and to other persons [*7] who are entitled to receive the payments.

Tex. Fam. Code Ann. § 231.106 (West 2008).

It is true that section 231.106 requires the Attorney General’s office to send a notice of termination of assignment to the obligor and obligee upon the termination of support rights to the office. See Tex. Fam. Code Ann. § 231.106(a). Notwithstanding this requirement, we find nothing in Chapter 231 suggesting that there is a penalty for failure to send a notice. Further, we find John’s argument that he was precluded from making payments to Mae because he was not notified of the termination to be disingenuous. When the trial judge asked John whether it was his position that he had paid the arrearages to the Attorney General’s office, he admitted that it was not.

John also argues that Mae is precluded from bringing this action because there is no evidence that the Attorney General’s office reassigned, transferred, or released the claim to Mae following termination of the assignment pursuant to Family Code section 231.002(i). 6 However, John has not properly preserved the issue of release for appellate review. 7 See Tex. R. App. P. 33.1 (requiring, as prerequisite to presenting issue for appellate [*8] review, that record show appellant’s presentation of issue before trial court by timely request, objection, or motion, stating grounds with sufficient specificity to make trial court aware of complaint). Having failed to raise the issue of lack of release in the trial court, he has waived this argument on appeal. See id. We overrule John’s first issue.

6 Section 231.002(i) provides that “[t]he Title IV-D agency may provide a release or satisfaction of a judgment for all or part of the amount of the arrearages assigned to the Title IV-D agency under section 231.104(a).” Id. § 231.002(i) (West Supp. 2009).

7 In his answer to Mae’s request for affirmative relief, John alleged only that Mae no longer owned her claim for child support due to the August 6, 2008 assignment of her support rights to the Attorney General’s office. At the July 2, 2009 hearing, John argued only that if the assignment had, in fact, been terminated, he had not received notice of the termination.

B. Trial Court’s Jurisdiction to Confirm Child Support Arrearages

In his second issue, John contends that the trial court did not have jurisdiction to determine the child support arrearages. Specifically, he claims that the court [*9] abused its discretion because it failed to recognize the time limitations imposed on its jurisdiction by Family Code section 157.005(b).

The version of section 157.005(b) in effect when Mae filed her request for affirmative relief provided, in pertinent part,

(b) The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support if a motion for enforcement requesting a money judgment is filed not later than the 10th anniversary after the date:

(1) the child becomes an adult; or

(2) on which the child support obligation terminates under the child support order or by operation of law.

Act of May 29, 2005, 79th Leg., R.S., Ch. 916, § 21, 2005 Tex. Gen. Laws 3148, 3155 (amended 2009) (current version at Tex. Fam. Code Ann. § 157.005(b) (West Supp. 2009)). John claims that under this provision, Mae was required to file her pleading seeking confirmation of child support arrearages within ten years of the emancipation of their youngest child, which she did not do. We disagree.

After Mae filed her notice of application for judicial writ of withholding and delivered notices of child support liens to John, John filed his motion [*10] to stay issuance and delivery of the writ, in which he challenged the existence and the amount of arrearages. Thereafter, Mae requested affirmative relief under two different enforcement remedies: a determination of arrearages under section 158.309, 8 and a foreclosure of the child support liens and judgment for the arrears under section 157.323. 9 Contrary to John’s contention, Mae did not request a determination of child support arrears and a judgment under section 157.005(b). 10

8 n 8 Section 158.309(c) provides that “[u]pon hearing [a motion to stay], the court shall: (1) render an order for income withholding that includes a determination of the amount of child support arrearages, including medical support and interest; or (2) grant the motion to stay. Tex. Fam. Code Ann. § 158.309(c) (West 2008).

9 Section 157.323(c)(1) provides that if arrearages are owed by the obligor in an action to foreclose a child support lien, “the court shall … render judgment against the obligor for the amount due, plus costs and reasonable attorney’s fees ….” Tex. Fam. Code Ann. § 157.323(c)(1) (West 2008).

10 Our conclusion is further supported by the following statements made by Mae’s counsel at the [*11] June 2, 2009 hearing:

Ms. Marvel: We are not seeking a judgment under 157.005(b) because that statute is the ten-year statute. And we recognize that that does not apply here. We are seeking two separate remedies under the Family Code under Chapter 158. Specifically, 158.309 which allows us under judicial writ of withholding when he files a motion to stay, which the obligor has done, asks the Court to confirm the child support arrears and make a determination. And under 157.323, when someone challenges the issuance of a child support lien, the Court can determine the arrears and render judgment.

Further, section 158.102 imposes no deadline on the trial court’s jurisdiction to issue an order or writ for income withholding under the chapter and authorizes the entry of such an order “until all current support and child support arrearages, interest, and any applicable fees and costs, including ordered attorney’s fees and court costs, have been paid.” Tex. Fam. Code Ann. § 158.102 (West 2008); see also In re A.D., 73 S.W.3d 244, 249 (Tex. 2002) (recognizing that administrative wage withholding by Attorney General’s office is available regardless of length of time obligor has avoided his court-ordered [*12] support duty); Packard v. Davis, No. 2-08-022-CV, 2008 Tex. App. LEXIS 8672, 2008 WL 4925998, at *2 (Tex. App.–Fort Worth Nov. 13, 2008, no pet.) (mem. op., not designated for publication). Similarly, section 157.318 provides that a child support lien, which secures payment of all child support arrearages owed by the obligor under the underlying child support order, “is effective until all current support and child support arrearages, including interest, any costs and reasonable attorney’s fees … have been paid ….” Tex. Fam. Code Ann. § 157.318 (a), (c) (West Supp. 2009).

We conclude that the trial court possessed jurisdiction to sign an enforcement order allowing Mae to collect unpaid child support by means of a child support lien or writ of withholding. We overrule John’s second issue.

C. Applicability of Dormancy Statutes

In his third issue, John contends that Mae is barred from recovering past-due child support because her “judgment of May 18, 1977″ as well as her “statutory judgments” pursuant to Texas Family Code section 157.261(a) are dormant under Texas Civil Practice and Remedies Code section 34.001. He also argues that Mae failed to revive the judgments under Texas Civil Practice and Remedies Code section 31.006.

Texas Civil Practice and Remedies Code section 34.001(a) [*13] provides that “[i]f a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived.” Tex. Civ. Prac. Rem. Code Ann. § 34.001(a) (West Supp. 2009). Section 31.006 of the Code provides that “[a] dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date that the judgment becomes dormant.” Id. § 31.006 (West 2008).

John argues that Mae’s “judgment of May 18, 1977″ is more than ten years old and is, thus, dormant under section 34.001. The “judgment” to which John refers is the trial court’s 1977 order in which it found John in arrears and held him in contempt for his failure to pay his support obligations. John’s argument, however, is without merit. The ten-year dormancy statute comes into play only when child support arrearages are reduced to a judgment confirming arrearages. In re S.C.S., 48 S.W.3d 831, 836 (Tex. App.–Houston [14th Dist.] 2001, pet. denied); see also In re D.T., No. 12-05-00420-CV, 2007 Tex. App. LEXIS 9968, 2007 WL 4465250, at *2 (Tex. App.–Tyler Dec. 21, 2007, no pet.) (mem. [*14] op.); In re J.M.D., No. 14-03-01196, 2006 Tex. App. LEXIS 2510, 2006 WL 1148113, at *1 (Tex. App.–Houston [14th Dist.] Mar. 30, 2006, pet. denied) (mem. op., not designated for publication). The ten-year dormancy period began to run upon the signing of the judgment confirming arrearages, not from the date of the contempt order. See Tex. Civ. Prac. & Rem. Code Ann. § 34.001; In re D.T., 2007 Tex. App. LEXIS 9968, 2007 WL 4465250, at *2 (finding trial court’s order to pay arrearages was not judgment confirming arrearages and, therefore, not barred by section 34.001); In re J.M.D., 2006 Tex. App. LEXIS 2510, 2006 WL 1148113, at *1 (concluding divorce decree is not child support judgment and dormancy period under section 34.001 does not run from date of divorce decree).

John also contends that Mae’s “statutory judgments” under Family Code section 157.261(a) are dormant. Section 157.261(a) of the Family Code provides that “[a] child support payment not timely made constitutes a final judgment for the amount due and owing, including interest as provided in this chapter.” Tex. Fam. Code Ann. § 157.261(a) (West 2008). 11 Thus, John argues, each missed child support payment, the last of which would have presumably occurred in January 1987 when his youngest child turned eighteen [*15] years old, became dormant ten years from the date it became due. See Tex. Fam. Code Ann. § 157.261(a); Tex. Civ. Prac. & Rem. Code Ann. § 34.001. John’s reliance on section 157.261(a) is misplaced. We have previously held that the ten-year dormancy period under section 34.001 does not run from the dates on which individual child support payments are due. See In re S.C.S., 48 S.W.3d at 836; see also in re J.M.D., 2006 Tex. App. LEXIS 2510, 2006 WL 1148113, at *1.

11 It is undisputed that John missed numerous support payments between the date the divorce decree was signed and the date of emancipation of his youngest child on January 30, 1987. The record reflects that his last child support payment was made on March 25, 1983.

Because John’s child support arrearages were not reduced to a judgment until July 2009, his dormancy argument fails. See In re S.C.S., 48 S.W.3d at 836. Accordingly, we overrule John’s third issue. 

12 Because we find that Texas Civil Practice and Remedies Code section 34.001(a) does not bar Mae’s action, we need not address John’s argument that subsection (c), which provides that “[section 34.001] does not apply to a judgment for child support under the Family Code,” violates article I, section 16 of the Texas Constitution [*16] prohibiting retroactive laws. See Tex. Civ. Prac. & Rem. Code. § 34.001(c) West Supp. 2009); Tex. Const. art. I, § 16.

D. Calculation of Cumulative Child Support Arrearage Judgment

In his fourth issue, John contends that the trial court abused its discretion by granting Mae a cumulative money judgment in the amount of $263,215.52. Specifically, he argues that because the judgment included interest, it impermissibly modified the amount of previously determined arrearages.

In calculating child support arrearages, the trial court’s discretion is very limited. See Chenault, 296 S.W.3d at 189. Family Code section 157.262(a) states that in rendering a money judgment, 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) (West Supp. 2009); Chenault, 296 S.W.3d at 189. The trial court “acts as a mere scrivener in mechanically tallying up the amount of arrearage.” Chenault, 296 S.W.3d at 189.

At the July 2, 2009 hearing, in support of her request for a cumulative money judgment, Mae presented uncontested evidence that John owed $140,845.33 in missed child support payments to date. This amount included [*17] the $7,500 arrearage reflected in the 1977 order and all subsequent missed payments. In addition, Mae presented evidence showing $122,370.19 in accrued interest; this sum reflected the interest that had accrued on the $7,500 arrearage as well as John’s subsequent missed payments. At the conclusion of the hearing, the trial court granted a cumulative child support arrearage judgment to Mae in the amount of $263,215.52.

John complains that the trial court impermissibly modified the “final judgment of November 17, 1970″ and “the order of May 18, 1977″ in calculating the arrearages and interest in the 2009 judgment. However, the 1970 “judgment” to which John refers is not a judgment, but rather the divorce decree. A divorce decree is not a child support judgment. See S.C.S., 48 S.W.3d at 836. Likewise, the 1977 order is the contempt order previously discussed and is not a child support judgment. See In re D.T., 2007 Tex. App. LEXIS 9968, 2007 WL 4465250, at *2.

Nevertheless, John’s argument is flawed for another reason. The Family Code provides that “[i]f a motion for enforcement of child support requests a money judgment for arrearage, the court shall confirm the amount of arrearages and render one cumulative money [*18] judgment” that includes “interest on the arrearages.” Tex. Fam. Code Ann. § 157.263(a), (b)(3) (West 2008). Awarding interest on child support arrearage is mandatory, and the trial court has no discretion to not award the full amount of interest due. See Chenault, 296 S.W.3d at 193.

In the absence of findings of fact and conclusion of law, 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 Heine, 835 S.W.2d at 83; Chenault, 296 S.W.3d at 189. Here, based on the uncontested evidence and the terms of the divorce decree, the trial court properly calculated the arrearages and interest John owed and rendered one cumulative money judgment. 13 We overrule John’s fourth issue.

13 John also contends that the judgment in arrears entered on July 30, 2009, was a judgment nunc pro tunc because it “provide[d] a different amount of child support [and] is not a change to correct a clerical error and is void.” As support for his contention, John points to Mae’s supplemental answer and request for affirmative relief, in which she requested that “[a]ny orders relied upon by Obligor John W. Overton and [*19] held valid by this Court should be modified nunc pro tunc to accurately reflect the correct arrears and interest.”

A trial court may at any time correct a clerical error in the judgment by entering a judgment nunc pro tunc. See Tex. Civ. P. 316, 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered and does not arise from judicial reasoning or determination. Hernandez v. Lopez, 288 S.W.3d 180, 184 (Tex. App.–Houston [1st Dist.] 2009, no pet.). By contrast, a judicial error occurs in the rendering, as opposed to the entering, of a judgment. Escobar, 711 S.W.2d at 231. It arises from a mistake of law or fact that requires judicial reasoning to correct. Butler. v. Cont’l Airlines, Inc., 31 S.W.3d 642, 647 (Tex. App.–Houston [1st Dist.] 2000, pet. denied). The trial court can only correct the entry of a final written judgment that incorrectly states the judgment actually rendered. Escobar, 711 S.W.2d at 231-32. Even if the trial court incorrectly rendered judgment, it cannot alter a written judgment that precisely reflects the incorrect rendition. Id. at 232. [*20] A judgment rendered to correct a judicial error after the court’s thirty-day plenary period has expired is void. Hernandez, 288 S.W.3d at 185.

Notwithstanding the request in Mae’s pleading, there is nothing in the record to suggest that the trial court’s 2009 order in arrears was a judgment nunc pro tunc. Besides the fact that the words “nunc pro tunc” appear nowhere in the 2009 order, the court was not attempting to correct an error in the 1970 divorce decree or 1977 contempt order-rather, the court was fulfilling its statutory obligation to award interest on John’s child support arrearages. See Tex. Fam. Code Ann. § 157.263(a), (b)(3); Chenault, 296 S.W.3d at 193.

E. Award of Attorney’s Fees

Under Family Code section 157.167(a), “[i]f the court finds that the respondent has failed to make child support payments, the court shall order the respondent to pay the movant’s reasonable [*21] attorney’s fees and all court costs in addition to the arrearages. Fees and costs ordered under this subsection may be enforced by any means available for the enforcement of child support, including contempt.” Tex. Fam. Code Ann. § 157.167(a) (West 2008). In its 2009 order, the trial court found that John had failed to pay his court-ordered child support and ordered him to pay arrearages and accrued interest as well as Mae’s attorney’s fees. Under subsection (a), Mae was entitled to enforce payment of her attorney’s fees by any means available for the enforcement of child support, one of which is through an order withholding earnings. See Tex. Fam. Code Ann. §§ 157.167(a), 158.0051 (West 2008). 14

14 Section 158.0051 provides, in relevant part:

(a) In addition to an order for income to be withheld for child support, including child support and child support arrearages, the court may render an order that income be withheld from the disposable earnings of the obligor to be applied towards the satisfaction of any ordered attorney’s fees and costs resulting from an action to enforce child support under this title.

Tex. Fam. Code Ann. § 158.0051 (West 2008).

John’s reliance on section 157.167(b) [*22] is misplaced. Subsection (b) applies only when a respondent “has failed to comply with the terms of an order providing for the possession of or access to a child,” which is not the case here. Id. § 157.167(b). 15 John also cites Finley v. May, 154 S.W.3d 196, 199 (Tex. App.–Austin 2004, no pet.), in support of his contention that the trial court improperly assessed attorney’s fees as child support. However, Finley is distinguishable from the case before us. In Finley, the appeals court found that the trial court had erred in assessing the mother’s attorney’s fees and costs as child support because the case involved modification of the parent-child relationship, not the enforcement of delinquent child support obligations, as is the case here. See 154 S.W.3d at 199 (recognizing attorney’s fees may be assessed as child support during child support enforcement proceedings).

15 Section 157.167(b) provides as follows:

(b) If the court finds that the respondent has failed to comply with the terms of an order providing for the possession of or access to a child, the court shall order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to any other [*23] remedy. If the court finds that the enforcement of the order with which the respondent failed to comply was necessary to ensure the child’s physical or emotional health or welfare, the fees and costs ordered under this subsection may be enforced by any means available for the enforcement of child support, including contempt, but not including income withholding.

Id. § 157.167(b).

We conclude that the trial court did not abuse its discretion in allowing Mae to enforce the collection of attorney’s fees through a judicial writ of withholding. We overrule John’s fifth issue.

Having overruled all of John’s issues, we affirm the trial court’s judgment.

/s/ Adele Hedges

Chief Justice

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.

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.

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.

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

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.

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.

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.

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.

*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.

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)