in the Interest of C.M., a Child ( 2019 )

Affirmed and Memorandum Majority and Memorandum Concurring
Opinions filed May 7, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00751-CV
IN THE INTEREST OF C.M., A CHILD
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 1999-37893
MEMORANDUM MAJORITY OPINION
This is an appeal from income withholding orders for child support arrearages
and attorney’s fees. Father contends that (1) “the trial court abused its discretion in
the underlying order because the underlying relief has previously been litigated by
the parties ending in a final judgment denying much of the requested relief in a
binding arbitration proceeding;” and (2) “the trial court abused its discretion when
[it] entered an order that identifies the payments as child support and authorizing
wage withholding and a child support arrearage finding.” We affirm.
BACKGROUND
Our recitation of the background of the case is constrained by the appellate
record presented to us. We draw the following from the limited record.
Father and Mother divorced, and the trial court signed a Final Decree of
Divorce in September 1999. Father and Mother went to arbitration, and a final
arbitration award was issued in May 2012. In September 2012, the trial court signed
an Order Modifying Final Decree Of Divorce Dated September 24, 1999
Incorporating Final Arbitration Decision And Award.
In May 2015, Mother filed a First Amended Motion To Enforce Additional
Child Support Order By Contempt. She alleged that Father failed to make payments
for their child C.M.’s health care expenses (payments for health insurance and 50%
of uninsured health care expenses) as additional child support as required by the
1999 Final Decree of Divorce and the 2012 Order Modifying Final Decree Of
Divorce Dated September 24, 1999 Incorporating Final Arbitration Decision And
Award. She alleged Father committed 181 separate violations of the 1999 Final
Decree of Divorce and the 2012 Order Modifying Final Decree Of Divorce Dated
September 24, 1999 Incorporating Final Arbitration Decision And Award when he
failed to pay for C.M.’s health care expenses from 2005 to 2014. Mother stated:
“[Father]’s total arrearage as of May 19, 2014 is $30,296.00, which includes cash
medical support, uninsured health care expenses and interest. [Mother] requests
confirmation of all arrearages and rendition of judgment plus interest on arrearages,
as well as attorney’s fees, and costs incurred in this case. [Mother] requests the
Court to order income withheld for the arrearages, attorney’s fees, costs, and
interest.”
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In August 2015, Mother filed a Motion To Confirm Additional Child Support
Arrearage. She essentially made the same allegations and requests contained in her
First Amended Motion To Enforce Additional Child Support Order By Contempt.
A hearing was held on March 1, 2017, but there is no reporter’s record of the hearing.
The parties do not dispute that “the case was tried by stipulation.”
On June 22, 2017, the trial court signed an Order On First Amended Motion
To Enforce Additional Child Support Orders By Contempt For Failure To Pay Cash
Medical Support And Reimbursement Of Uninsured Medical Expenses Granting
Judgment For Arrearages (hereinafter, the “Order To Enforce Additional Child
Support”). The order provides, in pertinent part, as follows:
6. FINDINGS
The Court finds that [Father] was ordered to make periodic payments
of cash medical support and reimbursement of uninsured medical
expenses, in an order entitled Final Decree of Divorce entered by this
Court on September 24, 1999, and in an order entitled Order Modifying
Final Decree of Divorce dated September 24, 1999 incorporated [sic]
Final Arbitration Decision and Award entered by this Court on
September 21, 2012, that . . . states in relevant part as follows:
. . . ‘Health Insurance’
IT IS ORDERED that medical support shall be provided for the
child as follows:
1. [FATHER]’s RESPONSIBILITY — . . . [FATHER] shall,
at all times, provide medical support the for the child. IT IS
THEREFORE ORDERED that, as additional child support,
[FATHER] shall provide medical support for the parties’ child,
for as long as child support is payable under the terms of this
decree, as set out herein.
* * *
3. INSURANCE THROUGH [MOTHER]’s EMPLOYMENT
. . . — . . . [FATHER] is ORDERED to pay to [MOTHER] . . . the
cost of insuring the child on [Mother]’s health insurance plan,
beginning on the first day of the month . . . . Currently medical
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reimbursement is $142.00 per month and [FATHER] is
ORDERED to pay [MOTHER] $142.00 per month, as additional
child support, on the first day of every month beginning on
October 1, 1999, and continuing as long as child support is
payable under the terms of this Decree.
* * *
11. PAYMENT OF UNINSURED EXPENSES — IT IS
ORDERED that the party who pays for a health-care expense on
behalf of the child shall submit to the other party, within ten days
of receiving them, all forms, receipts, bills, and explanations of
benefits paid reflecting the uninsured portion of the healthcare
expenses the paying party incurs on behalf of the child. IT IS
FURTHER ORDERED as additional child support that, within
ten days after the nonpaying party receives the explanation of
benefits stating benefits paid, that party shall pay his or her share
of the uninsured portion of the health-care expenses . . . .
* * *
The Court further finds that [Father] was ordered to reimburse
[Mother] for fifty (50) percent of uninsured medical expenses incurred
for the benefit of the child, [C.M.], in an order entitled Order Modifying
Final Decree of Divorce dated September 24, 1999 incorporated Final
Arbitration Decision and Award approved by this Court on September
21, 2012, that . . . states in relevant part as follows:
. . . ‘Therefore, it is ORDERED BY THE COURT that the Final
Arbitration Decision and Award by Shelly A. Merchant, dated
May 2, 2012, copy attached as Exhibit ‘A’ and incorporated
herein, becomes the Order of the Court and is given the full force
of an Order of the Court, Modifying the Final Decree of Divorce
dated September 24, 1999, and IT IS FURTHER ORDERED
THAT:
3. [MOTHER] shall continue to cover the health insurance
on the child and each party shall pay 50% of the uninsured
medical.’
7. CONTEMPT FINDINGS AND FINDINGS ON
ARREARAGES
Cash Medical Support
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The Court finds that the parties STIPULATED that [FATHER]
did not pay the sum of $21,647.71 being reimbursement to [MOTHER]
for health insurance premiums, plus interest of $7,702.49 as of
September 9, 2016, as set out in Exhibit ‘C’ . . . attached hereto and
incorporated herein by reference . . . and
THEREFORE based on the stipulation of the parties, the Court
accepted such stipulation as evidence in this case and entered the
following ruling:
The Court affirms and ORDERS that [FATHER] is in contempt
on all violations plead for by [MOTHER], save and except for
violations 78 through 100, which the Court DENIES are violations per
the underlying order.
The Court finds that [FATHER] has failed and refused to pay
cash medical support as ordered to [MOTHER] directly . . . in the
amounts and dates shown below:
[listing violations 1 through 77].
The Court finds that the total cash medical support which
[FATHER] has failed and refused to pay is $15,717.37, plus
unconfirmed interest of $7,702.49 from the date such expense was
incurred through September 9, 2016.
Reimbursement of Uninsured Medical
The Court finds that the parties STIPULATED that [FATHER]
did not pay the sum of $5,067.89 being reimbursement to [MOTHER]
for health insurance premiums, plus interest of $1,476.55 as of
September 9, 2016, as set out in Exhibit ‘D’ . . . attached hereto and
incorporated herein by reference . . . and
THEREFORE based on the stipulation of the parties, the Court
accepted such stipulation as evidence in this case and entered the
following ruling:
The Court affirms and ORDERS that [FATHER] is in contempt
on all violations plead for by [MOTHER] are violations per the
underlying order.
The Court further finds that [FATHER] has failed and refused to
reimburse [MOTHER] directly to [MOTHER] . . . fifty (50) percent of
uninsured medical expenses incurred for the benefit of the child, [C.M.]
in the amounts and on the dates shown below:
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[listing violations 101 to 181].
The Court finds that the total reimbursement of uninsured
medical expenses which [FATHER] has failed and refused to pay is
$5,067.89.
* * *
The Court finds and confirms that the balance owed by
[FATHER] to [MOTHER] for the benefit of [C.M.] cash medical
support as additional child support is $15,717.37, and that interest has
accrued on those previously unconfirmed arrearages as of March 1,
2017, in the amount of $7,027.82.
The Court finds and confirms that the balance owed by
[FATHER] to [MOTHER] for the benefit of [C.M.] reimbursement of
uninsured medical expenses incurred for the benefit of the child,
[C.M.], is $5,067.89, and that interest has accrued as of March 1, 2017,
on those uninsured medical arrearages in the amount of $1,476.65.
THEREFORE IT IS ORDERED that Judgment should be
awarded against [FATHER] in the TOTAL amount of $29,289.73 for
the arrearages and interest, for unpaid cash medical support and unpaid
reimbursement of uninsured medical expenses as additional child
support.
* * *
Attorney’s Fees
The Court finds that the parties STIPULATED that
[MOTHER]’s reasonable and necessary attorney fees plus cost in
bringing this motion to confirm additional child support arrearage in
the amount of $13,213.66 as of September 12, 2016, as set out in
Exhibit ‘F’ . . . attached hereto and incorporated herein by reference . .
. and
THEREFORE based on the stipulation of the parties, the Court
accepted such stipulation as evidence in this case and entered the
following ruling:
The Court affirms and ORDERS that [FATHER] pay attorney’s
fees and costs of $11,464.17 for attorney’s fees and costs incurred in
this case.
The Court further finds that attorney’s fees should be withheld
from [FATHER]’s earnings under a separate order for income
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withholding.
* * *
9. JUDGMENT FOR CASH MEDICAL AND
REIMBURSEMENT OF UNINSURED MEDICAL
IT IS ORDERED that [MOTHER] is granted a cumulative
judgment for cash medical support and reimbursement of uninsured
medical expenses, including accrued interest, against [FATHER] for
the sum of TWENTY NINE THOUSAND TWO HUNDRED
EIGHTY-NINE AND 73/100’s DOLLARS ($29,289.73) . . . .
IT IS ORDERED that [FATHER] is obligated to pay and IS
ORDERED to pay to [MOTHER] this judgment on the cash medical
support and reimbursement of uninsured medical expenses at the rate
of ONE THOUSAND TWO HUNDRED TWENTY 41/100’s
DOLLARS ($1,220.41) per month . . . until twenty-four (24) months of
full and complete payments have been withheld to satisfy the
cumulative judgment awarded herein. . . .
10. JUDGMENT FOR ATTORNEY’S FEES AS COSTS
IT IS ORDERED that [MOTHER’S ATTORNEY] is
AWARDED a judgment for attorney’s fees as cost, against [FATHER]
of ELEVEN THOUSAND FOUR HUNDRED SIXTY FOUR AND
17/100’s DOLLARS ($11,464.17) . . . .
IT IS ORDERED that [FATHER] is obligated to pay and is
ORDERED to pay to [MOTHER’S ATTORNEY] this judgment on the
attorney’s fees as costs the sum of SIX HUNDRED NINETY-SEVEN
AND 25/100 ($697.25) per month . . . until the full and complete
judgment has been paid included interest as accumulated.
11. ORDER FOR WITHHOLDING AND CREDIT FOR
AMOUNTS WITHHELD
IT IS ORDERED that all arrearages enumerated above shall be
payable through a withholding from earnings for additional child
support.
IT IS ORDERED that all attorney’s fees and costs awarded in
this order shall be payable through a separate withholding from
earnings for costs and fees.
Exhibits C, D, and F, which were attached to the trial court’s Order To Enforce
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Additional Child Support, show that the parties stipulated to the reimbursement
amount for health insurance premiums and uninsured medical expenses Father failed
to pay Mother as reflected in the trial court’s order.
On June 26, 2017, the trial court signed income withholding orders for child
support arrearages and for attorney’s fees and cost. Father filed a timely appeal from
the income withholding orders.
ANALYSIS
Father challenges the trial court’s income withholding orders in two issues,
arguing that the trial court (1) “abused its discretion in the underlying order because
the underlying relief has previously been litigated by the parties ending in a final
judgment denying much of the requested relief in a binding arbitration proceeding;”
and (2) “abused its discretion when [it] entered an order that identifies the payments
as child support and authorizing wage withholding and an child support arrearage
finding.”
We review issues regarding the payment of child support, confirmation of
child support arrearages, and awards of attorney’s fees under an abuse of discretion
standard. In re R.R., No. 02-15-00032-CV, 2017 WL 632897, at *3 (Tex. App.—
Fort Worth Feb. 16, 2017, pet. denied) (mem. op.) (citing Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990)); see also Kendall v. Kendall, 340 S.W.3d 483, 507
(Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court abuses its discretion if
it acts without reference to any guiding rules or principles, that is, if the act is
arbitrary or unreasonable. Bennett v. Grant, 525 S.W.3d 642, 654 (Tex. 2017).
Father contends in his first issue that the parties submitted “all issues” to
“binding arbitration which resulted in a binding decision in 2012.” Father claims
“that decision controls the ruling in the trial court below and therefore that Court
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acted beyond its authority and contrary to binding principles of law because it acted
in contravention to the prior arbitration ruling.” He contends the trial court’s Order
To Enforce Additional Child Support and the trial court’s “attendant wage
withholding orders are in direct contravention to the prior binding final arbitration
award and as such they should be set aside.”
We note that the record before us does not contain the arbitration award, nor
does Father cite to anything in the record to support his contention that the trial
court’s orders conflict with the arbitration award so that “they should be set aside.”
The burden is on the complaining party to present a sufficient record to the appellate
court to show error requiring reversal. Aguero v. Aguero, 225 S.W.3d 236, 238 (Tex.
App.—El Paso 2006, no pet.) (“Because Smith has not presented a record sufficient
to show that the trial court ordered contempt without due process in its employer’s
order to withhold earnings, he has waived this complaint.”).
From the record before us, specifically the language quoted in the trial court’s
Order To Enforce Additional Child Support, it is evident that the trial court merely
enforced (1) the 1999 Final Decree of Divorce and (2) the 2012 Order Modifying
Final Decree Of Divorce Dated September 24, 1999 Incorporating Final Arbitration
Decision And Award. Further, the income withholding orders conform with the
Order To Enforce Additional Child Support. Therefore, we overrule Father’s first
issue.
Father argues in his second issue that the trial court abused its discretion by
entering “an order that characterized medical bills and health insurance cost as child
support and awarded a child support arrearage judgment against” him. Father claims
“[t]here is no basis for the court’s determination of the amount [of] arrearage and the
characterization that the arrearages as past due child support and subject to a wage
withholding order.” In that regard, Father states: “The authority of this trial court
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only flows through the Arbitration Agreement of the parents. . . . In this instance the
arbitrator fails to characterize the additional payments as anything but medical bills.
In fact she failed to characterize them as anything other than that debt owed by each
parent. There is no order language, no command language, and no characterization.”
Again, we note that the record does not contain the arbitration award.
However, the record does contain the Order To Enforce Additional Child Support,
which specifically awards Mother as “additional child support” reimbursement for
“cash medical support” (i.e., health insurance premiums) paid by her for C.M. and
reimbursement for “uninsured medical expenses” paid by her for C.M. As
prominently stated in that order, these awards were based on the 1999 Final Decree
of Divorce and the 2012 Order Modifying Final Decree Of Divorce Dated September
24, 1999 Incorporating Final Arbitration Decision And Award, which characterized
medical support and uninsured medical expenses as “additional child support” to be
paid by Father. Father does not dispute that the trial court’s Order To Enforce
Additional Child Support correctly quotes and properly relies on the language in the
1999 Final Decree of Divorce and the 2012 Order Modifying Final Decree Of
Divorce Dated September 24, 1999 Incorporating Final Arbitration Decision And
Award. Thus, contrary to Father’s contention, there is a basis for the trial court’s
“characterization [of] arrearages as past due child support.”
Further, we reject Father’s assertion that “[t]here is no basis for the court’s
determination of the amount [of] the arrearage.” The trial court’s Order To Enforce
Additional Child Support specifically states that the amount for arrearages is based
on the parties’ stipulations in Exhibits C, D, and F. Exhibits C, D, and F are attached
to the trial court’s order and show that the parties stipulated to the reimbursement
amount for health insurance premiums and uninsured medical expenses Father failed
to pay Mother as reflected in the trial court’s order. Therefore, there is a basis for
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“the court’s determination of the amount [of] the arrearage.”
Father also makes the following statement in his brief: “To make a bad
situation somewhat worse the Court then orders that the requested attorney fees also
be characterized and awarded as additional child support.” To the extent Father is
arguing that the trial court awarded attorney’s fees as additional child support, his
assertion is not supported by the record.
The Order To Enforce Additional Child Support clearly awards attorney’s
fees not as child support but as costs, stating that “IT IS ORDERED that [Mother’s
attorney] is AWARDED a judgment for attorney’s fees as cost.” In addition, the
income withholding order states: “Withholding from Earnings for Attorney’s Fees
and Costs.” There is no mention in the record of attorney’s fees being awarded as
child support. Furthermore, “[i]n 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.” Tex. Fam. Code Ann. §
158.0051(a) (Vernon 2014).
Accordingly, we conclude the trial court acted within its discretion, and we
overrule Father’s second issue.
CONCLUSION
We affirm the trial court’s orders.
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/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan (Frost, C.J.,
concurring).
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