Preston, John Randall v. Preston, Beka Naylor ( 2000 )

NUMBER 13-99-328-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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JOHN RANDALL PRESTON,

Appellant,

v.

BEKA NAYLOR PRESTON, Appellee.

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On appeal from the 267th District Court of Goliad County, Texas.

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O P I N I O N

Before Justices Hinojosa, Yañez, and Chavez Opinion by Justice Chavez

This is an appeal from a trial court's judgment awarding back child support. Appellant, John Randall Preston, argues that he should not have to pay child support for a thirteen-month period because he was taking care of the children during this time. Appellee, Beka Naylor Preston, argues that he was not supporting the children during this time. Appellant raises one point of error.⁽¹⁾ We affirm.

There are two versions of the facts in this case. It is undisputed that during this period of time they lived together for thirteen months and that he worked for a small gymnastics business she ran. Appellant claimed that he had reconciled with his former wife, returned to live with her, worked at the family business, and helped support the family during this time. Appellee alleged that she let her ex-husband return to live with her only because he needed her help to support himself.

Appellee established that appellant had not paid child support of $746 per month for the thirteen months in question. The Texas Family Code provides an affirmative defense to a motion for enforcement of child support if the obligee voluntarily relinquished to the obligor actual possession and control of the child. Tex. Fam. Code Ann. § 5.01 (a) (Vernon 1996). If an obligor provides actual support that is subject to an affirmative defense, he may request reimbursement for that support as a counterclaim or offset against the claim of the obligee. Tex. Fam. Code Ann. § 5.01 (d) (Vernon 1996). The obligor has the burden of establishing any excess support to offset a claim made by an obligee. Curtis v. Curtis, 11 S.W.3d 466, 472 (Tex. App.--Tyler 2000, no pet. h.). To gain a credit against any arrearage, an appellant is required to provide some evidence of the actual amount of money he has expended for his children's support. Buzbee v. Buzbee, 870 S.W.2d 335, 341 (Tex. App.--Waco 1994, no writ).

Appellant argues that his ex-wife voluntarily relinquished possession and control of the children while he lived with her, and that although he provided no "structural support" for his children during this time, all of the income generated by his work at the gymnastics business accrued for the benefit of his ex-wife and children. However, appellant provided no evidence that his ex-wife voluntarily relinquished possession of the children and provided no documentation of any amount of money he provided to support the children. The trial court had no amount of money which it could use as a basis on which it could determine the amount of excess support to offset appellee's claim.

We AFFIRM the judgment of the trial court.

MELCHOR CHAVEZ

Justice

Do not publish.

TEX. R. APP. P. 47.3.

Opinion delivered and filed this

the 14th day of December, 2000.

1. In his reply brief, appellant raises a second point of error. An appellant may file a reply brief addressing any matter in an appellee's brief. Tex. R. App. P. 38.3; 13th Tex. App. (Corpus Christi) Loc. R. 4. The issue addressed in appellant's second point of error is not raised in appellee's brief; it is raised only in appellant's reply to appellee's brief. We therefore may not address this issue. See Brentwood Financial Corp. v. Lamprecht, 736 S.W.2d 836, 847 (Tex. App.--San Antonio 1987, pet. ref. n.r.e.) ("The points raised in the reply brief present new points of error not timely filed and therefore not properly preserved.").