in the Interest of K.M.M. and N.T.M., Children ( 2012 )

MEMORANDUM OPINION
No. 04-11-00240-CV
IN THE INTEREST OF K.M.M. AND N.T.M., Children
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CI-12758
Honorable Peter A. Sakai, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: March 21, 2012
AFFIRMED
Diane Joy McRae Sharpe appeals from a trial court judgment finding that her ex-
husband, Clinton D. Murphy, owed no child support arrears as of March 4, 2011. Because we
conclude the trial court did not abuse its discretion, we affirm the trial court judgment.
PROCEDURAL AND FACTUAL BACKGROUND
Prior to the hearing at issue in this appeal, the parties were before the court on numerous
occasions. We will summarize the various motions and hearings prior to the March 4, 2011
hearing to understand the record and chronology:
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1. Diane and Clinton were divorced on November 14, 2007. 1 Diane was given the
exclusive right to designate the primary residence of the couples’ two children within
Bexar County. Clinton was ordered to pay child support in the amount of $613 per
month beginning December 1, 2007. The payments were ordered to be made
through the Texas Child Support Disbursement Unit. Diane relinquished possession
of the children to Clinton on the day the divorce was orally granted.
2. On January 25, 2008, Diane filed a motion for new trial contending in part that the
trial court “erred in failing to provide for payment by [Clinton] of delinquent child
support which the Court previously awarded in a prior hearing.” Diane specifically
alleged that Clinton owed $10,230 in delinquent child support.
3. On February 15, 2008, a hearing was held on Diane’s motion for new trial. The
parties waived the making of a record of testimony. The trial court denied the
motion for new trial but ordered the parties’ attorneys to confer within 30 days
regarding the alleged delinquent child support.
4. On August 18, 2008, Clinton filed a motion to modify seeking, in part, child support
from Diane based upon his actual and physical possession of the children since the
date of the divorce.
5. On August 29, 2008, the parties appeared and entered into a handwritten agreement
for temporary orders. The handwritten agreement was signed by the parties and by
the Honorable Judge Michael Peden and provided that the children remain in Bexar
County with Clinton, granted Diane weekend visitation, and terminated Clinton’s
child support obligation.
1
The written order was not signed until December 27, 2007.
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6. On January 13, 2009, Clinton filed motions for supplemental temporary orders
seeking child support from Diane. Diane filed a counter-petition.
7. On January 28, 2009, a hearing was held at which time the trial court maintained the
August 29, 2008 order and denied Clinton’s request for child support.
8. On March 29, 2010, after the parties reached a mediated settlement agreement, an
agreed final order was entered. The agreed final order granted Diane the exclusive
right to designate the children’s primary residence without regard to geographic
location and further ordered Clinton to pay child support in the amount of $500 per
month beginning on January 1, 2011. The order is silent as to past-due or delinquent
child support.
Turning now to the hearing before us, one month after Clinton began making child
support payments in January 2011, he filed a motion to confirm child support arrearage in which
he alleged that he had made some child support payments directly to Diane rather than through
the Office of the Attorney General; therefore, he asked the court to confirm that he “currently
owes no arrears on his regular child support obligation.” On March 4, 2011, a hearing was held
on Clinton’s motion. Counsel for both Clinton and Diane as well as for the Attorney General
made their appearances and participated in the hearing. Diane’s attorney, however, announced
“not ready” due to the fact that a medical emergency prevented Diane from attending the
hearing. The court proceeded nonetheless.
During the hearing, Clinton’s attorney argued that the Attorney General’s pay records
showing arrears were inaccurate because the Attorney General was not recognizing the August
29, 2008 handwritten order signed by Judge Peden terminating Clinton’s child support
obligation. Counsel for the Attorney General’s Office acknowledged that they had not taken into
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consideration the August 29, 2008 order. In response, Diane’s attorney argued that Clinton still
owed past-due child support and suggested there existed an order out of Jim Hogg County.
However, no order or other evidence was admitted and no witnesses were called to testify by
either side. The trial court reviewed the previous orders of August 29, 2008 and March 29, 2010.
At the conclusion of the hearing, the trial court made the following written findings: “The Court
FINDS no child support arrearage as [of] the March 29, 2010 Order in Suit Affecting the Parent-
Child Relationship. Further, the Court FINDS the obligor is under a child support obligation at
the time, and is current.” The court entered a judgment on arrears finding no child support
arrears as of March 4, 2011.
Diane now timely appeals the March 4, 2011 order arguing in three issues that: (1) the
trial court erred in finding no child support arrearage; (2) the trial court erred in denying her oral
motion for continuance; and (3) her rights to due process were violated because the order
determined disputed issues not pled by Clinton.
STANDARD OF REVIEW
We review a determination of child support arrearages for an abuse of discretion. See
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re A.L.G., 229 S.W.3d 783, 784 (Tex.
App.—San Antonio 2007, no pet.). A trial court abuses its discretion if it acts without reference
to any guiding rules or principles. Worford, 801 S.W.2d at 109. A trial court’s failure to analyze
or apply the law correctly constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992); In re G.L.S., 185 S.W.3d 56, 58 (Tex. App.—San Antonio 2005, no pet.).
DISCUSSION
Diane initially argues that there is no evidence to support the trial court’s finding of no
child support arrearage. She complains that no documentary evidence was presented to the trial
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court or considered by the trial court in making its finding of zero arrearages and “wip[ing] out
more than $20,000 in arrearage[s].” We disagree. The decree of divorce signed on December
27, 2007 ordered Clinton to pay $613 per month beginning December 1, 2007. There is nothing
in the record to indicate child support was ordered prior to December 1, 2007. Although Diane
filed a motion for new trial complaining that the trial court erred in failing to provide for
payment of delinquent child support that was awarded in a prior hearing, the motion for new trial
was denied by the trial court and the parties were ordered to mediate the dispute within 30 days.
Subsequently, on August 29, 2008, the trial court terminated Clinton’s child obligation based on
his actual and physical possession of the children. 2 Moreover, the final order entered on March
29, 2010, which reflects the parties’ mediated settlement agreement, is silent on the issue of any
past-due child support owed by Clinton and specifically delayed Clinton’s child support
payments resuming until January 1, 2011—a nine-month delay.
The trial court in reaching its decision reviewed the Attorney General’s records and the
August 29, 2008 and the March 29, 2010 orders. Counsel for the Attorney General’s office
confirmed that the August 29, 2008 order stopping Clinton’s child support obligation had not
been entered into the Attorney General system and that Clinton’s payments for January and
February 2011 were current. No controverting evidence was admitted into evidence. After
considering the entire record before us, we cannot conclude the trial court abused its discretion in
finding zero arrearages. Diane’s first issue is overruled.
2
Based on the record, Clinton owed 9 months of child support for the time period from December 1, 2007 through
August 2008 or a total amount of $5517.
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Diane next contends that the trial court erred in denying her oral motion for continuance
and holding the hearing in her absence. 3 The granting of a continuance rests within the sound
discretion of the trial court. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800
(Tex. 2002). Rule 251 of the Texas Rules of Civil Procedure provides that no continuance shall
be granted “except for sufficient cause supported by affidavit, or by consent of the parties, or by
operation of law.” TEX. R. CIV. P. 251. Diane’s oral motion for continuance was not supported
by affidavit, and Clinton did not consent to a continuance. Accordingly, the trial court did not
abuse its discretion in denying Diane’s oral motion for continuance. See Villegas v. Carter, 711
S.W.2d 624, 626 (Tex. 1986) (appellate court presumes trial court did not abuse its discretion
when motion for continuance is not supported by affidavit as required by Rule 251); Serrano v.
Ryan’s Crossing Apts., 241 S.W.3d 560, 564 (Tex. App.—El Paso 2007, pet. denied) (appellate
court presumes no abuse of discretion in denying motion for continuance that is not verified or
supported by affidavit); Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex. App.—Dallas
2003, pet. denied).
Finally, Diane argues her due process rights were violated because the motion to confirm
arrearages filed by Clinton failed to provide proper notice that he was seeking to “wipe out his
entire child support obligation.” Specifically, she complains that Clinton’s motion only sought
confirmation of arrearages from January 1, 2011 to March 4, 2011. We disagree. The motion
filed by Clinton asks the trial court to confirm that he currently owes no arrears. While the
motion recites that Clinton was ordered to pay $500 per month beginning January 1, 2011
3
Although the trial court did not expressly rule on Diane’s oral motion for continuance, it proceeded with the
hearing, thus implicitly denying the motion for continuance. See In re A.D.A., 287 S.W.3d 382, 387 (Tex. App.—
Texarkana 2009, no pet.) (acknowledging an implicit ruling on an oral motion for continuance made at the
beginning of a hearing by simply proceeding with the hearing).
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pursuant to the March 29, 2010 order, the motion does not limit the time period at issue. We
thus overrule Diane’s final issue, and affirm the judgment of the trial court.
Phylis J. Speedlin, Justice
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