Theodore Robert Allen Jr. v. Elizabeth Beistel ( 2010 )

Opinion issued November 10, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00488-CV

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Theodore Robert Allen, Jr., Appellant

V.

Elizabeth Beistel, Appellee

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Case No. 1988-01028

MEMORANDUM OPINION

This appeal follows our reversal and remand of an order terminating withholding of wages for child support arrearages owed by Theodore Robert Allen, Jr.  Allen renewed his motion for termination on remand, and the trial court denied the motion. Allen contends that the trial court erred in (1) allowing the Assistant Attorney General (AAG) to act as witness in testifying to the amount of child support arrearage; (2) granting an arrearage judgment that included accrued interest, attorney’s fees, and costs as part of the arrearage; and (3) failing to respond to his request for findings of fact and conclusions of law.  Finding no error, we affirm.

Background

In 1986, while living in Ohio, Theodore Allen and Elizabeth Beistel divorced. The divorce judgment ordered Allen to pay child support for their two children.  Beistel v. Allen, Nos. 01-06-00246-CV & 01-06-00276-CV, 2007 WL 1559840, at *1 (Tex. App.—Houston [1st Dist.] May 31, 2007, no pet.) (mem. op.).  

It is undisputed that Allen has been in arrears on his child support obligation since it began.  After Allen moved to Texas, Beistel obtained Texas judgments against Allen for payment of child support in 1988, 1994, and 2000.  Id.  The Texas Attorney General issued an administrative writ of withholding to enforce the 2000 judgment.  Id.

In 2005, Allen petitioned the trial court to terminate the wage-withholding orders, contending that he had paid more than the amount due under the judgments.  Id. The trial court granted the petition, and Beistel appealed.  We held that Allen presented legally and factually insufficient evidence to support the finding that he had overpaid child support.  Id. at *5.  We observed that Allen’s calculations did not account for the statutorily required interest rate that applied to the arrearages and ignored the fact that in 2000, when his children reached the age of majority and his continuing support obligation terminated, the entire child support arrearage was consolidated into a single judgment.  Id.  As a result, we reversed the trial court’s orders terminating the writs of withholding and remanded for further proceedings.  Id. at *6.

In a hearing to address the issues on remand, the Attorney General’s office presented evidence that, as of the date of the hearing, Allen owed $29,493.00 in arrearages and accrued interest.  Allen proffered a certified public accountant as an expert witness, who estimated that Allen had overpaid the amount due by $16,669.42.  According to the CPA, he used a 1999 Ohio court order showing a total arrearage of $30,497.80 as the start date for his calculations and Allen’s bank statements showing the deduction of child support proceeds from his checking accounts, then applied a twelve percent interest rate, compounded monthly and accrued to the outstanding balance.  

On cross-examination, the CPA conceded that he was not familiar with either the Texas Family Code provisions addressing the calculation of interest on child support arrearage or the method for calculating interest on a confirmed child support arrearage judgment prescribed by Texas law.  The trial court initially admitted the CPA’s report with the caveat that the report “was not based upon the principles of the Texas Family Code.”  Later, however, the trial court excluded the CPA’s testimony and report.[1] 

The trial court signed a cumulative child support arrearage judgment against Allen in the total amount of $40,213.00.  This judgment includes $29,493.00 child support arrears, attorney’s fees, post-judgment interest, and costs.  The judgment further requires that Allen pay at least $300.00 monthly toward satisfaction of the judgment.

On the same day the trial court signed the judgment, Allen made a written request for findings of fact and conclusions of law.  The trial court did not respond to the request, and Allen timely appealed.

Discussion

I.       Assistant Attorney General as Witness

Allen first contends that the trial court erred denying his request to disqualify the AAG and allowing the AAG to testify about the Attorney General’s office’s documents showing the calculation and amount of Allen’s arrearages.  Allen relies on Texas Rule of Professional Conduct 3.08, which states that “[a] lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client.”  Tex. Disc. R. Prof. Cond. 3.08(a).  Disqualification of an attorney under Rule 3.08(a), however, is appropriate only if the lawyer’s testimony is “necessary to establish an essential fact.”  In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004).  The litigant requesting the disqualification bears the burden to prove that he suffered actual prejudice due to the attorney’s dual role as witness and lawyer.  Id. 

The AAG testified that the government pay records generated by the Attorney General’s office, admitted as a self-authenticating document, dated back to the 2001 administrative writ of withholding, included the amount of interest that had accrued on Allen’s arrearage, and reflected that Allen owed $29,493.00.  Allen neither showed that this testimony was necessary to establish an essential fact nor that he suffered any actual prejudice from it.  In the absence of those showings, we hold that the trial court did not err in allowing AAG to testify.

II.      Propriety of Child Support Arrearage Judgment

Allen next contends that the trial court erred in adding accrued interest, attorney’s fees, and costs to the cumulative arrearage judgment.  We review a trial court’s confirmation of the amount of arrearages owed for an abuse of discretion.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Att’y Gen. of Texas v. Stevens, 84 S.W.3d, 720, 722 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  Nevertheless, a trial court has no discretion in determining what the law is or applying the law to the facts.  In re Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2000) (citing Huie v. DeShazo, 922 S.W.2d 920, 927–28 (Tex. 1996), and Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); see In re Tex. Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642–43 (Tex. 2009).  We thus review de novo the trial court’s interpretation and application of law.  Prudential, 148 S.W.3d at 135.

          A.      Accrued interest

The Texas Family Code provides that interest accrues on unpaid child support.[2]  See Tex. Fam. Code Ann. § 157.265 (Vernon 2008).  According to the statute, that interest becomes part of the child support obligation.  Id. § 157.267 (“Accrued interest is part of the child support obligation and may be enforced by any means provided for the collection of child support.”).  When a trial court confirms an arrearage, it must render one cumulative money judgment which includes the accrued interest on the arrearage.  Id. § 157.263.  It has no authority to “forgive,” reduce, or modify child-support arrearages.  See Tex. Fam. Code Ann. § 157.262(a) (Vernon Supp. 2010).  In determining the amount of accrued interest, the trial court acts as “a mere scrivener” and has no discretion to deviate from the Family Code’s dictates.  In re M.C.R., 55 S.W.3d 104, 109 (Tex. App.—San Antonio 2001, no pet.) (citing Lewis v. Lewis, 853 S.W.2d 850, 854 (Tex. App.—Houston [14th Dist.] 1993, no writ)).

Here, the court found that the principal plus accrued interest on the 2000 judgment, less Allen’s payments in the interim, amounted to $29,493.00 in child support arrears.  This calculation comports with the evidence and the statute.  We hold that the court upheld its statutory obligation as “mere scrivener” in including accrued post-judgment interest on the cumulative arrearage judgment.

B.      Attorney’s fees and costs

Allen contends that the trial court erred when it awarded attorney’s fees and costs as part of the cumulative child support arrearage judgment.  According to Allen, the trial court’s decision wrongly taxes the attorney’s fees and costs as child support. 

The Texas Family Code provides that, “[a] judgment for attorney’s fees and expenses [in a suit affecting the parent-child relationship] may be enforced in the attorney’s name by any means available for the enforcement of a judgment for debt.”  Tex. Fam. Code Ann. § 106.002(b) (Vernon 2008).  In Chapter 157 of the Family Code, though, the Legislature enhanced the trial court’s power to assist in recovery of attorney’s fees and costs in child support enforcement proceedings.  Section 157.167 permits a court to enforce the payment of fees and costs awarded in a child support enforcement proceeding by any means available for the enforcement of child support, including contempt.  Id. § 157.167(a) (Vernon 2008); In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  Attorney’s fees may be combined with past due child support in a cumulative child support enforcement judgment because the law treats them, for enforcement purposes, the same way it treats the child support arrearage.  See Moers, 104 S.W.3d at 611; Tamez v. Tamez, 822 S.W.2d 688, 691 (Tex. App.—Corpus Christi 1991, writ denied). 

Allen misplaces his reliance on section 106.002.  The underlying proceeding is clearly one for enforcement.  Allen challenged the Attorney General’s calculation of the amount he owed under the 2001 child support arrearage judgment, claiming that he had overpaid the amount due under the judgment.  Allen’s motion to terminate wage withholding, in which he contended that he had overpaid the judgment based on a conflicting interpretation, effectively sought to clarify the terms of the judgment.  

Section 157.162 gives the trial court the discretion to award the petitioner costs of court and reasonable attorney’s fees in an enforcement proceeding if the court finds that the respondent is not current in the payment of child support on the date the motion for enforcement was filed.  See Tex. Fam. Code § 157.162(e) (Vernon Supp. 2010).  Allen’s characterization of his most recent motion as one to terminate wage withholding does not alter the fact that he was not current in his child support payments when the motion that culminated in the 2001 judgment was filed.[3]  We hold that the trial court did not abuse its discretion in including attorney’s fees and costs in the cumulative child support arrearage judgment against Allen.

III.    Findings of Fact and Conclusions of Law

Finally, Allen contends that the trial court erred by failing to respond to his request for findings of fact and conclusions of law.  Allen filed his trial court request for findings and conclusions under the Texas Rules of Civil Procedure, not the Family Code.[4]  See Tex. R. Civ. P. 296.  Those rules require the requesting party to file a notice of past due findings of fact and conclusions of law within thirty days of the original request if the trial court fails to timely respond or waive the right to complain about their absence on appeal.  Tex. R. Civ. P. 297; Curtis v. Comm’n for Lawyer Discipline, 20 S.W.3d 227, 234–35 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 682 S.W.2d 254, 255–56 (Tex. 1984)).  Allen never filed a notice of past due findings and conclusions in the trial court.  We thus hold that Allen waived this complaint.

Motions for Sanctions

Beistel has moved for sanctions against Allen, and Allen has moved for sanctions against Beistel and the Attorney General’s Office.  If we determine that an appeal is frivolous, we may award each prevailing party just damages.  Tex. R. App. P. 45; Mailhot v. Mailhot, 124 S.W.3d 775, 778 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  In making this determination, we review the record from the viewpoint of the advocate, and then only impose sanctions if no reasonable grounds exist to believe that the judgment could be reversed. Id.; Bradt v. West, 892 S.W.2d 56, 78 (Tex. App.—Houston [1st Dist.] 1994, writ denied); Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).  To warrant damages, the circumstances should be truly “egregious.”  City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 340 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

We deny Allen’s motion for sanctions.  We also deny Beistel’s request to impose sanctions on Allen, but caution him that pursuit of another appeal of these arrearage issues before this court may warrant their consideration. 

Conclusion

          We affirm the judgment of the trial court.

                                                                   Jane Bland

Panel consists of Justices Keyes, Higley, and Bland.

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[1]               Allen references the CPA’s testimony, which he characterizes in his brief as “uncontroverted” evidence, throughout his brief, but he does not identify any evidentiary sufficiency issue or complain about the exclusion of the evidence, nor does he point to any legal authority to support his assertions.  We hold that Allen waived these issues.  See Tex. R. App. P. 33.1, 38.1.

[2]               In our prior opinion, we noted that Ohio law governed the computation and payment of arrearages and accrual of interest on the arrearages under the Ohio-issued support order. Beistel, 2007 WL 1559840, at *5 (citing Tex. Fam. Code Ann. § 159.604(a)).  When, as here, the trial court later issues an order consolidating arrearages, Texas law applies prospectively to calculate interest on the arrearages.  Tex. Fam. Code Ann. § 159.604(d) (Vernon 2008).

[3]           Allen has not challenged the evidentiary merits of the judgment he appeals, which also finds that he still has not satisfied his child support obligations.

[4]               Section 154.130 of the Family Code requires the trial court, on request, to make findings after issuing an order requiring payment of child support.  See Tex. Fam. Code Ann. §§ 154.130 (Vernon Supp. 2010).  A judgment confirming arrearage does not trigger the statutory requirement.  See Terry v. Terry, 920 S.W.2d 423, 425–26 (Tex. App.—Houston [1st Dist.] 1996, no writ); accord In re J.D.M., 221 S.W.3d 740, 743 (Tex. App—Waco 2007, no pet.). In his opening brief, Allen contended that this section applied to his request for findings of fact and conclusions of law, but in his reply, he states that his request was made solely under the Rules of Civil Procedure and not the Family Code.