Opinion
NO. 02-15-00032-CV
02-16-2017
IN THE INTEREST OF R.R., A CHILD
FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 322-536666-13 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Spanning over three decades and involving four states, the facts of this case present complex child-support-enforcement issues. Appellant and Cross-Appellee Ann Rodriguez McKinnell (Mother) and Appellee and Cross-Appellant James J. Audet, II (Father) both appeal from the trial court's "Final Judgment on Arrears" ordering Father to pay to Mother $64,918.38 in child-support arrearages and interest and $15,605.25 in attorney's fees. We affirm in part and reverse and remand in part.
Background
Mother and Father met in October 1981 when they were freshmen at Regis College in Denver, Colorado, and soon afterward Mother became pregnant. In May 1982, Mother, individually and on her unborn child's behalf, sued Father in Colorado, seeking a declaration of his paternity, pregnancy expenses, and child support. Father was served in Colorado later that month.
In June 1982, Mother moved to Alaska to live with her parents; Father moved to Florida. Their daughter, R.R., was born in Alaska that August.
In February 1983, Mother applied for and received public assistance from the State of Alaska. As a condition of accepting public assistance, Mother assigned her child-support rights to Alaska's Child Support Enforcement Division. When applying for assistance, she notified Alaska of the pending Colorado action, and Alaska required Mother to complete some forms, including an application to establish paternity, in which she indicated that Father lived in Florida.
Back in Colorado, in June 1983, the court signed a default judgment finding that Father was R.R.'s father and ordering him to pay $3,449.62 to Mother for her pregnancy and confinement costs and her attorney's fees. The trial court also ordered Father to pay $450 a month in child support beginning June 1, 1983.
The next year, in July, the State of Alaska sought to enforce the Colorado order by registering it in Florida under the Uniform Reciprocal Enforcement of Support Act (URESA). After a hearing in October 1984, a Florida court entered an order finding that the accumulated child-support arrearage under the Colorado order was $7,650 and modifying the child-support amount to $246 a month starting November 1, 1984. Although Father attended the 1984 hearing, it wasn't until June 2013 that Mother learned that a Florida court had lowered Father's child-support obligation.
This amount was calculated based on the Colorado order, that is, that Father was to pay $450 in monthly child support starting June 1, 1983.
Father paid $48.55 to the Alaska Child Support Enforcement Division in mid-January 1985. In March, that office sent a letter to Father acknowledging his January payment, reminding him that his next $246 payment was due on April 1, 1985, and seeking support arrears of $8,831.45, plus $339.95 in penalties and interest. The State of Alaska continued to attempt to collect child support from Father in Florida.
Father married in August 1985, moved to Texas shortly thereafter, and currently resides here. In May 1987, Mother and R.R. moved from Alaska to Colorado and have lived there ever since.
During the late 1980s and early 1990s, the State of Alaska sent letters to Father and his wife in Texas notifying them that Father owed past-due child support and that the debt was going to be referred to the Internal Revenue Service for collection. During the same time period, Father contacted Alaska by letter and by phone for information related to the amount of arrearages. In December 1988, Alaska wrote to Father to tell him that after conducting an administrative review, "[a]rrears ha[d] been reduced to $6,263.45[,] which represent[ed] only the past public assistance debt due the State of Alaska" and that because Mother was "no longer in the State of Alaska" it could not "pursue her arrears or ongoing support on her behalf."
Beginning in 1989, the State of Alaska tried unsuccessfully under URESA to collect the public-assistance debt. The IRS did, however, seize Father's and his wife's tax refunds for several years, which Alaska then applied to Father's debt.
In January 1996, Father settled his remaining $5,429.75 debt to Alaska for $2,500. In February 1996, Alaska sent a letter to Father stating, "WE HAVE CLOSED YOUR CASE AS PAID IN FULL. WE HAVE BALANCED YOUR CASE AT ZERO." Years later, in June 2002, the State of Alaska confirmed to a mortgage company through which Father had applied for a loan that "[t]he above referenced case was closed February 12, 1996, the obligation was paid in full."
Father had no contact with Mother after she left Colorado in 1982 or with R.R. after she was born. Mother did not know where Father was for most of R.R.'s life, and the last address she had for him was in Florida. R.R. turned eighteen in August 2000. In 2012, she found Father in Texas through an internet search and told her mother.
Mother then registered the 30-year-old Colorado order in Texas in May 2013 and filed a "Notice of Application for Income Withholding For Support (Judicial Writ of Withholding)," alleging that Father owed $1,515,525.21 in child-support arrearages and interest. Of that amount, only $71,341.03 represented arrearages; the rest was interest. In July 2013, Mother registered the 1984 Florida order in Texas. The trial court stayed the registration and enforcement of both orders.
The case was tried to the bench in April 2014. R.R. was then 31 years old and a few weeks away from graduating from medical school. Shortly before trial, Mother had amended her notice of application for income withholding to change her calculations, alleging that as of March 14, 2014, Father owed $1,072,775.40 in child-support arrearages and interest based on an alleged total arrearage of $49,744.81. At trial, Mother stipulated that the Florida order had modified Father's monthly child-support obligation under the Colorado order, but she contended that all other aspects of the Colorado order—a statutory interest rate of 12% compounded monthly and age of emancipation at 19 rather than 18—remained intact. She alleged that as of March 31, 2014, arrearages and interest had grown to $1,085,985.27.
Father asserted that either laches or limitations barred Mother's claims or, alternatively, that his total arrearages, with interest, were only $69,688.51. Father derived that figure—a difference of over $1 million from Mother's calculation—based on the arguments that (1) he owed nothing before February 1996, the date when Alaska notified him that it had closed his case as paid in full; (2) he owed back child support from February 1996 only through R.R.'s 18th (not 19th) birthday under Florida law; and (3) Florida's 10% simple interest rate should be used instead of Colorado's rate of 12% compounded monthly.
The trial court's final judgment found that the Colorado order was not subject to registration in Texas and confirmed registration of the Florida order. The trial court also found that R.R. was emancipated on August 31, 2000, her 18th birthday. The trial court rendered judgment against Father for child-support arrearages and accrued interest in the amount of $64,918.38 as of March 31, 2014. Agreeing with Father's position, the trial court stated that "this amount was determined by applying the interest rate of 10% simple interest to the $246.00 monthly child support [as Ordered from the Florida Order] beginning February 1, 1996 through March 1, 2014." [Brackets in original.] In addition, the trial court ordered that Mother be granted a judicial writ of withholding from Father's earnings, requiring his present and future employers to withhold $450 per month from his earnings. Finally, the trial court rendered judgment against Father for $15,605.25 in attorney's fees and for $573.38 in costs.
The trial court filed findings of fact and conclusions of law. Mother has appealed, and Father has cross-appealed. See Tex. R. App. P. 26.1(a), (d).
Standard of Review
Issues regarding the payment of child support, including confirmation of child-support arrearages as well as awards of attorney's fees, are reviewed under an abuse-of-discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). 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. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). In family-law cases, however, the abuse-of-discretion standard overlaps with the traditional sufficiency standard of review; thus, legal and factual insufficiency are not independent reversible grounds of error but are relevant factors in assessing whether the trial court abused its discretion. Neyland v. Raymond, 324 S.W.3d 646, 649 (Tex. App.—Fort Worth 2010, no pet.).
Accordingly, in determining whether an abuse of discretion has occurred because the evidence is legally or factually insufficient to support the trial court's decision, we engage in a two-pronged inquiry: (1) did the trial court have enough information upon which to exercise its discretion; and (2) did the trial court err in applying its discretion? Id. The applicable sufficiency review comes into play with regard to the first question. Id. at 649-50. Concerning the second question, we determine, based on the elicited evidence, whether the trial court made a reasonable decision. Id. at 650.
A trial court's findings of fact have the same force and dignity as a jury's answers to jury questions and are reviewable for legal and factual sufficiency of the evidence to support them by the same standards. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see also MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009). When the appellate record contains a reporter's record, findings of fact on disputed issues are not conclusive and may be challenged for evidentiary sufficiency. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Allison v. Conglomerate Gas II, L.P., No. 02-13-00205-CV, 2015 WL 5106448, at *6 (Tex. App.—Fort Worth Aug. 31, 2015, no pet.) (mem. op.). We defer to unchallenged findings of fact that are supported by some evidence. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014).
We may sustain a legal-sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining whether there is legally sufficient evidence to support a particular finding, we must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all the pertinent record evidence, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the finding should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
We review the trial court's legal conclusions de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We may review conclusions of law to determine their correctness based on the facts, but we will not reverse because of an erroneous conclusion if the trial court nonetheless rendered the proper judgment. City of Austin v. Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012) (citing BMC Software, 83 S.W.3d at 794); H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 513 (Tex. App.—Fort Worth 2012, no pet.). That is, because a trial court's legal conclusions do not bind us, we will not reverse a trial court's judgment based on an incorrect conclusion of law when the controlling findings of fact support the judgment on some correct legal theory. Wise Elec. Coop., Inc. v. Am. Hat Co., 476 S.W.3d 671, 679 (Tex. App.—Fort Worth 2015, no pet.).
Uniform Interstate Family Support Act and
Full Faith and Credit for Child Support Orders Act
The Uniform Interstate Family Support Act (UIFSA) relates to the interstate enforcement of child support and contains procedural rules for establishing, modifying, and enforcing child-support obligations. Office of Attorney Gen. of Tex. v. Long, 401 S.W.3d 911, 912-13 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see Tex. Fam. Code Ann. §§ 159.001-.901 (West 2014 & Supp. 2016). Under UIFSA, a support order or income-withholding order issued in another state may be registered in this state for enforcement. Tex. Fam. Code Ann. § 159.601. Such an order is registered when it is filed in the registering tribunal of this state. Id. § 159.603(a). Once registered, such a support order is enforceable in the same manner and subject to the same procedures as an order issued by a Texas tribunal. Id. § 159.603(b).
Various sections of chapter 159 of the family code were amended after Mother started this proceeding in May 2013, and those amendments apply only to proceedings commenced after July 1, 2015. See Act of May 20, 2015, 84th Leg., R.S., ch. 368, secs. 1-62, 2015 Tex. Sess. Law Serv. 1557, 1557-78 (West) (codified at Tex. Fam. Code Ann. §§ 159.001-.901). Because no substantive differences between the former and current sections of chapter 159 affect this case, for simplicity we will refer to the current version throughout the opinion.
Each state is required to adopt UIFSA. 42 U.S.C.A. § 666(f) (West Supp. 2016). In addition, the Full Faith and Credit for Child Support Orders Act ("FFCCSOA") requires states to give full faith and credit to and to enforce child- support orders from other states. 28 U.S.C.A. § 1738B (West 2006 & Supp. 2016).
The Controlling Order
Mother argues in her second issue that the trial court abused its discretion by refusing to register the Colorado order as a "controlling order" under family code section 159.207 in addition to the Florida order because both orders control for different time periods. The trial court chose Florida's as the controlling order.
Mother states that "the UIFSA road map controls this case." UIFSA rules were designed to "maintain a 'one-order-at-a-time world,' ensuring that only a single controlling support order exists and is enforced consistently among the states." Long, 401 S.W.3d at 913. (quoting Unif. Interstate Family Support Act § 207 cmt. (Unif. Law Comm'n 2008), reprinted in Joan Foote Jenkins & Randall B. Wilhite, O'Connor's Family Code Plus, 658 (2015)). "UIFSA achieves its one-order-at-a time system through the recognition of 'continuing, exclusive jurisdiction.'" Id. (citing Tex. Fam. Code Ann. § 155.001 (West Supp. 2016), §§ 159.205-.206); see also Tex. Fam. Code Ann. § 159.207 ("Determination of Controlling Child Support Order").
But a court need make a controlling-order determination only if there are prospective child-support obligations. See New Hanover Cty. v. Kilbourne, 578 S.E.2d 610, 614 (N.C. Ct. App. 2003) (interpreting UIFSA's one-order rule and stating that "[i]f the plaintiff is seeking only payment of arrearages because there is no prospective child support obligation (as when the child has 'aged out'), then the court need not consider which of the valid URESA orders is controlling"); see also Lundahl v. Telford, 116 Cal. App. 4th 305, 316 (Cal. Ct. App. 2004) ("The controlling order [under UIFSA] is prospective only."). The Uniform Law Commission's comments to section 159.207 include these:
This section provides a relatively simple procedure to identify a single viable order that will be entitled to prospective enforcement in every state.Unif. Interstate Family Support Act § 207 cmt. (Unif. Law Comm'n 2008) (emphases added), reprinted in Jenkins & Wilhite, supra, at 659. Here, no prospective child-support obligations can exist because R.R. is emancipated. The trial court thus did not need to decide which state had issued a "controlling order," and we therefore overrule this portion of Mother's second issue.
. . . .
Subsection (b) establishes the priority scheme for recognition and prospective enforcement of a single order among existing multiple orders regarding the same obligor, obligee, and child. A tribunal requested to sort out the multiple orders and determine which one will be prospectively controlling of future payments must have personal jurisdiction over the litigants in order to ensure that its decision is binding on all concerned.
Registration of Orders for Enforcement
In the remainder of her second issue, Mother argues that the trial court erred by not registering the Colorado order because it determines both the duration of Father's child-support payments and the computation and accrual of interest on arrearages.
The nonregistering party seeking to contest the validity or enforcement of a registered support order may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages under section 159.607. Tex. Fam. Code Ann. § 159.606(a). A party contesting the validity or enforcement of a registered order or seeking to vacate the registration may assume the burden of proving one of several statutory defenses, including that the order has been "vacated, suspended, or modified by a later order." Id. § 159.607(a)(3).
Here, Father pleaded the defense of modification. The trial court concluded—and Mother concedes—that the Florida order modified Father's monthly child-support obligation by reducing it from $450 to $246 per month. Because the Florida order modified the Colorado order, we cannot say the trial court abused its discretion by refusing to register the Colorado order. See id. § 159.607(a)(3), (c).
Mother also complains that by not recognizing the Colorado order, the trial court incorrectly "wiped out" the $3,449.62 judgment against Father for her pregnancy and confinement costs and her attorney's fees contained in the Colorado order. She asserts that UIFSA and FFCCSOA were not meant to "wipe out prior child support judgments not addressed in subsequent orders," which "flies in the face of the Bradley Amendment, the federal law that require[s] each state to enact laws stating that all child support payments not timely made are judgments by operation of law entitled to full faith and credit across state lines." See 42 U.S.C.A. § 666(a)(9) (West 2011). But the $3,449.62 Colorado judgment was for Mother's pregnancy and confinement costs and her attorney's fees; it was a not child-support order. See Tex. Fam. Code Ann. § 159.102(2) ("'Child support order' means a support order for a child, including a child who has attained the age of majority under the law of the issuing state or foreign country."). Therefore, we overrule this aspect of Mother's complaint regarding the trial court's failure to register the Colorado order.
The more important questions are whether the Florida modification altered Father's obligation to pay child support until age 19 (as Colorado law provides) and which state's interest-rate statutes govern. Mother argues that under section 159.604(a)(1) and (a)(2), Colorado law controls both questions.
Those UIFSA sections as they appear in the Texas Family Code provide that "the law of the issuing state . . . governs: (1) the nature, extent, amount, and duration of current payments under a registered support order; [and] (2) the computation and payment of arrearages and accrual of interest on the arrearages under the support order." Id. § 159.604(a)(1), (a)(2). "'Issuing state' means the state in which a tribunal issues a support order or a judgment determining parentage of a child." Id. § 159.102(13). In this case, the "issuing state" is Colorado because it was there in which a court issued "a support order or a judgment determining" R.R.'s parentage. See id.; see also Fitzhugh v. Dupree, No. 1388-97-1, 1997 WL 695592, at *1-2 (Va. Ct. App. Nov. 10, 1997) (mem. op., not designated for publication) (holding that where California issued original child-support order; New York, where father resided, modified the order nine years later; and mother filed enforcement action in Virginia over 20 years later, California remained the "issuing state" under UIFSA, and thus California law should be applied).
"'Tribunal' means a court . . . authorized to establish, enforce, or modify support orders or to determine parentage of a child." Tex. Fam. Code Ann. § 159.102(29).
The version of section 159.102(13) in effect when Mother commenced this action defined "issuing state" as "the state in which a tribunal issues a support order or renders a judgment determining parentage." Act of May 28, 2003, 78th Leg., R.S., ch. 1247, § 159.102(9), sec. 3, 2003 Tex. Gen. Laws 3521, 3522 (amended 2015) (current version at Tex. Fam. Code Ann. § 159.102(13)). This does not affect our determination that Colorado is the "issuing state" here.
Because no "current payments" are involved due to R.R.'s emancipation under either Florida or Colorado law, section 159.604(a)(1) does not apply here. See Tex. Fam. Code Ann. § 159.604(a)(1). But section 159.604(a)(2) does apply, and it mandates that Colorado law applies to "the computation and payment of arrearages and accrual of interest on the arrearages under the support order" in this case. See id. § 159.604(a)(2). This calculation would require the trial court to use Colorado's age of emancipation and its interest rate when determining Father's arrearages under the Florida order, which included a finding of accumulated child-support arrearages under the Colorado order of $7,650. The trial court thus abused its discretion by applying the Florida interest rate (10% simple interest) and age of emancipation (18) when calculating the arrearages. We conclude that this error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). Accordingly, we sustain this portion of Mother's second issue.
Laches and Limitations
In his first issue, Father argues that laches or, alternatively, limitations bar Mother's claim for child-support arrearages. The trial court found and concluded that laches did not apply and that "[n]o limitations apply in this case, including but not limit[ed] to" those limitations found in family code section 157.005. Tex. Fam. Code Ann. § 157.005 (West 2014).
Under Florida law, proceedings to enforce child-support orders are equitable in nature and can therefore be barred by laches. See, e.g., Frazier v. Frazier, 616 So.2d 575, 579 (Fla. Dist. Ct. App. 1993). Father argues that laches bar Mother's claim under section 159.604(a)(1) and (a)(3), which are explicitly tied to the law of the issuing state, which Father contends is Florida. Tex. Fam. Code Ann. § 159.604(a)(1), (a)(3). But as we explained above, Colorado, not Florida is the "issuing state," and thus Florida law does not apply. Accordingly, Mother's claim is not barred by laches under Florida law.
The parties have not briefed and did not present evidence or analysis below concerning Colorado's view of laches in connection with child-support arrearages and accrued interest. Because we are remanding to the trial court for a determination of the total amount of arrearages and interest, we leave it to the trial court's sound discretion whether to allow the parties to further develop this issue. Father's live pleading, which included laches as an affirmative defense, did not limit that defense to Florida law.
Father argues in the alternative that Mother's claim is barred by limitations. See id. § 159.607(a)(7) (providing that the statute of limitation under section 159.604 is a defense available to a party contesting the validity or enforcement of a registered support order). Section 159.604(b) provides that "[i]n a proceeding for arrears under a registered support order, the statute of limitation of this state, or of the issuing state . . . , whichever is longer, applies." Id. § 159.604(b).
Father first urges that "[t]his court should treat Florida's laches position as a functional limitations provision for UIFSA purposes." Again, Florida law does not apply here because Florida was not the "issuing state." Moreover, laches and limitations are not equivalent defenses. See, e.g., Frazier, 616 So.2d at 579 ("As a general rule, proceedings to enforce periodic alimony and child support orders are equitable proceedings that are not barred by a statute of limitations in Florida.").
Next, Father argues that limitations bar Mother's claims under both Texas and Colorado law. Under section 159.604(b), in a proceeding for arrears, the longer limitations period applies. See Tex. Fam. Code Ann. § 159.604(b). Because it is dispositive of this issue, we will discuss Texas law first.
The Texas 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." Id. § 157.261(a) (West 2014). Father argues that section 157.005(b) bars Mother's claims because she did not file her petition before August 31, 2010, which was ten years after R.R. became an adult. Section 157.005(b) states:
The court retains jurisdiction to confirm the total amount of child support arrearages and render a cumulative money judgment for past-due child support, as provided by Section 157.263, if a motion for enforcement requesting a cumulative money judgment is filed not later than the 10th anniversary after the date:
Id. § 157.005(b).(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.
Under this provision's "unambiguous language," it applies "only to a trial court's confirmation of arrearages and rendition of a cumulative money judgment under section 157.263." Isaacs v. Isaacs, 338 S.W.3d 184, 187 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). No doubt because of this ten-year deadline, Mother did not seek, nor did the trial court render, a "cumulative money judgment" for past-due child support under section 157.263. See Tex. Fam. Code Ann. § 157.263 (West 2014) (authorizing a trial court to confirm the amount of arrearages and render a cumulative money judgment). Instead, Mother sought and the trial court ordered that she be granted a judicial writ of income withholding, which is authorized under chapter 158 of the family code.
Mother also filed a notice-of-child-support lien alleging $1,515,525.21 in child-support arrearages as of May 15, 2013. See Tex. Fam. Code Ann. § 157.313 (West 2014). In its final judgment, the trial court dissolved any existing liens, and Mother does not challenge this part of the trial court's judgment on appeal. We therefore do not discuss whether limitations bar that remedy.
Section 158.102, entitled "Time Limitations," has "no express deadline on the trial court's jurisdiction to enter an order that provides for income withholding and authorizes the entry of such an order 'until all current support and child support arrearages, interest, and any applicable fees and costs have been paid.'" Packard v. Davis, No. 2-08-022-CV, 2008 WL 4925998, at *2 (Tex. App.—Fort Worth Nov. 13, 2008, no pet.) (mem. op.) (quoting Tex. Fam. Code Ann. § 158.102 (West 2014)); see Tex. Fam. Code Ann. § 158.102. And several courts, including this one, have held that section 157.005(b)'s ten-year time limit does not apply to writs of withholding. See, e.g., In re K.R.M., No. 11-11-00312-CV, 2012 WL 1143800, at *3 (Tex. App.—Eastland Apr. 5, 2012, no pet.) (mem. op.); Isaacs, 338 S.W.3d at 187-88; Overton v. Overton, No. 14-09-00865-CV, 2011 WL 398046, at *3-4 (Tex. App.—Houston [14th Dist.] Feb. 8, 2011, pet. denied) (mem. op.); Packard, 2008 WL 4925998, at *2.
Because Texas law imposes no time limit on obtaining a judicial writ of income withholding, we need not discuss limitations under Colorado law. See Tex. Fam. Code Ann. § 159.604(b). Accordingly, Father's limitations defense does not bar registration of the Florida order or Mother's claim for child-support arrearages.
Additionally, Texas must "apply the procedures and remedies of this state to enforce current support and collect arrears and interest due on a support order of another state . . . registered in this state." Tex. Fam. Code Ann. § 159.604(c). A judicial writ of income withholding is one of those remedies. Isaacs, 338 S.W.3d at 187 (listing various remedies for failure to pay child support, including judicial writs of income withholding).
We overrule Father's first issue.
The Trial Court's Calculation of Arrearages
In her first issue, Mother argues that the trial court abused its discretion when it set the child-support arrearages at $64,918.38 as of March 31, 2014, because there was no evidence that the arrearages were zero as of February 12, 1996—the date Father settled with the State of Alaska—and because Alaska did not adjudicate the child-support arrearages owed to Mother.
The trial court filed the following findings and conclusions related to this issue:
I. FINDINGS OF FACT
. . . .
10. [Mother] assigned all of her legal rights, title, and interests in all child support and arrearages and the collection of it to the State of Alaska and its Child Support Enforcement Division ("State of Alaska").
11. The State of Alaska had the right to be reimbursed from [Father] to payments made to [Mother].
12. The State of Alaska acted as an agent on behalf of [Mother] to collect child support from [Father].
. . . .
21. The State of Alaska approached [Father] to negotiate child support and child support arrearage payments regarding [Mother] and the child and . . . [Father] openly negotiated in good faith with the State of Alaska on child support.
22. The State of Alaska, while representing [Mother] for the benefit of the child, negotiated a final settlement of child support with [Father] beginning in 1995.
23. On February 12, 1996 the State of Alaska reached a settlement with [Father] for an arrearage balance as of January 1, 1996 in the amount of $5,429.75. The Court finds that [Father] paid $2,500.00 directly to the State of Alaska to settle all then outstanding child support obligations pursuant to his negotiations with the State of Alaska and that the State of Alaska settled the case, noted it was "paid in full," and closed the file.
24. The State of Alaska, in consideration of [Father]'s settlement payment to pay off child support obligations, zeroed out child support obligations and closed the case on February 12, 1996.
25. The State of Alaska received a final, bargained for payment for all past due child support from [Father] in February 1996, and sent him an acknowledgment stating he had paid in full.
26. The agreed settlement between [Father] and the State of Alaska contemplated all past due child support. Therefore any and all monies and arrearage under first the Colorado Order, which was fully modified in Florida, and enforced through the State of Alaska for numerous years, with [Father] participating from Texas—all child support arrearage and obligation, at least to February 12, 1996—were paid in full and any past due obligation was settled and zeroed, and there was no left over or outstanding child support arrearage as of February 12, 1996. The Court finds that through an agreed settlement, the father paid all amounts due and owing up through February 1996, and the State of Alaska reaffirmed such in 2002.
. . . .
30. The State of Alaska did not have and did not forward any other information (they did not report to [Father] the name change to [Mother], or give a forwarding address). Alaska restated that the child support obligation was paid in full.
. . . .
32. The last communication (until notice of a lawsuit in this instant case in the Spring of 2013) of any sort for any reason, including but not limited to the collection of child support by [Mother] or any agent, state, law firm, investigator, or agency including IRS or other federal agency on [Mother]'s or the child's behalf regarding [Father] in general or child support obligation in particular, was February 12, 1996, when Alaska, as an agent for [Mother], settled child support matters with [Father].
. . . .
38. In 2002 (approximately 2 years after the emancipation of the child and over 10 years from the beginning of any actions by [Mother] against [Father]), [Father] purchased a home in East Parker County. A comprehensive credit and background check was conducted to qualifying for a loan and closing on this home by the mortgage lender. The State of Alaska re-verified there was no child support obligation, lien, or any other debt existed and that [Father] had paid off his child support in full in February 1996. No other State or Credit Reporting service indicated a child support obligation or debt owed to [Mother] or anyone else or agency.
39. Due in large part to the passage of decades, both the State of Florida and Alaska admit they have destroyed or lost almost all records related to this matter.
. . . .
41. There are no written or electronic records from 1996-2013 (that any reasonable person would rely upon) that demonstrated to [Father], his creditors, or anyone else interested or reasonable person that he still owed child support.
42. The February 12, 1996 settlement, zeroing of all arrearages, and closing of the matter by the State of Alaska was reasonable.
43. As of February 12, 1996, [Father] owed zero past due child support or other child support arrearage. Because [Father] owed zero dollars as of February 12, 1996, any and all arrearages—including but not limited to Colorado ordered arrearages—were all zeroed and accounted for in the negotiated settlement between the State of Alaska and [Father].
. . . .
Any Finding of Fact, or any portion thereof, that should [be] more appropriately or that should simultaneously be identified as a Conclusion of Law is hereby adopted as a Conclusion of Law.
II. CONCLUSIONS OF LAW
. . . .
64. [Mother] is granted and rendered a judgment . . . for child-support arrearages, including accrued interest against [Father], in the total amount of $64,918.38. The $64,918.38 award is determined by applying the interest rate of 10% simple interest to the $246.00 monthly child support, as Ordered from the Florida Order, beginning February 1, 1996 through March 1, 2014.
The evidence at trial showed that as a condition of accepting public assistance, Mother assigned to Alaska's Child Support Enforcement Division "any and all right, title and interest in any support obligation owed to or for myself and/or any other family member whether established by court order . . . including all such amounts or rights which have accrued at the time of assignment." And, as discussed earlier, there was evidence that the State of Alaska attempted to enforce the Colorado order and the Florida order on Mother's behalf.
According to a November 7, 1988 letter to Father from the Alaska Child Support Enforcement Division, Father had contacted that office several days earlier regarding his objection to the division's "attaching [his] federal tax return." The enforcement division then scheduled an administrative review at which Father would be "given the opportunity to present evidence to show why [he] d[id] not owe the amount of arrearages stated in [his] Notice of Offset of Federal Tax Refund dated September 30, 1988." That offset notice reflected that Father owed $18,071 in arrearages.
The enforcement division held its review the next month, considered Father's payment history and public-assistance grant records, and reduced Father's arrears to $6,263.45, "which represent[ed] only the past public assistance debt due the State of Alaska." In the letter informing Father of the arrearage reduction, the enforcement division stated that it could no longer pursue arrears or ongoing support on Mother's behalf because she no longer lived in Alaska.
Several years later, in January 1996, Father paid Alaska $2,500 in full settlement of the $5,429.75 he still owed that state. Alaska wrote Father in February 1996 stating, "WE HAVE CLOSED YOUR CASE AS PAID IN FULL. WE HAVE BALANCED YOUR CASE AT ZERO." Consistent with that notice, six years later the State of Alaska confirmed to a mortgage company through which Father was attempting to obtain a loan that "[t]he above referenced case was closed February 12, 1996, the obligation was paid in full."
Father testified that based upon his communications with the State of Alaska, he believed that his child-support debt up until February 1996 had been "zeroed out." The trial court agreed with Father's conclusion. But the evidence shows that in 1988, Alaska was seeking to collect only its public-assistance debt and was no longer pursuing child-support arrears or ongoing support on Mother's behalf. Thus, its 1996 settlement with Father was only for the public-assistance debt still owed to the State of Alaska. The trial court therefore erred by finding and concluding that the child-support arrearages were zero as of February 12, 1996. We conclude that this error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). We sustain Mother's first issue.
Attorney's Fees
Mother's third issue and Father's second issue challenge the trial court's attorney's-fee award, which gave Mother a judgment for $15,605.25 in attorney's fees. The trial court denied (1) Mother's request for attorney's fees for services rendered by an attorney whom Mother's San Antonio lawyer hired as local counsel, (2) Mother's request for attorney's fees in the event Father files for bankruptcy, and (3) Mother's request for appellate attorney's fees. Mother argues that the trial court abused its discretion by denying these requests. For his part, Father argues that the trial court erred by awarding Mother attorney's fees at all because they are not available under section 157.167—the statute on which Mother relies—in either an action to register and enforce a foreign order under chapter 159 or for an application for a judicial writ of income withholding under chapter 158.
The party seeking to recover attorney's fees has the burden of proof. In re A.L.S., 338 S.W.3d 59, 69 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). The reasonableness of attorney's fees is a fact question to be determined by the factfinder and must be supported by competent evidence. Tull v. Tull, 159 S.W.3d 758, 760 (Tex. App.—Dallas 2005, no pet.). To support a request for reasonable attorney's fees, testimony should be given regarding the hours spent on the case, the nature of preparation, the complexity of the case, the experience of the attorney, and the prevailing hourly rates. Hardin v. Hardin, 161 S.W.3d 14, 24 (Tex. App.—Houston [14th Dist.] 2004, no pet.). The trial court has broad discretion in awarding attorney's fees, particularly in child-support cases. See In re A.S.G., 345 S.W.3d 443, 451 (Tex. App.—San Antonio 2011, no pet.); Beck v. Walker, 154 S.W.3d 895, 907 (Tex. App.—Dallas 2005, no pet.).
Because Father's second issue involves the threshold matter of whether an attorney's-fee award is permitted in this case, we address this issue first. Section 157.167(a) provides that "[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 attorney's fees and court costs in addition to the arrearages." Tex. Fam. Code Ann. § 157.167(a) (West 2014). Father suggests that this section is limited to enforcement actions seeking a cumulative money judgment under chapter 157, and that because Mother did not seek or obtain such a judgment, she is not entitled to attorney's fees under that section.
We need not decide whether section 157.167(a) is so limited because other family-code provisions permit an award of attorney's fees in this case. Family code section 106.002(a) broadly authorizes a trial court to award reasonable attorney's fees and expenses "[i]n a suit under this title." Id. § 106.002(a) (West 2014). "This title" is title 5 of the family code, which includes chapters 157 ("Enforcement"), 158 ("Withholding from Earnings for Child Support"), and 159 ("Uniform Interstate Family Support Act"). Section 159.313 also authorizes an attorney's-fee award: "[i]f an obligee prevails, a responding tribunal of this state may assess against an obligor filing fees, reasonable attorney's fees, [and] other costs . . . ." Id. § 159.313. The trial court did not err by awarding attorney's fees. We therefore overrule Father's second issue.
Mother argues that the trial court's award was too low because it was required to award fees for local counsel's services under section 157.167(a), and because Father failed to present evidence that those fees were not reasonable and necessary. Assuming without conceding that section 157.167(a) required the trial court to award local counsel's fees to Mother, we cannot say that the trial court abused its discretion based on the evidence presented. That attorney testified that he had practiced family law for 39 years, that he worked about 14 or 15 hours on the case, that his hourly rate was $500, and that his hourly rate was reasonable and necessary for Tarrant County attorneys of similar skill level and expertise. His curriculum vitae was admitted into evidence. But neither local counsel nor Mother's trial counsel offered any testimony about the nature of the services provided, and his billing records were not offered or admitted in evidence. Additionally, Mother's fee agreement with her trial counsel stated that "[i]t may be necessary for us to retain additional attorneys to assist with your case at no cost to you," and local counsel testified that Mother's trial counsel was supposed to pay him. [Underscoring in original.] Based on the evidence, the trial court could have concluded that local counsel's fees were not reasonable. See id. § 157.167(a). We therefore cannot say that the trial court abused its discretion by failing to award those fees to Mother.
But cf. Granado v. Meza, 360 S.W.3d 613, 619 (Tex. App.—San Antonio 2011) ("[N]othing in subchapter D of chapter 158 provides that a trial court may or must award attorney's fees for filing a notice of application for judicial writ of withholding."), rev'd on other grounds, 398 S.W.3d 193, 193 (Tex. 2013).
Next, Mother argues that the trial court abused its discretion by not awarding her attorney's fees in the event Father files for bankruptcy. Mother's trial attorney testified that $7,500 would be reasonable and necessary attorney's fees in that circumstance, and Mother points out that such an award was "specifically approved" by the court in Taylor v. Speck, 308 S.W.3d 81, 88 (Tex. App.—San Antonio 2010, no pet.). The Taylor court stated that an attorney's-fee award in the mother's favor that was conditioned on the father's filing for bankruptcy was akin to a conditional award of attorney's fees in the event of success on appeal, or in the event of a successful defense on appeal, both of which are allowed in Texas. Id. The court held that because section 157.167 mandated an attorney's-fee award in that case and because Texas recognizes conditional awards of appellate attorney's fees, the trial court did not abuse its discretion by awarding additional fees conditioned on the father's filing for bankruptcy. Id. The court did not hold, however, that such an award was required. See id. We therefore cannot say the trial court abused its discretion by not awarding conditional bankruptcy fees to Mother.
Finally, Mother argues that the trial court erred by not awarding her conditional appellate attorney's fees because such fees are mandatory in this case under section 157.167. Mother's attorney testified that $10,000 in attorney's fees would be reasonable and necessary if Father appealed to the court of appeals, an additional $10,000 in attorney's fees would be reasonable and necessary if Father filed a petition for review with the supreme court, and an additional $10,000 in attorney's fees would be reasonable and necessary if the supreme court were to request briefing.
Citing several cases, Mother asserts that "[n]umerous Texas courts have interpreted the language authorizing either a permissive or a mandatory award of attorney's fees to include attorney's fees on appeal." See, e.g., Int'l Sec. Life Ins. v. Spray, 468 S.W.2d 347, 349 (Tex. 1971) (concluding former insurance code article 3.62 providing for the recovery of "reasonable attorney fees for the prosecution and collection of" a loss under that article included appellate attorney's fees); DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160, 198-99 (Tex. App.—Fort Worth 2012, no pet.) (holding that if an award of trial attorney's fees is mandatory under civil practice and remedies code section 38.001, an award of appellate attorney's fees is mandatory); Mecey v. Seggern, 596 S.W.2d 924, 928 n.1, 930 (Tex. Civ. App.—Austin 1980, writ ref'd n.r.e.) (relying on Spray and the language in former usury statute providing for recovery of "reasonable attorney fees fixed by the court" to hold "that there is provision in the usury statutes for appellate attorney's fees").
Mother does not cite, nor have we found, any authority requiring a trial court to award appellate attorney's fees under family code section 157.167 or any other section of the family code. But see In re W.R.B., No. 05-12-00776-CV, 2014 WL 1008222, at *7 (Tex. App.—Dallas Feb. 20, 2014, pet. denied) (mem. op.) (holding trial court did not abuse its discretion by failing to award mother appellate attorney's fees when she was awarded trial attorney's fees under section 157.167 because "trial court could have concluded a $10,000 award of appellate attorney's fees was not reasonable in light of the fact [mother] recovered $11,777.92 of her $118,296.92 claim"). Accordingly, we conclude the trial court did not abuse its discretion by failing to award Mother appellate attorney's fees, and we overrule Mother's third issue.
Conclusion
Having sustained Mother's first issue and part of her second issue, we reverse the portion of the trial court's "Final Judgment on Arrears" ordering Father to pay to Mother $64,918.38 in child-support arrearages and interest, and we remand this case to the trial court to apply Colorado law in determining the amount of child-support arrearages, including accrued interest, that Father must pay Mother. Having overruled the remainder of Mother's issues and all of Father's issues, we affirm the remainder of the trial court's judgment.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: MEIER and KERR, JJ.; and KERRY FITZGERALD (Senior Justice, Retired, Sitting by Assignment). DELIVERED: February 16, 2017