The trial court awarded $78,164.02 in child support arrearages from a 1972 divorce in favor of the child support obligee against the child support obligor.  The child support obligee sought child support enforcement and child support collection by a writ of withholding.  The child support obligor did not file his contest to the writ of  withholding within 10 days, as required by statute.  Teh appellae court held by not timely filing his motion to stay, the child support obligor has not preserved his right to assert defenses to the child support arrears.

The child support obligor argues the child support obligee cannot pursue child support enforcement or child support collection because her claim is dormant.  The appellate court disagreed, holding formancy doesn’t apply to unpaid child support.

ALLEN COBB, Appellant v. CATHIE GORDY, Appellee

NO. 01-09-00764-CV

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

2011 Tex. App. LEXIS 946

February 10, 2011, Opinion Issued

PRIOR HISTORY: [*1]
On Appeal from the 308th District Court, Harris County, Texas. Trial Court Case No. 917,087.

JUDGES: Panel consists of Chief Justice Radack and Justices Alcala and Bland.

OPINION BY: Sherry Radack

OPINION

MEMORANDUM OPINION
Appellant, Allen Cobb, appeals a trial court order that determines his child-support arrearages as a matter of law, orders that appellee, Cathie Gordy, “is entitled to the issuance of child-support liens, levies, and writs of withholding as remedies for the collection of unpaid child support,” and orders a judicial writ of withholdings from Cobb’s earnings that is binding on “his present employer and all subsequent employers.” Specifically, Cobb contends that (1) the trial court lacked jurisdiction, (2) there is legally and factually insufficient evidence to support the trial court’s judgment, and (3) he was denied due process. We affirm.

BACKGROUND
In 1972, Cobb and Gordy were divorced in the 308th District Court of Harris County. The divorce decree ordered Cobb to pay $50 per month to support their minor child. On April 28, 2009, Gordy filed a “Notice of Application for Judicial Writ of Withholding” in the 308th District Court. In the notice, Gordy alleged $78,164.02 in unpaid child support. The  [*2] notice was mailed to Cobb by regular first class mail and by certified mail, return receipt requested, and he received it on May 6, 2009.
On July 7, 2009, Cobb filed a “Motion to Stay Issuance and Delivery of Judicial Writ of Withholding and Request for Hearing and to Terminate Wage Withholding.” On July 21, 2009, Gordy responded to Cobb’s motion to stay, arguing that it was both untimely and unverified. On July 29, 2009, the trial court held a hearing, after which it signed the order complained of in this appeal. Although the order states that “a record of the argument and evidence was made” at the hearing, Cobb did not request findings of fact and conclusions of law or a reporter’s record from the hearing.

JURISDICTION
In his first issue on appeal, Cobb contends that the trial court lacked jurisdiction because (1) the pleadings are deficient to invoke the trial court’s jurisdiction to establish the amount of arrears, and (2) the judgment being enforced is dormant. We address each argument respectively.

Defective Pleadings
Cobb argues that Gordy’s pleadings are deficient because, under section 157.002 of the Family Code, a motion to enforce child support must include (1) the provision  [*3] of the child support order allegedly violated, (2) the manner of the alleged noncompliance, (3) the relief requested by the movant, and (4) the signature of the movant or the movant’s attorney. See Tex. Fam. Code Ann. § 157.002(a) (Vernon 2008). The motion to enforce should also include the amount of child support owed, the amount paid, and the amount of arrearages. See Tex. Fam. Code Ann. § 157.002(b) (Vernon 2008).
Gordy argues that section 157.002 of the Family Code is not applicable because she did not file a motion to enforce; she filed a request for a judicial writ of withholding under Chapter 158 of the Family Code. We agree.
Chapter 158 of the Family Code contains a procedure whereby an obligee can obtain a judicial writ of withholding from the court of continuing jurisdiction after an obligor is delinquent in making child support payments in an amount equal to or greater than the total support due for one month, or when income withholding was not ordered at the time child support was ordered. In re Digges, 981 S.W.2d 445, 446 (Tex. App.–San Antonio 1998, no pet.); Tex. Fam. Code Ann. § 158.301(a) (Vernon 2008). The contents required by a notice of application for judicial writ  [*4] of withholding are set forth in section 158.301 of the Family Code, which provides

The notice of application for judicial writ of withholding shall be verified and:

(1) state the amount of monthly support due, including medical support, the amount of arrearages or anticipated arrearages, including accrued interest, and the amount of wages that will be withheld in accordance with a judicial writ of withholding;
(2) state that the withholding applies to each current or subsequent employer or period of employment;
(3) state that if the obligor does not contest the withholding within 10 days after the date of receipt of the notice, the obligor’s employer will be notified to begin the withholding;
(4) describe the procedures for contesting the issuance and delivery of a writ of withholding;
(5) state that if the obligor contests the withholding, the obligor will be afforded an opportunity for a hearing by the court not later than the 30th day after the date of receipt of the notice or contest;
(6) state that the sole ground for successfully contesting the issuance of a writ of withholding is a dispute concerning the identity of the obligor or the existence or amount of the arrearages, including  [*5] accrued interest;
(7) describe the actions that may be taken if the obligor contests the notice of application for judicial writ of withholding, including the procedure for suspending issuance of a writ of withholding; and
(8) include with the notice a suggested form for the motion to stay issuance and delivery of the judicial writ of withholding that the obligor may file with the clerk of the appropriate court.

Tex. Fam. Code Ann. § 158.302 (Vernon 2008). Gordy’s Notice of Application for Judicial Writ of Withholding complies with these requirements.
Dormancy
Cobb also argues that the trial court lacked jurisdiction because the underlying judgments, i.e., child support payments, were dormant. Specifically, Cobb argues that a child support obligation becomes a final judgment when not paid, see Tex. Fam. Code Ann. § 157.261(a), thus, the last child support payment obligation became a final judgment when the minor child turned 18 in 1988. Thus, Cobb argues, the final judgment was dormant under section 34.001 of the Civil Practices and Remedies Code and will not support Gordy’s request for a writ of judicial withholding. See Tex. Civ. Prac. & Rem. Code Ann. § 34.001(a) (Vernon Supp. 2010)  [*6] (stating if writ of execution not issued within 10 years after rendition of a judgment, judgment is dormant). Until recently, this was a disputed issue in the courts of appeals.
In In re Kuykendall, 957 S.W.2d 907, 910 (Tex. App.–Texarkana 1997, no pet.) the Texarkana Court of Appeals held that “although labeled as ‘final judgments’ in the Family Code, the individual monthly arrearages are not final judgments to which the dormancy statute should be applied.” Several other courts of appeals have agreed. See In re E.C.M., 225 S.W.3d 11, 13 (Tex. App.–El Paso 2005, no pet.); In re T.L.K., 90 S.W.3d 833, 838-39 (Tex. App.–San Antonio 2002, no pet.); In re S.C.S., 48 S.W.3d 831, 835-36 (Tex. App.–Houston [14th Dist.] 2001, pet. denied).
However, in Burnett-Dunham v. Spurgin, 245 S.W.3d 14, 17-18 (Tex. App.– Dallas 2007, pet. denied), the Dallas court disagreed, holding that the 10-year dormancy statute applied to individual child support payments even if not reduced to a solitary judgment because “[t]here is simply no exception [to section 34.001 of the Civil Practices and Remedies Code] for family law cases[.]”
We need not decide the dormancy issue because the Legislature has already resolved  [*7] the dispute. In 2009, section 34.001 of the Civil Practices and Remedies Code–the dormancy provision–was amended to provide that “[t]his section does not apply to a judgment for child support under the Family Code.” Tex. Civ. Prac. & Rem. Code Ann. § 34.001(c) (Vernon Supp. 2010). The effective date of this amendment was June 19, 2009, before the trial court’s order was signed. A historical note to the amendment provides that it “applies to each judgment for child support under the Family Code, regardless of the date on which that judgment was rendered.” Act of May 28, 2009, 81st Leg., R.S., ch. 767, § 50. Thus, we reject Cobb’s argument that the notice of application for judicial withholding was based on a dormant judgment.
Accordingly, we overrule issue one.

SUFFICIENCY OF THE EVIDENCE
In issue two, Cobb contends the evidence is legally and factually insufficient to support the trial court’s judgment. Specifically, appellant argues that he is entitled to credits for payments he made toward his child-support obligation. Gordy’s response is two-fold: First, she argues that because Cobb did not properly file a motion to stay issuance of the writ of withholding, the trial court properly  [*8] determined the arrearages as a matter of law based on her pleadings. Second, she argues that because Cobb did not request findings of fact or a reporter’s record, he cannot show that the evidence is insufficient. We agree with both of Gordy’s arguments.

Failure to Properly File Motion to Stay
Gordy argues that Cobb’s motion to stay issuance of writ of withholding was insufficient because it was (1) untimely, and (2) unverified. We agree. Section 158.307 provides as follows:

(a) The obligor may stay issuance of a judicial writ of withholding by filing a motion to stay with the clerk of the court not later than the 10th day after the notice of application for judicial writ of withholding was received.
(b) The grounds for filing a motion to stay issuance are limited to a dispute concerning the identity of the obligor or the existence or the amount of the arrearages.
(c) The obligor shall verify that statements of fact in the motion to stay issuance of the writ are true and correct.

Tex. Fam. Code Ann. § 158.307 (Vernon 2008). Here, Cobb’s motion was not verified. According to the trial court’s order, Cobb received notice of the application for judicial writ of withholding on May 6, 2009–a finding  [*9] he does not challenge on appeal. However, Cobb did not file a motion to stay issuance of the judicial writ of withholding until July 7, 2009–almost two months later. As such, Cobb’s motion to stay was untimely. In her response, Gordy objected to Cobb’s motion to stay on both grounds.
Gordy contends that, because Cobb failed to properly file a motion to stay, he cannot now complain about the amount of arrearages determined by the trial court. In Attorney General v. Mitchell, 819 S.W.2d 556, 559-60 (Tex. App.–Dallas 1991, no writ), the court held that because the obligor did not properly file his motion to stay issuance of the writ of withholding, the trial court had no jurisdiction to consider his complaints regarding the issuance of the writ. See also Effner v. Moore, No. 04-01-00294-CV, 2002 Tex. App. LEXIS 1449, 2002 WL 269116, at *1 (Tex. App.–San Antonio, 2002, no pet.) (holding same).
In Glass v. Williamson, 137 S.W.3d 114, 117 (Tex. App.–Houston [14th Dist.] 2004, no pet.), the Fourteen Court of Appeals, recognized that, post-Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000), the failure to properly file a motion to stay does not deprive the trial court of jurisdiction, but “raised the issue of whether  [*10] [the husband/obligor] was entitled to the relief he sought.” Because the wife in Glass did not object to the husband/obligor’s failure to properly file a motion to stay, the husband was entitled to contest the amount of arrearages in the trial court. Id.
Here, Gordy did object to Cobb’s defective motion to stay. Thus, the trial court did not abuse its discretion in concluding that Cobb had not properly invoked his right to challenge the arrearages sought by Gordy and in deciding those arrearages as a matter of law based on the information in her notice.

No findings of fact or conclusions of law or reporter’s record
Cobb also argues that he was not permitted to put on evidence at the hearing regarding whether the amount of arrearages alleged in Gordy’s motion was correct. However, the judgment indicates that “[a] record of the arguments and evidence was made,” thereby indicating that the hearing was an evidentiary hearing. In a bench trial, when no findings of fact and conclusions of law are filed, the trial courts judgment implies all necessary findings of fact to support it. Ryan v. Abdel-Salam, 39 S.W.3d 332, 335 (Tex. App.–Houston [1st Dist.] 2001, pet. denied); Lopez v. Hansen, 947 S.W.2d 587, 589 (Tex. App.–Houston [1st Dist] 1997, no writ).  [*11] When the implied facts are supported by evidence, it is our duty to uphold judgment on any theory of law applicable to the case. Lopez, 947 S.W.2d at 589.
Similarly, if no reporter’s record is filed due to the fault of the appellant, we may consider and decide only those issues that do not require a reporter’s record for a decision. See Tex. R. App. P. 37.3(c). We cannot review the sufficiency of the evidence in the absence of a reporter’s record from the trial. See In re J.C., 250 S.W.3d 486, 489 (Tex. App.–Fort Worth 2008, pet. denied).
Because there are no findings of fact and conclusions of law and no reporter’s record, we must presume there was sufficient evidence to support the trial court’s ruling regarding the amount of arrearages.
We overrule issue two.

DUE PROCESS
In issue three, Cobb argues that Chapter 158 of the Family Code violates his right to due process of law. Specifically, Cobb argues that Chapter 158 does not provide for a new citation, personal service, notice, time for response, or evidence. In In re Digges, 981 S.W.2d at 446, the appellant argued that Chapter 158 was unconstitutional because it did not contain a limitations period for obtaining a wage withholding  [*12] order and because it limits the defenses that can be raised to the requested withholding. The court disagreed, holding that the protections necessary for an enforcement procedure punishable by contempt did not extent to proceedings for wage withholding orders. Id.
Chapter 158 does provide for notice to the obligor and a hearing to contest arrearages. Cobb has failed to demonstrate how the procedures set up by Chapter 158 are inadequate to protect his constitutional right to due process. Accordingly, we overrule issue four.

CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice

Law Offices of Sinkin & Marvel - 866-933-CHILD(2445) | 210-732-6000
105 W. Woodlawn Ave. San Antonio, TX 78212

The trial court awarded $263,215.52 in child support arrearages from a 1970 divorce in favor of the child support obligee against the child support obligor.  The child support obligee sought child support collection and child support enforcement by a writ of withholding and child support liens.

The child support obligor argued the child support obligee cannot pursue child support collection and child support enforcement because she has waited too long.  The appellate court disagreed, holding the time period in Family Code 157.005 does not apply to writs of income withholding and child support liens.  The writ of withholding and child support lien have no time limits and can be used to pursue child support enforcement and child support collection until all child support arrearages are paid.

JOHN W. OVERTON, Appellant v. MAE W. OVERTON, Appellee

NO. 14-09-00865-CV

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

2011 Tex. App. LEXIS 893

February 8, 2011, Memorandum Opinion Filed

PRIOR HISTORY: [*1]
On Appeal from the 310th District Court, Harris County, Texas. Trial Court Cause No. 000-818,738.

COUNSEL: John W Overton of Houston, TX, for appellants.

Karen L. Marvel of San Antonio, Tx, for appellees.

JUDGES: Panel consists of Chief Justice Hedges, Justice Jamison, and Senior Justice Price. * Hedges, concurring.

*   Senior Justice Frank C. Price sitting by assignment.

OPINION BY: Adele Hedges

OPINION

MEMORANDUM OPINION
This is an appeal from the trial court’s cumulative judgment for child support arrearages entered in favor of appellee, Mae W. Overton (“Mae”), and against appellant, John W. Overton (“John”). In five issues, John contends that the trial court abused its discretion by (1) denying his verified plea of defect of parties; (2) failing to recognize that it no longer had jurisdiction to confirm the child support arrears; (3) allowing Mae to recover on a dormant judgment; (4) entering a cumulative judgment which included interest; and (5) allowing Mae to enforce an award of attorney’s fees through a judicial writ of withholding. We affirm.

I. Factual and Procedural Background
On November 17, 1970, Mae and John, an attorney, were divorced, and Mae was granted custody of their four minor children. 1 The divorce decree ordered  [*2] John to pay $350 per month in child support to Mae until the youngest child turned eighteen. 2 On September 6, 1977, the trial court entered an order holding John in contempt for failure to pay child support and finding him in arrears in the amount of $7,500 (“1977 order”).

1   At the time of the divorce, J.W. was eleven years old, S.K. was seven years old, S.N. was five years old, and T.W. was one year old.
2   T.W. turned eighteen years old on January 30, 1987.
In 1985, after Mae assigned her child support rights to the State of Texas, support payments and arrearages were ordered paid to the Office of the Attorney General. 3 In August 2008, upon an application for services from Mae, the Attorney General’s office opened a child support case file and was again assigned Mae’s support rights. Later that month, the Attorney General’s office closed the file due to the children’s age. 4

3   Title IV-D of the Social Security Act requires states to provide services relating to the enforcement of child support obligations for children who receive government assistance payments and for other children whose guardians request the services. See 42 U.S.C. § 654(4) (West Supp. 2010). In Texas, the Office of  [*3] the Attorney General is designated as Texas’s Title IV-D agency. See Tex. Fam. Code Ann. § 231.001 (West 2008). When the Attorney General provides Title IV-D services, it becomes entitled to an assignment of support rights. Id. § 231.104 (West 2008).
4   At the time the file was closed, J.W. was forty-nine years old, S.K. was forty-four years old, S.N. was forty-three years old, and T.W. was thirty-nine years old.
On May 28, 2009, Mae filed a notice of application for judicial writ of withholding as well as notices of child support liens. John subsequently filed a motion to stay issuance and delivery of the writ, in which he challenged the existence and amount of arrearages. On June 12, 2009, Mae filed her answer and request for affirmative relief in which she requested foreclosure of her child support liens and a determination of child support arrears. On June 29, 2009, John filed his second amended motion to stay in which he alleged that Mae’s enforcement action was time-barred. On June 30, 2009, Mae filed a supplemental answer and request for affirmative relief.
On July 2, 2009, the trial court held a hearing on John’s motion to stay and Mae’s request for affirmative relief. At the conclusion  [*4] of the hearing, the associate judge presiding at the hearing orally rendered judgment (1) denying John’s motion to stay and (2) granting Mae’s request for affirmative relief and a cumulative child support arrearage judgment to Mae in the amount of $263,215.52, inclusive of interest, plus court costs and attorney’s fees. On July 30, 2009, the trial court entered the order on arrears (“2009 order”) as well as an order denying John’s limitations defenses. John subsequently filed a request for trial de novo and a motion to vacate order or for new trial; the trial court denied both. This timely appeal followed.

II. Standard of Review
A trial court’s decision to grant or deny the relief requested in a motion for enforcement is reviewed for an abuse of discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Chenault v. Banks, 296 S.W.3d 186, 189 (Tex. App.–Houston [14th Dist.] 2009, no pet.) (reviewing an enforcement order under an abuse of discretion standard). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford, 801 S.W.2d at 109; Evans v. Evans, 14 S.W.3d 343, 346 (Tex. App.–Houston [14th Dist.] 2000, no pet.).  [*5] A trial court does not abuse its discretion as long as some evidence of a substantive and probative character exists to support the trial court’s decision. In re C.A.M.M., 243 S.W.3d 211, 214 (Tex. App.–Houston [14th Dist.] 2007, pet. denied). When, as here, the trial court did not file findings of fact and conclusions of law, we imply that the trial court made all findings necessary to support the judgment and will uphold those findings if supported by sufficient evidence. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Chenault, 296 S.W.3d at 189.

III. Analysis

A. Mae’s Standing to Bring Suit
In his first issue, John contends that the trial court abused its discretion by denying his verified plea of defect of parties. Specifically, he argues that Mae lacks standing to bring her claim for enforcement of child support.
The record reflects that Mae first assigned her child support rights to the State of Texas in 1985. In August 2008, upon Mae’s application for services, the Attorney General’s office opened a child support case file and was again assigned Mae’s support rights. At the July 2, 2009 hearing, evidence was presented that the Attorney General had closed  [*6] the file on August 28, 2008, due to the children’s age and had taken no further action.
John first argues that Mae lacks standing to bring this action to enforce payment of child support arrearages because she assigned her support rights to the Attorney General’s office in August 2008. However, the undisputed evidence establishes that the Attorney General’s office closed the case on August 28, 2008, and the assignment was terminated.
John next asserts that even if the assignment was terminated, he did not receive notice of the termination as required by Texas Family Code section 231.106(a). 5 Thus, he argues, the Attorney General’s failure to notify him of the termination prevented him from making payments to Mae because he believed that he was still obligated to make payments to the Attorney General’s office.

5   Section 231.106 provides, in relevant part, as follows:

(a) On termination of support rights to the Title IV-D agency, the Title IV-D agency shall, after providing notice to the obligee and the obligor, send a notice of termination of assignment to the obligor or other payor, which may direct that all or a portion of the payments be made payable to the agency and to other persons  [*7] who are entitled to receive the payments.
. . . .

Tex. Fam. Code Ann. § 231.106 (West 2008).
It is true that section 231.106 requires the Attorney General’s office to send a notice of termination of assignment to the obligor and obligee upon the termination of support rights to the office. See Tex. Fam. Code Ann. § 231.106(a). Notwithstanding this requirement, we find nothing in Chapter 231 suggesting that there is a penalty for failure to send a notice. Further, we find John’s argument that he was precluded from making payments to Mae because he was not notified of the termination to be disingenuous. When the trial judge asked John whether it was his position that he had paid the arrearages to the Attorney General’s office, he admitted that it was not.
John also argues that Mae is precluded from bringing this action because there is no evidence that the Attorney General’s office reassigned, transferred, or released the claim to Mae following termination of the assignment pursuant to Family Code section 231.002(i). 6 However, John has not properly preserved the issue of release for appellate review. 7 See Tex. R. App. P. 33.1 (requiring, as prerequisite to presenting issue for appellate  [*8] review, that record show appellant’s presentation of issue before trial court by timely request, objection, or motion, stating grounds with sufficient specificity to make trial court aware of complaint). Having failed to raise the issue of lack of release in the trial court, he has waived this argument on appeal. See id. We overrule John’s first issue.

6   Section 231.002(i) provides that “[t]he Title IV-D agency may provide a release or satisfaction of a judgment for all or part of the amount of the arrearages assigned to the Title IV-D agency under section 231.104(a).” Id. § 231.002(i) (West Supp. 2009).
7   In his answer to Mae’s request for affirmative relief, John alleged only that Mae no longer owned her claim for child support due to the August 6, 2008 assignment of her support rights to the Attorney General’s office. At the July 2, 2009 hearing, John argued only that if the assignment had, in fact, been terminated, he had not received notice of the termination.

B. Trial Court’s Jurisdiction to Confirm Child Support Arrearages
In his second issue, John contends that the trial court did not have jurisdiction to determine the child support arrearages. Specifically, he claims that the court  [*9] abused its discretion because it failed to recognize the time limitations imposed on its jurisdiction by Family Code section 157.005(b).
The version of section 157.005(b) in effect when Mae filed her request for affirmative relief provided, in pertinent part,

. . . .
(b) The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support if a motion for enforcement requesting a money judgment is filed not later than the 10th anniversary after the date:

(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.

Act of May 29, 2005, 79th Leg., R.S., Ch. 916, § 21, 2005 Tex. Gen. Laws 3148, 3155 (amended 2009) (current version at Tex. Fam. Code Ann. § 157.005(b) (West Supp. 2009)). John claims that under this provision, Mae was required to file her pleading seeking confirmation of child support arrearages within ten years of the emancipation of their youngest child, which she did not do. We disagree.
After Mae filed her notice of application for judicial writ of withholding and delivered notices of child support liens to John, John filed his motion  [*10] to stay issuance and delivery of the writ, in which he challenged the existence and the amount of arrearages. Thereafter, Mae requested affirmative relief under two different enforcement remedies: a determination of arrearages under section 158.309, 8 and a foreclosure of the child support liens and judgment for the arrears under section 157.323. 9 Contrary to John’s contention, Mae did not request a determination of child support arrears and a judgment under section 157.005(b). 10

8   n 8 Section 158.309(c) provides that “[u]pon hearing [a motion to stay], the court shall: (1) render an order for income withholding that includes a determination of the amount of child support arrearages, including medical support and interest; or (2) grant the motion to stay. Tex. Fam. Code Ann. § 158.309(c) (West 2008).
9   Section 157.323(c)(1) provides that if arrearages are owed by the obligor in an action to foreclose a child support lien, “the court shall … render judgment against the obligor for the amount due, plus costs and reasonable attorney’s fees ….” Tex. Fam. Code Ann. § 157.323(c)(1) (West 2008).
10   Our conclusion is further supported by the following statements made by Mae’s counsel at the  [*11] June 2, 2009 hearing:

Ms. Marvel: We are not seeking a judgment under 157.005(b) because that statute is the ten-year statute. And we recognize that that does not apply here. We are seeking two separate remedies under the Family Code under Chapter 158. Specifically, 158.309 which allows us under judicial writ of withholding when he files a motion to stay, which the obligor has done, asks the Court to confirm the child support arrears and make a determination. And under 157.323, when someone challenges the issuance of a child support lien, the Court can determine the arrears and render judgment.

Further, section 158.102 imposes no deadline on the trial court’s jurisdiction to issue an order or writ for income withholding under the chapter and authorizes the entry of such an order “until all current support and child support arrearages, interest, and any applicable fees and costs, including ordered attorney’s fees and court costs, have been paid.” Tex. Fam. Code Ann. § 158.102 (West 2008); see also In re A.D., 73 S.W.3d 244, 249 (Tex. 2002) (recognizing that administrative wage withholding by Attorney General’s office is available regardless of length of time obligor has avoided his court-ordered  [*12] support duty); Packard v. Davis, No. 2-08-022-CV, 2008 Tex. App. LEXIS 8672, 2008 WL 4925998, at *2 (Tex. App.–Fort Worth Nov. 13, 2008, no pet.) (mem. op., not designated for publication). Similarly, section 157.318 provides that a child support lien, which secures payment of all child support arrearages owed by the obligor under the underlying child support order, “is effective until all current support and child support arrearages, including interest, any costs and reasonable attorney’s fees … have been paid ….” Tex. Fam. Code Ann. § 157.318 (a), (c) (West Supp. 2009).
We conclude that the trial court possessed jurisdiction to sign an enforcement order allowing Mae to collect unpaid child support by means of a child support lien or writ of withholding. We overrule John’s second issue.

C. Applicability of Dormancy Statutes
In his third issue, John contends that Mae is barred from recovering past-due child support because her “judgment of May 18, 1977″ as well as her “statutory judgments” pursuant to Texas Family Code section 157.261(a) are dormant under Texas Civil Practice and Remedies Code section 34.001. He also argues that Mae failed to revive the judgments under Texas Civil Practice and Remedies Code section 31.006.
Texas Civil Practice and Remedies Code section 34.001(a)  [*13] provides that “[i]f a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived.” Tex. Civ. Prac. Rem. Code Ann. § 34.001(a) (West Supp. 2009). Section 31.006 of the Code provides that “[a] dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date that the judgment becomes dormant.” Id. § 31.006 (West 2008).
John argues that Mae’s “judgment of May 18, 1977″ is more than ten years old and is, thus, dormant under section 34.001. The “judgment” to which John refers is the trial court’s 1977 order in which it found John in arrears and held him in contempt for his failure to pay his support obligations. John’s argument, however, is without merit. The ten-year dormancy statute comes into play only when child support arrearages are reduced to a judgment confirming arrearages. In re S.C.S., 48 S.W.3d 831, 836 (Tex. App.–Houston [14th Dist.] 2001, pet. denied); see also In re D.T., No. 12-05-00420-CV, 2007 Tex. App. LEXIS 9968, 2007 WL 4465250, at *2 (Tex. App.–Tyler Dec. 21, 2007, no pet.) (mem.  [*14] op.); In re J.M.D., No. 14-03-01196, 2006 Tex. App. LEXIS 2510, 2006 WL 1148113, at *1 (Tex. App.–Houston [14th Dist.] Mar. 30, 2006, pet. denied) (mem. op., not designated for publication). The ten-year dormancy period began to run upon the signing of the judgment confirming arrearages, not from the date of the contempt order. See Tex. Civ. Prac. & Rem. Code Ann. § 34.001; In re D.T., 2007 Tex. App. LEXIS 9968, 2007 WL 4465250, at *2 (finding trial court’s order to pay arrearages was not judgment confirming arrearages and, therefore, not barred by section 34.001); In re J.M.D., 2006 Tex. App. LEXIS 2510, 2006 WL 1148113, at *1 (concluding divorce decree is not child support judgment and dormancy period under section 34.001 does not run from date of divorce decree).
John also contends that Mae’s “statutory judgments” under Family Code section 157.261(a) are dormant. Section 157.261(a) of the 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.” Tex. Fam. Code Ann. § 157.261(a) (West 2008). 11 Thus, John argues, each missed child support payment, the last of which would have presumably occurred in January 1987 when his youngest child turned eighteen  [*15] years old, became dormant ten years from the date it became due. See Tex. Fam. Code Ann. § 157.261(a); Tex. Civ. Prac. & Rem. Code Ann. § 34.001. John’s reliance on section 157.261(a) is misplaced. We have previously held that the ten-year dormancy period under section 34.001 does not run from the dates on which individual child support payments are due. See In re S.C.S., 48 S.W.3d at 836; see also in re J.M.D., 2006 Tex. App. LEXIS 2510, 2006 WL 1148113, at *1.

11   It is undisputed that John missed numerous support payments between the date the divorce decree was signed and the date of emancipation of his youngest child on January 30, 1987. The record reflects that his last child support payment was made on March 25, 1983.
Because John’s child support arrearages were not reduced to a judgment until July 2009, his dormancy argument fails. See In re S.C.S., 48 S.W.3d at 836. Accordingly, we overrule John’s third issue. 12

12   Because we find that Texas Civil Practice and Remedies Code section 34.001(a) does not bar Mae’s action, we need not address John’s argument that subsection (c), which provides that “[section 34.001] does not apply to a judgment for child support under the Family Code,” violates article I, section 16 of the Texas Constitution  [*16] prohibiting retroactive laws. See Tex. Civ. Prac. & Rem. Code. § 34.001(c) West Supp. 2009); Tex. Const. art. I, § 16.

D. Calculation of Cumulative Child Support Arrearage Judgment
In his fourth issue, John contends that the trial court abused its discretion by granting Mae a cumulative money judgment in the amount of $263,215.52. Specifically, he argues that because the judgment included interest, it impermissibly modified the amount of previously determined arrearages.
In calculating child support arrearages, the trial court’s discretion is very limited. See Chenault, 296 S.W.3d at 189. Family Code section 157.262(a) states that in rendering a money judgment, a trial court “may not reduce or modify the amount of child support arrearages” except as specifically provided in the Family Code. Tex. Fam. Code Ann. § 157.262(a) (West Supp. 2009); Chenault, 296 S.W.3d at 189. The trial court “acts as a mere scrivener in mechanically tallying up the amount of arrearage.” Chenault, 296 S.W.3d at 189.
At the July 2, 2009 hearing, in support of her request for a cumulative money judgment, Mae presented uncontested evidence that John owed $140,845.33 in missed child support payments to date. This amount included  [*17] the $7,500 arrearage reflected in the 1977 order and all subsequent missed payments. In addition, Mae presented evidence showing $122,370.19 in accrued interest; this sum reflected the interest that had accrued on the $7,500 arrearage as well as John’s subsequent missed payments. At the conclusion of the hearing, the trial court granted a cumulative child support arrearage judgment to Mae in the amount of $263,215.52.
John complains that the trial court impermissibly modified the “final judgment of November 17, 1970″ and “the order of May 18, 1977″ in calculating the arrearages and interest in the 2009 judgment. However, the 1970 “judgment” to which John refers is not a judgment, but rather the divorce decree. A divorce decree is not a child support judgment. See S.C.S., 48 S.W.3d at 836. Likewise, the 1977 order is the contempt order previously discussed and is not a child support judgment. See In re D.T., 2007 Tex. App. LEXIS 9968, 2007 WL 4465250, at *2.
Nevertheless, John’s argument is flawed for another reason. The Family Code provides that “[i]f a motion for enforcement of child support requests a money judgment for arrearage, the court shall confirm the amount of arrearages and render one cumulative money  [*18] judgment” that includes “interest on the arrearages.” Tex. Fam. Code Ann. § 157.263(a), (b)(3) (West 2008). Awarding interest on child support arrearage is mandatory, and the trial court has no discretion to not award the full amount of interest due. See Chenault, 296 S.W.3d at 193.
In the absence of findings of fact and conclusion of law, we imply that the trial court made all findings necessary to support the judgment and will uphold those findings if supported by sufficient evidence. See Heine, 835 S.W.2d at 83; Chenault, 296 S.W.3d at 189. Here, based on the uncontested evidence and the terms of the divorce decree, the trial court properly calculated the arrearages and interest John owed and rendered one cumulative money judgment. 13 We overrule John’s fourth issue.

13   John also contends that the judgment in arrears entered on July 30, 2009, was a judgment nunc pro tunc because it “provide[d] a different amount of child support [and] is not a change to correct a clerical error and is void.” As support for his contention, John points to Mae’s supplemental answer and request for affirmative relief, in which she requested that “[a]ny orders relied upon by Obligor John W. Overton and  [*19] held valid by this Court should be modified nunc pro tunc to accurately reflect the correct arrears and interest.”
A trial court may at any time correct a clerical error in the judgment by entering a judgment nunc pro tunc. See Tex. Civ. P. 316, 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered and does not arise from judicial reasoning or determination. Hernandez v. Lopez, 288 S.W.3d 180, 184 (Tex. App.–Houston [1st Dist.] 2009, no pet.). By contrast, a judicial error occurs in the rendering, as opposed to the entering, of a judgment. Escobar, 711 S.W.2d at 231. It arises from a mistake of law or fact that requires judicial reasoning to correct. Butler. v. Cont’l Airlines, Inc., 31 S.W.3d 642, 647 (Tex. App.–Houston [1st Dist.] 2000, pet. denied). The trial court can only correct the entry of a final written judgment that incorrectly states the judgment actually rendered. Escobar, 711 S.W.2d at 231-32. Even if the trial court incorrectly rendered judgment, it cannot alter a written judgment that precisely reflects the incorrect rendition. Id. at 232.  [*20] A judgment rendered to correct a judicial error after the court’s thirty-day plenary period has expired is void. Hernandez, 288 S.W.3d at 185.
Notwithstanding the request in Mae’s pleading, there is nothing in the record to suggest that the trial court’s 2009 order in arrears was a judgment nunc pro tunc. Besides the fact that the words “nunc pro tunc” appear nowhere in the 2009 order, the court was not attempting to correct an error in the 1970 divorce decree or 1977 contempt order-rather, the court was fulfilling its statutory obligation to award interest on John’s child support arrearages. See Tex. Fam. Code Ann. § 157.263(a), (b)(3); Chenault, 296 S.W.3d at 193.

E. Award of Attorney’s Fees
In his fifth issue, John contends that the trial court abused its discretion by allowing Mae to enforce her judgment for attorney’s fees though a judicial writ of withholding. Specifically, John argues that Family Code section 157.167(b) does not authorize Mae to collect attorney’s fees through income withholding.
Under Family Code section 157.167(a), “[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  [*21] attorney’s fees and all court costs in addition to the arrearages. Fees and costs ordered under this subsection may be enforced by any means available for the enforcement of child support, including contempt.” Tex. Fam. Code Ann. § 157.167(a) (West 2008). In its 2009 order, the trial court found that John had failed to pay his court-ordered child support and ordered him to pay arrearages and accrued interest as well as Mae’s attorney’s fees. Under subsection (a), Mae was entitled to enforce payment of her attorney’s fees by any means available for the enforcement of child support, one of which is through an order withholding earnings. See Tex. Fam. Code Ann. §§ 157.167(a), 158.0051 (West 2008). 14

14   Section 158.0051 provides, in relevant part:

(a) In 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 under this title.

Tex. Fam. Code Ann. § 158.0051 (West 2008).
John’s reliance on section 157.167(b)  [*22] is misplaced. Subsection (b) applies only when a respondent “has failed to comply with the terms of an order providing for the possession of or access to a child,” which is not the case here. Id. § 157.167(b). 15 John also cites Finley v. May, 154 S.W.3d 196, 199 (Tex. App.–Austin 2004, no pet.), in support of his contention that the trial court improperly assessed attorney’s fees as child support. However, Finley is distinguishable from the case before us. In Finley, the appeals court found that the trial court had erred in assessing the mother’s attorney’s fees and costs as child support because the case involved modification of the parent-child relationship, not the enforcement of delinquent child support obligations, as is the case here. See 154 S.W.3d at 199 (recognizing attorney’s fees may be assessed as child support during child support enforcement proceedings).

15   Section 157.167(b) provides as follows:

. . . .
(b) If the court finds that the respondent has failed to comply with the terms of an order providing for the possession of or access to a child, the court shall order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to any other  [*23] remedy. If the court finds that the enforcement of the order with which the respondent failed to comply was necessary to ensure the child’s physical or emotional health or welfare, the fees and costs ordered under this subsection may be enforced by any means available for the enforcement of child support, including contempt, but not including income withholding.

Id. § 157.167(b).
We conclude that the trial court did not abuse its discretion in allowing Mae to enforce the collection of attorney’s fees through a judicial writ of withholding. We overrule John’s fifth issue.

IV. Conclusion
Having overruled all of John’s issues, we affirm the trial court’s judgment.
/s/ Adele Hedges
Chief Justice

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105 W. Woodlawn Ave. San Antonio, TX 78212

The trial court awarded $93,323.78 in child support arrearages from a 1976 divorce in favor of the child support obligee against the child support obligor.  The child support obligee sought child support collection and child support enforcement by a writ of withholding and child support liens.

The child support obligor did not file his contest to the writ of withholding within 10 days, as required by statute.  The child support obligor argued the child support obligee cannot pursue child support collection and child support enforcement because she has waited too long.

The appellate court disagreed and specifically held the 10 year time period in Family Code 157.005 does not apply to writs of withholding or child support liens.  The court also held dormancy does not apply to child support collection or child support enforcement.

MANUEL R. ISAACS, Appellant v. JULIA ANN MCKINNEY ISAACS A/K/A JULIA PARTON, Appellee

NO. 14-09-01091-CV

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

338 S.W.3d 184; 2011 Tex. App. LEXIS 2469

April 5, 2011, Majority Opinion Filed

SUBSEQUENT HISTORY: Petition for review filed by, 05/23/2011

PRIOR HISTORY: [**1]
On Appeal from the 309th District Court, Harris County, Texas. Trial Court Cause No. 1096809. Judge Frank Barlow Rynd.

COUNSEL: George W. Dana of Houston, TX, for appellants.

Karen L. Marvel of San Antonio, TX, Steven Alan Sinkin of San Antonio, TX, for appellees.

JUDGES: Kem Thompson Frost, Justice. Panel consists of Justices Anderson, Frost, and Brown. (Anderson, J., concurring without opinion).

OPINION BY: Kem Thompson Frost

OPINION

[*185]  MAJORITY OPINION
An ex-husband appeals from an order granting his ex-wife a money judgment for child-support arrearages, attorney’s fees, levies of child-support liens, and a judicial writ of withholding from the ex-husband’s earnings. On appeal, the ex-husband’s main arguments are that (1) the trial court lacked subject-matter jurisdiction under Texas Family Code section 157.005, and (2) sections 31.006 and 34.001 of the Texas Civil Practice and Remedies Code barred  [*186]  his ex-wife from obtaining judgment on the child-support arrearages. Concluding that the ex-husband’s arguments lack merit, we affirm the trial court’s judgment.

I. Factual and Procedural Background
Appellant Manuel R. Isaacs (“Isaacs”) and appellee Julia Ann McKinney Isaacs a/k/a Julia Parton (“Parton”) were divorced in December 1976.  [**2] Isaacs’s duty to pay child support as to the only child of the marriage ended in October 1986. More than twenty-two years later, in April 2009, Parton filed a notice of child-support lien under Family Code section 157.313. 1 See Tex. Fam. Code Ann. § 157.313 (West 2008). Parton also filed a notice of application for judicial writ of withholding under Family Code section 158.301 (“Notice”). See Tex. Fam. Code Ann. § 158.301 (West Supp. 2010). Parton served these notices on Isaacs. Parton thus gave notice of her child-support lien and of her request for a judicial writ requiring Isaacs’s employer to withhold amounts from Isaacs’s earnings to satisfy unpaid child-support obligations. Parton alleged a child-support arrearage of more than $103,000 and requested that $4,569.74 be withheld each month from Isaacs’s earnings.

1   Unless otherwise stated, all statutory references in this opinion are to the Texas Family Code.
Isaacs did not file a motion to stay within ten days after receiving the Notice from Parton. See Tex. Fam. Code Ann. § 158.307 (West 2008) (stating that, not later than ten days after receipt of such a notice, the obligor may stay issuance of a judicial writ of withholding by  [**3] filing a motion to stay disputing the identity of the obligor or the existence or amount of the arrearages). In August 2009, Isaacs filed a motion to set aside the Notice and for release or reformation of Parton’s child-support lien (“Motion”). The divorce decree required Isaacs to pay the child support to the Harris County Child Support Division. In the Motion, Isaacs asserted that he had paid Parton all of the child support that she was due, but that all payments except one were made directly to her. Therefore, Isaacs denied that he had failed to pay any child support. Isaacs asserted, in the alternative, that the arrearage should be no more than $40,000. Isaacs also argued that, under section 157.005 and Civil Practice and Remedies Code sections 34.001 and 31.006, Parton is precluded from recovering any arrearage through a judicial writ of withholding or a child-support lien. Isaacs asked for a hearing.
In August 2009, Parton responded by, among other things, requesting that if the trial court were to hold a hearing, that it determine the amount of arrearages and grant Parton relief under section 157.323, regarding enforcement of a child-support lien, and section 158.309, governing  [**4] hearings on motions to stay the issuance of a judicial writ of withholding. See Tex. Fam. Code Ann. §§ 157.323, 158.309 (West 2008). The following month, on September 9, 2009, the trial court held a hearing on the competing requests for relief. The trial court found that it had subject-matter jurisdiction. Under section 157.323, the trial court rendered judgment against Isaacs for $93,323.78 in child-support arrearages plus reasonable attorney’s fees. The trial court ordered that Parton is entitled to levies to satisfy the child-support liens. In addition, the trial court ordered that Parton be granted a judicial writ of withholding from Isaacs’s earnings, requiring Isaacs’s present and future employers to withhold $625 per month from his earnings. The trial court concluded that section 157.005(b) did not deprive the trial  [*187]  court of jurisdiction. In its findings of fact and conclusions of law, the trial court concluded that Civil Practice and Remedies Code section 34.001 did not apply, based on the 2009 amendment to section 34.001, 2 stating that this statute does not apply to a judgment for child support under the Family Code. Isaacs appeals asserting five issues.

2   All references in  [**5] this opinion to “section 34.001″ are to section 34.001 of the Texas Civil Practice and Remedies Code.

II. Analysis

A.Did section 157.005 deprive the trial court of jurisdiction?
In his first issue, Isaacs asserts that section 157.005 deprived the trial court of jurisdiction to render its judgment for child-support arrearages. See Tex. Fam. Code Ann. § 157.005 (West Supp. 2010). Isaacs claims there is an irreconcilable conflict between section 157.005 and sections 157.323 and 158.309. See Tex. Fam. Code Ann. §§ 157.005, 157.323, 158.309. Research reveals no case in which a court has construed the current version of section 157.005, which reads in pertinent part as follows:

(b) 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:

(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.

Tex. Fam. Code Ann. § 157.005 (emphasis added). Under the unambiguous  [**6] language of the statute, section 157.005(b) applies only to a trial court’s confirmation of arrearages and rendition of a cumulative money judgment under section 157.263. See id. Under this statute, if a party files a motion for enforcement of child support and requests a cumulative money judgment for arrearages, then the court shall confirm the amount of arrearages and render one cumulative money judgment. See Tex. Fam. Code Ann. § 157.263 (West 2008). But Parton did not seek, and the trial court did not grant, relief under section 157.263.
If an obligor fails to satisfy an obligation to pay child support, the obligee may seek various cumulative remedies, including (1) an order holding the obligor in contempt of court, (2) a cumulative money judgment for the arrearages that can be executed and enforced as any other judgment, (3) enforcement of the obligee’s child-support lien against the obligor’s nonexempt property, (4) a judicial writ of withholding from the obligee’s earnings, and (5) an administrative writ of withholding from the obligee’s earnings. See Tex. Fam. Code Ann. §§ 157.005(a), 157.263, 157.312(a), 158.309, 158.501(a); In re A.D., 73 S.W.3d 244, 246-47 (Tex. 2002) (outlining  [**7] various remedies for failure to pay child support in context of rejecting constitutional challenge to statute providing for judicial writ of withholding from the obligee’s earnings).
Parton did not pursue relief under section 157.263. See Tex. Fam. Code Ann. § 157.263. Instead, she sought to enforce child-support liens against Isaacs’s nonexempt property, and she sought a judicial writ of withholding from Isaacs’s earnings. See Tex. Fam. Code Ann. §§ 157.323, 158.309. In enforcing Parton’s child-support liens the trial court had jurisdiction to

[*188]  (1) render judgment against the obligor for the amount due, plus costs and reasonable attorney’s fees;
(2) order any official authorized to levy execution to satisfy the lien, costs, and attorney’s fees by selling any property on which a lien is established under this subchapter; or
(3) order an individual or organization in possession of nonexempt personal property or cash owned by the obligor to dispose of the property as the court may direct.

Tex. Fam. Code Ann. § 157.323 (a), (c). As to the judicial writ of withholding, the trial court had jurisdiction to “render an order for income withholding that includes a determination of the amount of child  [**8] support arrearages, including medical support and interest.” Tex. Fam. Code Ann. § 158.309(c)(1).
Isaacs claims that these statutes irreconcilably conflict. They do not. Under the unambiguous language of these statutes, Parton has several cumulative remedies by which she can choose to seek payment of unpaid child support. The jurisdiction of the trial court to impose the first two remedies listed above expires after a specific period of time. See Tex. Fam. Code Ann. § 157.005(a), (b). The other three remedies are available until various items, including all child support and child-support arrearages have been completely paid. See Tex. Fam. Code Ann. §§ 157.318(a), 158.102, 158.502. Under its unambiguous language, section 157.005(b) does not limit the trial court’s jurisdiction to grant the relief that it granted in the judgment from which Isaacs appeals. Therefore, the trial court correctly ruled that it had jurisdiction, and Isaacs’s arguments under section 157.005 lack merit. 3

3   Applying a similar analysis, this court recently held that the 2005 version of section 157.005(b) did not deprive the trial court of jurisdiction to grant relief under sections 157.323 and 158.309. See Overton v. Overton, No. 14-09-00865-CV, 2011 Tex. App. LEXIS 893, 2011 WL 398046, at *3-4 (Tex. App.–Houston [14th Dist.] Feb. 8, 2011, no pet. h.)  [**9] (mem. op.).
Isaacs relies upon this court’s opinion in In re S.C.S. See 48 S.W.3d 831 (Tex. App.–Houston [14th Dist.] 2001), pet. denied sub nom. Sprouse v. Sprouse, 92 S.W.3d 502 (Tex. 2002). In S.C.S., an ex-husband obligated to pay child support asserted a constitutional challenge against a former version of section 157.005(b). See id. at 833-34. The ex-husband asserted that the legislature’s removal of all time limits from that section violated his constitutional rights because section 157.005(b) was a statute of limitations that provided a vested right. 4 See id. The S.C.S. court held that the statute spoke to the trial court’s jurisdiction and was not a statute of limitations. See id. at 833-35. In the case under review, Isaacs argues that section 157.005(b) limits the trial court’s jurisdiction. Isaacs has not asserted that this provision is a statute of limitations, and he has not challenged its constitutionality. The version of section 157.005(b) at issue in the case under review, has a time limit and specifies that it applies to relief under section 157.263, unlike the version at issue in S.C.S. See id. Therefore, S.C.S. is not on point.

4   The legislature later put a time limitation  [**10] back into section 157.005(b). See Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 21, 2005 Tex. Gen. Laws 3148, 3156.
Concluding that section 157.005(b) does not apply so as to deprive the trial court of subject-matter jurisdiction to render the judgment from which Isaacs appeals, we overrule Isaacs’s first issue.

B.Did section 34.001 prevent the trial court from rendering judgment for the child-support arrearages?
[*189]  In his second issue, Isaacs challenges the trial court’s judgment, arguing that section 34.001 precludes the relief awarded by the trial court. Isaacs argues that each missed child-support payment was a separate final judgment that became dormant under section 34.001 because no execution issued within ten years. See Tex. Civ. Prac. & Rem. Code Ann. § 34.001(a) (West Supp. 2010). Once a judgment becomes dormant, no execution may be issued on the judgment unless it is revived, and Isaacs asserts that the deadline for reviving these alleged judgments was within two years after they became dormant. See id. § 34.001(a), § 31.006 (West 2008) (stating that “a dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the  [**11] date that the judgment becomes dormant”). Isaacs argues that, because Parton did not obtain execution on each missed child-support payment within ten years or timely revive these allegedly dormant judgments, Parton can no longer enforce these judgments. Isaacs bases this argument on the reasoning of the Fifth Court of Appeals in Burnett-Dunham v. Spurgin. See 245 S.W.3d 14, 16-18 (Tex. App.–Dallas 2007, pet. denied).
Under the unambiguous language of the applicable statutes, Parton may pursue the relief granted by the trial court until all child support, child-support arrearages, interest, costs, and attorney’s fees have been paid. See Tex. Fam. Code Ann. §§ 157.318(a), 158.102. In addition, the Burnett-Dunham court interpreted a prior version of section 34.001. 5 See Burnett-Dunham, 245 S.W.3d at 16-18. Effective June 19, 2009, the legislature amended section 34.001 by adding a subsection in which the legislature explicitly states that section 34.001 does not apply “to a judgment for child support under the Family Code.” Act of May 28, 2009, 81st Leg., R.S., ch. 767, §§ 31, 51, 2009 Tex. Gen. Laws 1938, 1948, 1950 (codified at Tex. Civ. Prac. & Rem. Code Ann. § 34.001(c) (West Supp.  [**12] 2010)). The legislature provided that this amendment applies to each judgment for child support under the Family Code, regardless of the date upon which the judgment was rendered. See id., §§ 31, 50, 2009 Tex. Gen. Laws at 1948, 1950. Therefore, this amendment is part of the version of section 34.001 that applies to the case under review. The Supreme Court of Texas and this court have yet to interpret this statute. See Overton v. Overton, No. 14-09-00865-CV, 2011 Tex. App. LEXIS 893, 2011 WL 398046, at *5, n.12 (Tex. App.–Houston [14th Dist.] Feb. 8, 2011, no pet. h.) (mem. op.) (noting the amended version of section 34.001 but stating that the court did not need to apply the new subsection (c) to dispose of that appeal). Applying the new subsection (c), we conclude that, under its unambiguous language, section 34.001 does not apply to a judgment for child support under the Family Code. See Tex. Civ. Prac. & Rem. Code Ann. § 34.001(c). Therefore, under the unambiguous language of this statute, Isaacs’s argument under his second issue lacks merit. See Cobb v. Gordy, No. 01-09-00764-CV, 2011 Tex. App. LEXIS 946, 2011 WL 494801, at *3 (Tex. App.–Houston [1st Dist.] Feb. 10, 2011, no pet. h.) (mem op.).

5   This court interpreted this prior  [**13] version of 34.001 differently than did the Burnett-Dunham court. See In re S.C.S., 48 S.W.3d at 835-36. This version of 34.001 is not at issue in the case under review.
Under his second issue, Isaacs notes the 2009 amendment to section 34.001 but argues that this amendment violates the prohibition against retroactive laws contained in article I, section 16 of the Texas Constitution. See Tex. Const. art. I, § 16. Isaacs waived this argument by not presenting it in the trial court. See  [*190]  Tex. R. App. P. 33.1(a); In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (holding that, to preserve argument for appellate review, including constitutional arguments, party must present it to trial court by timely request, motion, or objection, state specific grounds therefore, and obtain ruling); Langston v. City of Houston, No. 14-08-000063-CV, 2009 Tex. App. LEXIS 6164, 2009 WL 3003259, at *3 (Tex. App.–Houston [14th Dist.] Aug. 6, 2009, no pet.) (mem. op.) (same). Because Isaacs failed to preserve error, we do not address whether the 2009 amendment to section 34.001 violates article I, section 16 of the Texas Constitution. See In re L.M.I., 119 S.W.3d at 711; Langston, 2009 Tex. App. LEXIS 6164, 2009 WL 3003259, at *3. Accordingly, we overrule Isaacs’s second  [**14] issue.

C.Did the trial court err in ruling that the ex-wife is entitled to child-support liens, levies, and writs of income withholding as remedies for the collection of unpaid child support?
In his third and fourth issues, Isaacs challenges the trial court’s ruling that Parton is entitled to child-support liens, levies, and writs of income withholding as remedies for the collection of unpaid child support. Isaacs also challenges the trial court’s order that Parton be granted a judicial writ of withholding from earnings. In his arguments under these two issues, Isaacs repeats the same arguments that he makes under his first two issues. These arguments fail for the reasons stated in the two previous sections of this opinion. Accordingly, we overrule Isaacs’s third and fourth issues.

D. Should this court address the ex-husband’s challenge to the attorney’s fees?
Under his fifth and final issue, Isaacs argues that, if this court reverses the trial court’s judgment in whole or in part, then this court also should reverse the trial court’s award of attorney’s fees. Inasmuch as we have overruled the first four issues and are not reversing the trial court’s judgment, we do not address Isaacs’s  [**15] fifth issue because it is conditioned on an event that has not occurred.

III. Conclusion
Section 157.005(b) does not apply so as to deprive the trial court of subject-matter jurisdiction to render the judgment from which Isaacs appeals. Under its unambiguous language, section 34.001 does not apply to a judgment for child support under the Family Code.
The trial court’s judgment is affirmed.
/s/ Kem Thompson Frost
Justice

Law Offices of Sinkin & Marvel - 866-933-CHILD(2445) | 210-732-6000
105 W. Woodlawn Ave. San Antonio, TX 78212

The trial court awarded $113,656.37 in child support arrearageg from a 1972 divorce in favor of the child support obligee against the child support obligor.  The child support obligee sought child support collection and child support enforcement through a writ of withholding and a cumulative money judgement.

The child support obligor argued his child support obligation had become dormant.  The appellate court disagreed, holding dormancy does not apply to an unpaid child support payment.

In the Interest of J.M.R.

No. 04-03-00284-CV

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

June 23, 2004, Delivered
June 23, 2004, Filed

SUBSEQUENT HISTORY: [*1]  Released for Publication August 27, 2004.

PRIOR HISTORY: From the 73rd Judicial District Court, Bexar County, Texas. Trial Court No. 1971-FC-240, 445. Honorable John J. Specia, Jr., Judge Presiding.

DISPOSITION: AFFIRMED.

COUNSEL: For Appellant: Oscar C. Gonzalez, Law Offices of Oscar C. Gonzalez, Inc., San Antonio, TX.

For Appellee: Karen L. Marvel, Steven A. Sinkin, Law Offices of Sinkin & Barretto, P.L.L.C., San Antonio, TX.

JUDGES: Opinion by: Paul W. Green, Justice. Sitting: Alma L. Lopez, Chief Justice, Paul W. Green, Justice, Karen Angelini, Justice.

OPINIONBY: Paul W. Green

OPINION: MEMORANDUM OPINION

This case arises from a dispute over child support. Appellant Raoul Rico and appellee Aurora Garcia were divorced in January of 1972. The trial court ordered Rico to pay child support in the amount of $ 80 a month, from February 1, 1972 until August 7, 1986. In July of 2000, Garcia filed a notice of application for judicial writ of withholding, seeking to obtain unpaid child support payments from Rico. Rico failed to respond, and the writ issued against him on July 31, 2000. In December of 2000, Rico filed a motion to terminate the writ. Garcia subsequently filed a motion for cumulative judgment on the issue of past due child support. Following a hearing, the court granted Garcia’s motion, finding Rico to owe child support in the total amount [*2]  of $ 113, 656.37. n1 The court also denied Rico’s motion to terminate the writ. He now appeals this finding in one issue.

n1 Rico was also ordered to pay 10% interest per year on the child support, as well as $ 10,000 in attorney’s fees. The trial court also mandated that Rico pay Garcia $ 7,500 in appellate attorney’s fees if he chose to appeal the case.

Because the issue in this appeal involves the application of well-settled principles of law, we affirm the trial court’s judgment in this memorandum opinion under TEX. R. APP. P. 47.1 for the following reasons:

In his sole issue, Rico claims the trial court erred in failing to apply the ten-year dormancy statute under sections 31.006, and 34.001 of the Texas Civil Practices and Remedies Code. Under these statutes, a judgment becomes dormant if a writ of execution is not issued within ten years of the judgment’s rendition. TEX. CIV. PRAC. & REM. CODE §  34.001(a) (Vernon 2003). The Code also states that a dormant judgment may [*3]  not be revived by an action of debt brought after the second anniversary of the date the judgment becomes dormant. TEX. CIV. PRAC. & REM. CODE ANN. §  31.006 (Vernon 2003).

In support of his argument, Rico relies on Texas Family Code section 14.41, as well as the Texas Supreme Court case of Huff v. Huff, 648 S.W.2d 286, 26 Tex. Sup. Ct. J. 273 (Tex. 1983). In Huff, the Court held that an action to enforce an order of child support came within the direct purview of the statute of limitations governing the revival and enforcement of judgments. Huff, 648 S.W.2d at 289; In re T.L.K., 90 S.W.3d 833, 837 (Tex. App.–San Antonio 2002, no pet.). The Texas Legislature subsequently amended the Family Code, codifying the court’s ruling and enacting a statutory ten-year provision: “The court may not enter a judgment for unpaid child support payments that were due and owing more than 10 years before the filing of the motion to render judgment under this section.” TEX. FAM. CODE ANN. §  14.41(b) (Vernon Supp. 1994); In re T.L.K., 90 S.W.3d at 837-38.

However, the Legislature [*4]  amended the applicable statute again in 1995, recodifying section 14.41(a) as section 157.263 and section 14.41(b) as section

157.005(b) and removing the ten-year limitation. TEX. FAM. CODE ANN. § §

157.005, 157.263 (Vernon 2003). The current version of section 157.263 provides:
§  157.263 Confirmation of Arrearages
(a) If a motion for enforcement of child support requests a money judgment for arrearages, the court shall confirm the amount of arrearages and render one cumulative money judgment.
(b) A cumulative money judgment includes:
(1) unpaid child support not previously confirmed. . .
(3) interest on the arrearages; and
(4) a statement that it is a cumulative judgment. Id. at §  157.263.
The current version n2 of section 157.005(b) reads:
(b) The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support until the date all current child support and medical support and child support arrearages, including interest and applicable fees and costs, have been paid. Id. at §  157.005(b).

n2 Prior to a 1999 amendment, section 157.005(b) placed a limitation on the confirmation of child support arrearages, confining the court’s jurisdiction to four years after the child reached the age of 18. The 1999 amendment removed this limitation.

[*5]
Under the Family Code provisions as modified, the Civil Practices and Remedies Code dormancy statutes are inapplicable to this case. The trial court retained its jurisdiction over Rico’s case because all child support payments had not been made. Id. Under the current version of the Family Code, the court was permitted to confirm the amount of arrearages with a cumulative money judgment. Id. at §  157.263. Sections 31.006 and 34.001, then, would apply only to the trial court’s 2002 cumulative money judgment and not to the 1972 original divorce judgment. See In re T.L.K., 90 S.W.3d at 837-39 (finding that the ten-year dormancy period does not run from the child support payment’s due date); In re Kuykendall, 957 S.W.2d 907, 910 (Tex. App.–Texarkana 1997, no pet.) (holding that “the ten-year dormancy period begins to run upon the signing of [the] judgment confirming arrearages, and not from the due date of the individual payments); In re S.C.S., 48 S.W.3d 831, 835-36 (Tex. App.–Houston [14th Dist.] 2001, pet. denied). Accordingly, we overrule Rico’s only issue.

The judgment of the trial court is affirmed.
Paul W. Green,  [*6]  Justice

Law Offices of Sinkin & Marvel - 866-933-CHILD(2445) | 210-732-6000
105 W. Woodlawn Ave. San Antonio, TX 78212

The trial court awarded $94,666.14 in child support arrearages from a 1968 divorce in favor of the child support obligee against the child support obligor.  The child support obligee sought child support enforcement and child support collection by a cumulative money judgement.

The child support obligor argued the statute of limitations has run on this remedy.  The appellate court agreed with the child support obligee, the ten year time period for a cumulative money judgement is not a statute of limitations on child support enforcement and child support collection.

48 S.W.3d 831
(Cite as: 48 S.W.3d 831)

Court of Appeals of Texas,
Houston (14th Dist.).

In the Interest of S.C.S. and M.D.S.

No. 14-00-00060-CV.

May 31, 2001.
Rehearing Overruled July 5, 2001.

Mother brought an action to reduce the amount of child support arrearages father owed to a cumulative money judgment. The 257th District Court, Harris County, Linda Motherall, J., rendered judgment against father in the amount of $94,666.14. Father appealed. The Court of Appeals, Yates, J., held that: (1) statute pertaining to time limitations for the enforcement of a child support obligation was not a statute of limitations, and (2) Civil Practice and Remedies Code’s residual ten year statute of limitations was inapplicable to action to reduce child support arrearages to judgment and for enforcement of judgment.

Affirmed.

Wittig, J., filed a dissenting opinion.

West Headnotes

[1] Child Support 470
76Ek470 Most Cited Cases

[1] Child Support 472
76Ek472 Most Cited Cases

Statute pertaining to time limitations for the enforcement of a child support obligation was not a statute of limitations; rather, the statute addresses how long a court possessed jurisdiction to enforce its orders.  V.T.C.A., Family Code § 157.005.

[2] Child Support 472
76Ek472 Most Cited Cases

Civil Practice and Remedies Code’s residual ten year statute of limitations was inapplicable to action to reduce child support arrearages to judgment and for enforcement of judgment after children had turned 18; legislature did not intend to allow a parent only ten years to enforce a child support obligation.  V.T.C.A., Civil Practice & Remedies Code §§ 31.006, 34.001.

[3] Equity 72(1)
150k72(1) Most Cited Cases

In order to prevail on a claim of laches, a party must show (1) there was an unreasonable delay by the other party in asserting a legal or equitable right, and (2) the party asserting laches made a good faith change in position to his detriment because of the delay.

[4] Equity 84
150k84 Most Cited Cases

The burden of proving the elements of laches is on the one asserting the defense.

[5] Child Support 539
76Ek539 Most Cited Cases

Father failed to preserve for appellate review his claim that mother’s cause of action to reduce father’s child support arrearages to judgment was barred by the doctrine of laches, where father failed to present any evidence in the trial court that the claim was barred by laches.
*832 W. Thomas Liddell, Houston, for appellants.

Steven Alan Sinkin, San Antonio, for appellees.

Panel consists of Justices YATES, WITTIG, and FROST.

MAJORITY OPINION

YATES, Justice.

This is an appeal from the trial court’s cumulative judgment for child support arrearage entered in favor of Patricia Sprouse, the appellee and mother of S.C.S. and M.D.S., and against Jesse Richard Sprouse, the appellant and father of the children.  In three points of error, appellant complains that (1) because section 157.005 of the Texas Family Code is a statute of limitation, the recent amendment extending indefinitely the period of enforcement for past due child support violates the Texas Constitution’s prohibition against ex post facto laws or, (2) alternatively, Patricia Sprouse’s action is barred either by laches or by a ten-year statute of limitation.  We affirm the trial court’s judgment.

I. BACKGROUND AND PROCEDURAL HISTORY

Jesse and Patricia Sprouse were divorced for the first time in Jefferson County, Texas, in 1968. [FN1]  At the time, they had two children, S.C.S., born November 22, 1965, and M.D.S., born September 30, 1967.  The court ordered Jesse to pay monthly child support for each child until the “youngest of such minor children shall have attained the age of eighteen years….” The amount of support was fixed by the order at $90.00 per month.  *833 Then, in March 1971, Jesse and Patricia remarried, separated later that year, and divorced for the second and final time in November 1973.  The second divorce was finalized in Louisiana and was silent as to whether Jesse was obligated to pay child support.  In 1975, Patricia sought and received a modification of the Louisiana divorce decree to include an obligation that Jesse pay child support.  This order, entered as a consent judgment, required Jesse to pay $130.00 per month for the children’s support on the “30th day of each successive month thereafter.”  In 1980, Patricia filed a motion to modify in a suit affecting the parent-child relationship (“SAPCR”) in Harris County, Texas.  The SAPCR court entered a final order requiring that Jesse pay $250.00 per month in two equal installments.

FN1. The facts, unchallenged by either party, are taken from the lower court’s findings of facts.

Evidently Jesse never paid anything towards his children’s support, [FN2] and in 1999, Patricia sought to reduce the amount in arrears to a cumulative money judgment.  At the same time, she sought to have the arrears enforced through a withholding order.  Then, on August 18, 1999, Patricia non-suited Jesse.  On September 1, 1999, the new version of section 157.005 of the Family Code went into effect and on September 10, 1999, Patricia filed a second motion for cumulative money judgment.  At the time the court below rendered judgment, the amount in arrears, including interest, stood at $94,666.14.

FN2. We are not unmindful of the fact that there was, apparently, a period of approximately eight months in 1973, after Jesse and Patricia were re-married but before they separated again, during which the children lived with their father.

II. Section 157.005 of the Family Code

In his first two points of error, appellant contends that, becausesection 157.005 of the Family Code acts as a statute of limitation, he had a vested right to not pay child support arrearage prior to the time the 1999 legislative amendments went into effect;  hence, the new version of section 157.005 constitutes a prohibited ex post facto law under the Texas Constitution. Alternatively, he argues that, if we conclude the new version of section 157.005 is not a statute of limitation, we should look to the residual statute of limitation found in the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. §§ 31.006, 34.001 (Vernon 1998).

The current version of section 157.005(b) reads, in relevant part:
The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support until the date all current support and medical support and child support arrearages, including interest and any applicable fees and costs, have been paid.
Tex. Fam.Code Ann. § 157.005(b) (Vernon 1999) (emphases added).  Prior to this amendment, section 157.005 provided that “the court retains jurisdiction … if a motion for enforcement … is filed not later than the fourth anniversary after the date (1) the child becomes an adult….” Tex. Fam.Code Ann. § 157.005(b)(1) (Vernon 1995).  Appellant argues, therefore, that his right to not pay the amount in arrears vested four years after his children turned eighteen, i.e., on November 22, 1987 and September 30, 1989, respectively.

[1] Section 157.005 and its predecessors, however, have been consistently interpreted by a majority of jurisdictions in this State as defining the contours of the court’s jurisdiction, not as a time frame within which a party must file a claim or forever lose the right to do so. [FN3] See, e.g., *834 In re Cannon, 993 S.W.2d 354, 356 n. 2 (Tex.App.–San Antonio 1999, no pet.) (holding “157.005 limits the trial court’s power to hear a case;  it is not a statute of limitations”);  In re Kuykendall, 957 S.W.2d 907, 911 (Tex.App.–Texarkana 1997, no pet.) (holding that the time limits are “not in the nature of a statute of limitations, but [are] instead a limitation on the power of the trial court to hear the case.”);  In re M.J.Z., 874 S.W.2d 724, 726 (Tex.App.–Houston [1st Dist.] 1994, no writ) (holding that, unlike a statute of limitation, the four-year period does not run from the accrual of a cause of action, but from the time the court’s jurisdiction normally ends);  In re C.L.C. & S.D.C., 760 S.W.2d 790, 792 (Tex.App.– Beaumont 1988, no writ) (holding that there is no tolling because the statute is jurisdictional);  Sandford v. Sandford, 732 S.W.2d 449, 450 (Tex.App.– Dallas 1987, no writ) (finding trial court lost jurisdiction to cite husband for contempt on child support due more than ten years before wife filed motion). [FN4]  In view of this authority, we now hold that 157.005 is not a statute of limitation;  rather, it addresses how long a court has jurisdiction to enforce its orders. [FN5]

FN3. We are aware of language in our opinion in Attorney General v. Litten which suggests differently.  999 S.W.2d 74 (Tex.App.–Houston [14th Dist.] 1999, no pet.).  However, that case presented the issue whether the trial court erred in dismissing an action to register and enforce the support order of another state pursuant to a choice of law provision of the Uniform Interstate Family Support Act (“UIFSA”).  Id. at 77 (citing Tex. Fam.Code Ann. § 159.604(b) (Vernon 1996)).  In apparently mixed language, we held that, “[i]n accordance with the clear language in Section 159.604(b), the 10-year Missouri statute of limitation applies here instead of the four year limitation period provided by Section 157.005(b).  Therefore, it was error for the trial court to dismiss this cause based on lack of jurisdiction under Chapter 157.” Id. (emphases added).  However, that language is merely dicta, because earlier in the opinion, after finding subchapter G of section 159 set forth the procedures for the registration and enforcement of a UIFSA order, we held there was no statutory basis for applying Chapter 157 to a UIFSA action.  Id.

FN4. See also Du Pre v. Du Pre, 271 S.W.2d 829, 831 (Tex.Civ.App.–Dallas 1954, no writ) (rejecting retroactive law argument because amendment to Family Code “imposed no new legal liability on the father, but merely provided a more effective remedy or means of enforcing the existing legal liability.”);  accord Harrison v. Cox, 524 S.W.2d 387, 391-92 (Tex.Civ.App.–Fort Worth 1975, writ ref’d n.r.e.) (holding laws affecting only a remedy are not within scope of constitutional prohibition against retroactive law, thus enforcement of child support arrearage does not impair any vested rights the father may have had);  see also Ex parte Wilbanks, 722 S.W.2d 221, 223-24 (Tex.App.–Amarillo 1986, orig. proceeding) (holding new Family Code section was purely remedial statute governing the time of enforcing the existing legal liability for child support by contempt, thus not an ex post facto law).

FN5. In In re Digges, the San Antonio Court of Appeals noted that “the [1997] amendments [to section 158.102] allow the income withholding remedy for collecting current and past due support to continue indefinitely but do not affect the four year limitations period on obtaining an arrearage judgment.”  981 S.W.2d 445, 446 n. 1 (Tex.App.–San Antonio 1998, no pet.) (citing John J. Sampson & Harry L. Tindall, Texas Family Code Annotated 481 (1998)).  Sampson and Tindall’s 2000 comment to section 158.102 reads, “[w]ith the elimination of that limitation [on the court's jurisdiction], both the judgment remedy and the income withholding remedy for collecting current and past due support, plus interest, continue indefinitely.”  John J. Sampson & Harry L. Tindall, Texas Family Code Annotated 570 (2000).
And their comment to the current version of section 157.005 reads, “[i]n conforming state law to federal law, the legislature has essentially eliminated the limitation period for confirmation of arrearages.  An action for confirmation and judgment may be brought for as long as support payments, interest, fees and costs are unpaid. The 1999 amendment makes the money-judgment remedy established in this section consistent with the income withholding remedy found in § 158.102.” Id. at 541.  In other words, the law now treats deadbeat parents evenly, without regard to whether he or she is employed (income withholding) or not (money-judgment).

*835 Our holding is consistent with another intermediate appellate court’s interpretation of a similar statute defining a trial court’s contempt jurisdiction.  Ex Parte Wilbanks, 722 S.W.2d 221 (Tex.App.–Amarillo 1986, orig. proceeding).  The issue there was whether a new amendment rejuvenated a court’s contempt jurisdiction. [FN6]  Id. at 222.  The court upheld the conviction against a challenge that the law was an ex post facto application because “laws which affect only a remedy, such as providing a limitation period, for enforcing substantive rights do not come within the scope of the constitutional provision against retroactive laws.”  Id. at 224.  This same reasoning applies here. [FN7]

FN6. The Wilbanks’s son turned 18 in July 1985.  Effective September of that year, the Legislature extended a trial court’s contempt jurisdiction “if a motion for contempt for failure to comply with a court’s child support order [was] filed within six months after … the child becomes an adult.”  Id. at 223 (citing Tex. Fam.Code Ann. § 14.40(b)(1) (Vernon 1986)).  Under the statutory provision that existed when their son turned 18, the court’s contempt jurisdiction expired when the child became an adult, not six months afterwards.  Id.

FN7. See also Moore v. State, 677 S.W.2d 550, 553 (Tex.App.– Amarillo 1983, pet. ref’d), cert. denied 469 U.S. 856, 105 S.Ct. 182, 83 L.Ed.2d 116 (1984) (holding that creation of criminal jurisdiction in intermediate appellate courts did not work as an ex post facto law against defendant who filed appeal with high court three days prior to change in law).

Appellant argues that we should be persuaded by the Beaumont court’s decision in In re A.D., 8 S.W.3d 466 (Tex.App.–Beaumont 2000, pet. granted).  In that case, the court held that an administrative writ of withholding for child support arrearage became time barred four years after the youngest child turned 18, and that issuing an administrative writ of garnishment to an already-barred claim violated article I, section 16 of the Texas Constitution.  Id. at 467. [FN8]  As we have already explained, however, a majority of courts have held that section 157.005 is not a statute of limitation;  rather, it limits a court’s jurisdiction to hear a case.  Because it is a jurisdictional provision, it does not confer any vested right, unlike a statute of limitation.  Compare Baker Hughes, Inc. v. Keco R & D, Inc., 12 S.W.3d 1, 4-5 (Tex.1999).

FN8. Indeed, if appellant’s argument is correct, then In re A.D. overruled sub silentio In re C.L.C. & S.D.C., a decision from that court holding there is no tolling because the statute is jurisdictional, leading to a result inconsistent with the majority of Texas courts of appeals which have decided this issue.

In the alternative, appellant argues that, if section 157.005 has no statute of limitation, then we should look to the so-called residual statute of limitation found in the Civil Practice and Remedies Code. In support of this argument, he relies on Huff v. Huff. 648 S.W.2d 286 (Tex.1983).  In re Kuykendall explains why reliance on Huff is inappropriate in light of the statutory changes enacted since Huff was decided.  957 S.W.2d at 910. For example, in the same series of changes that removed the ten-year limitation for enforcement of “unpaid and owing” child support, the Legislature eliminated as a prerequisite to enforcement the language “and owing” from the statute. Id. Under the rule that existed when Huff was decided, missed child support payments older than ten years were no longer considered “owing.” Id. Accordingly, the court interpreted these changes “to reflect a legislative intent to permit a court to render the confirming *836 judgment for all unpaid child support,” not just the last ten years’ worth.  Id. (emphasis added).  Finally, the court found that “the general ten-year dormancy statute then comes into play only when the arrearages are coalesced into a judgment confirming arrearages,” and held that “the ten-year dormancy period then begins to run upon the signing of [a] judgment confirming arrearages, and not from the due date of the individual payments.”  Id. We agree.

[2] Accepting appellant’s interpretation leads to one of two conclusions.  One conclusion is that the Legislature performed a futile act when it stripped the requirement that enforcement actions be brought within ten years from the date of the original judgment.  For instance, suppose a court orders a father to pay child support until the child’s eighteenth birthday, as the court did here.  The father does so, but after ten years of making timely payments, he decides to stop.  According to appellant’s argument, the original judgment would now be dormant.  Thus, the mother, who prior to this time had no reason to “enforce” the child support order, would now be unable to do so.  This cannot be the result the Legislature intended, particularly in view of the legislative trend favoring easier enforcement of child support obligations. [FN9]  Alternatively, it leads to the conclusion that the mother would have ten years from the time of the missed payment to file a motion to enforce. However, if this were true, then Texas would return to the rule the Legislature abolished following the supreme court’s decision in Huff–that missed child support payments were no longer “owing” if more than ten years old. [FN10] We cannot accept this interpretation as this also “violates the fundamental tenet that the legislature is never presumed to do a useless act.”  Russell v.. Russell, 865 S.W.2d 929, 936 (Tex.1993) (Gonzalez, J., dissenting). Appellant’s first two points of error are overruled.

FN9. See, e.g., Sandford, 732 S.W.2d at 450 (discussing the early evolution of child support enforcement legislation).  The dissent suggests that, because we “seemingly approve” of Sandford, our result should be different here.  But the dissent misconstrues Sandford.  In that case, the statute considered by the court–14.41(b)–contained a restriction on the court’s jurisdiction:  if a party failed to bring a claim for past-due child support, and the missed payment was more than ten years owing, then the court had no power to render a judgment for that payment.  Id. at 450.  Nevertheless, Sandford held that, if this forerunner to section 157.005(a) were a statute of limitation, the husband would have waived the argument by failing to plead it in the trial court.  Instead, it found that 14.41(b)’s “wording, atypical of statutes of limitation, restricts the power of the court to enter judgment….” Id. at 450-51 (emphasis added).  Accordingly, the court affirmed the judgment of the trial court to include only those missed payments that were more than ten years owing. Id. at 451.

FN10. Even Sandford recognizes that, with the legislative changes to the Family Code, Huff is no longer controlling authority.  Id. at 450.
It is true that before this change in the law, actions to reduce unpaid child support to judgment were … subject to what [is now section 31.006 of the Texas Civil Practice and Remedies Code, but n]ow, however, such actions are … subject to … section 14.41(b).
Id. (citing Huff, 648 S.W.2d 286 (Tex.1983)).

III. The Doctrine of Laches

[3][4][5] In his final point of error, Jesse claims that Patricia’s claim is barred under the doctrine of laches.  In order to prevail on a claim of laches, a party must show (1) there was an unreasonable delay by the other party in asserting a legal or equitable right, and (2) the party asserting laches made a good faith change in position to his detriment because of the delay.  *837Caldwell  v. Barnes, 975 S.W.2d 535, 538 (Tex.1998). The burden of proving these elements is on the one asserting the defense. Jamail v. Stoneledge Condo. Owners Ass’n, 970 S.W.2d 673, 676 (Tex.App.– Austin 1998, no pet.).  Because Jesse presented the trial court with no evidence in support of his assertion that Patricia’s claim is barred by laches, he has waived this point of error.  See, e.g., Castillo v. Neely’s TBA Dealer Supply, Inc., 776 S.W.2d 290, 292-94 (Tex.App.–Houston [1st Dist.] 1989, writ denied) (holding affirmative defense of ERISA preemption was waived by a defendant who did not plead the defense and offered no evidence in support thereof).  Accordingly, appellant’s final point of error is overruled.

Affirmed.

WITTIG, Justice.

I respectfully dissent from the majority opinion on three distinct grounds.  First the application of Family Code section 157.005 is retroactive and consequently prohibited by the Texas Constitution.  Second, the trial court had lost jurisdiction to hear this case and therefore could not “retain” what it did not have.  Third, the majority effectively holds that the supreme court’s decision in Huff v. Huff, 648 S.W.2d 286 (Tex.1983), is no longer controlling in Texas and ignores a residual 10-year limitations statute.

Appellant argues the new section 157.005 of the Family Code constitutes a prohibited retroactive law under the Texas Constitution.  The majority mistakenly dismisses this claim summarily.  Their logic seems to be that  section 157.005 is only jurisdictional, ergo it is not ex post facto, or more properly, retroactive.  The meaning of our Texas Constitution, Article I, Section 16, was addressed by the Supreme Court of Texas long ago in Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (1887).  The logic and holdings undermine the majority opinion in a twofold way.

First, for obvious constitutional concerns, “it is almost universally accepted as a sound rule of construction that a statute shall have only a prospective operation” unless its terms are clearly retroactive.  Id. at 251.  If a statute is interpreted prospectively, we eliminate many of the concerns about retroactive laws.  This, in turn, supports my later offering that the trial court could not “retain” a jurisdiction it had already lost.

More to the point, Article 1, Section 16 of our constitution, and all the state constitutions adopted in Texas, provide “no bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts shall be made.”  Id. at 252.  Our constitution is not limited merely to obligations of contract, already protected by the Fourteenth Amendment of the U.S. Constitution.  Id. 253.  The plain language applies not just to vested property rights, rather “it must be held to protect every right, although not strictly a right to property.”  Id. Every right which accrued prior to passage of a new law, “if permitted retroactive effect, would take away the right.”  Id. A right is a well-founded claim, recognized or secured by law.  Id. It includes not only enforcement of a claim, but also the right to “resist the enforcement of a claim urged by another.”  Id.

The Texas Supreme Court clearly enunciated:
[I]f an attempt were made by law, either by implication or expressly to revive causes of action already barred, such legislation would be retrospective, within the intent of the prohibition, and would therefore be wholly inoperative.  We have no doubt that the law is thus correctly stated.
Id. at 255.

While the same court referred to a statute of limitation as an example, both the *838 clear language of the constitution and the Supreme Court’s interpretation is strikingly expansive, and patently not limited to a retroactive limitations statute.  Therefore, whether we view article 157.005(b) as jurisdictional or as removing an accrued limitation of four years after the child reaches eighteen, the effect is the same.  In August 1999, when Patricia first filed against Jesse, her action was clearly barred by the family code. When she refiled in September 1999, her barred claims were retroactively revived.  Thus, the application of the new article 157.005 was retrospective within the ambit of the constitutional prohibition.  Id. Nor does it matter whether the statute be considered procedural or substantive.  See Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), (holding that legislature not immune from scrutiny under ex post facto clause simply by the label of “procedural;” subtle violations are no more permissible that overt ones).  Justice Hecht likewise leaves little doubt in a situation not unlike ours:
The rule is well settled that procedural statutes may apply to suits pending at the time they became effective, but even a procedural statute cannot be given application to a suit pending at the time it becomes effective if to do so would destroy or impair rights which had become vested before the act became effective.  In this connection it is the settled law that, after a cause has become barred by the statute of limitation, the defendant has a vested right to rely on such statute as defense.
See Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4  (Tex.1999) (citations omitted).  The Texas Supreme Court goes on to hold a statute extending the limitations period already barred violates the Texas constitution’s prohibition against retroactive laws.  Id. But as the Dallas Court of Appeals aptly noted in Sandford v. Sandford, 732 S.W.2d 449, 450 (Tex.App.–Dallas 1987 no writ), section 14.41(b), [FN1] restricts the power of the court to enter judgments contrary to its provisions.  “It is not procedural but substantive.”  Id. Therefore, the last legislative change was a change in the substance of the law.  Before September 1, 1999, the court was without power, substantive or jurisdictional, to award a whiskered 19 or 29 year old past-due child support arrearage.  After September 1, 1999, the court could conceivably prospectively have the power or jurisdiction to hear ancient support arrearages, subject both to the constitutional limitation against retroactive laws, and other applicable limits.  I would sustain the retroactive constitutional challenge by appellant.

FN1. Section 14.41 is a predecessor statute of current section 157.005.  The majority seemingly approves of Sandford.

The 1999 legislative change to 157.005(b) seeks to increase retention or residual jurisdiction.  As the majority recognizes, prior to the 1999 amendment to section 157.005, the court’s jurisdiction to hear this case would have expired four years after each child became an adult. [FN2]  Under the current version of 157.005(b), trial courts now “retain jurisdiction to confirm the total amount of child support arrearages….” Tex. Fam.Code Ann. § 157.005(b) (emphasis added).  A court may no more retain what it does not possess than one *839 may return to a place he has never been.  The trial court’s power to hear this case ended 4 years after each child turned eighteen.  In In re Cannon, the San Antonio Court of Appeals decided a similar issue under the former version of section 157.005(b).  993 S.W.2d 354 (Tex.App.–San Antonio 1999, orig. proceeding).  There, the court held that, because a motion to enforce was filed within four years of one child’s eighteenth birthday, the trial court retained jurisdiction to confirm the arrearages as to that child, but the court had no jurisdiction to confirm the arrearages for the child who turned eighteen more than four years before the motion to enforce was filed. Id. at 356.  The same logic should apply here. There is no expression in the legislation to retrofit the courts with jurisdiction they no longer have or already lost.  Recall, statutes should be construed prospectively.  Tex. Gov’t Code Ann. § 311.022 (Vernon 1998) (statutes are presumed to be prospective in operation unless expressly made retrospective).  Our job as judges is to apply the law as written, not to make law.  Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892).  We need only apply the plain language of the statute–retain, not retroactively regain. Because both children turned eighteen many years before the motion to enforce was filed, I would hold that section 157.005(b) did not operate to revive the court with jurisdiction already lost.  Accordingly, the trial court was without jurisdiction to grant appellee’s motion.  An order entered after a court has lost jurisdiction is void.  In re Powers, 974 S.W.2d 867, 869  (Tex.App.–Houston [14th Dist.] 1998, orig. proceeding).

FN2. Indeed, it is precisely for this reason that appellee’s counsel candidly conceded at oral argument that the original effort to enforce the arrearage was abandoned, i.e., because the trial court had no jurisdiction over this case before the 1999 amendment went into effect.  But who can seriously argue the four-year jurisdictional limit was not also a statute of limitation?

My third point of departure from today’s opinion rests on the majority’s failure to recognize the continued vitality of Huff and section 34.001 Tex. Prac & Civ. Rem Code. In Huff, the supreme court held that “[t]he ten- year statute of limitations must therefore apply to § 14.09(c) motions….” Huff, 648 S.W.2d at 289. [FN3]  Furthermore, as stated in Huff, “[a]s motions to revive and enforce portions of a final judgment awarding child support, § 14.09(c) actions come within the direct purview of the statute of limitations governing the revival and enforcement of judgments, Art. 5532, the ten-year statute” Id. Even though the legislature failed to mention the ten- year statute of limitations in section 157.005(b), old Article 5532, now Civil Practice & Remedies Code section 34.001, [FN4] still applies since this is an action to revive and enforce judgments.  The reasons are fortified, not weakened, if the family code section is “only jurisdictional,” as the majority argues.  Section 34.001(a) limits the revival of judgment to ten years, thereby effectively giving section 157.005(b) actions a ten-year statute of limitations unless otherwise renewed.  One 10 year period can be stacked upon yet another 10 year period.  *840 Tex. Civ. Prac. & Rem.Code Ann. § 34.001(b).  But this was not done in a timely manner. [FN5]  The mandate of the Civil Practice and Remedies Code is clear:  “If a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived.”  Id. Section 34.001(a).  There simply is no exception for family law cases;  they are, after all, “courts of record.”  Nineteen years is just too long. [FN6]

FN3. In language similar to today’s version of 157.005(b), section 14.09(c) provided that
On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days’ notice to the defaulting party of his failure or refusal to carry out the terms of the order.  The judgment may be enforced by any means available to the enforcement of judgments for debts.
Act of May 24, 1973, 63d Leg., R.S., ch. 543 § 14.09, 1973 Tex. Gen. Laws 1425-26, amended by Act of June 18, 1999, 76th Leg., R .S., ch.  556 § 15-1999 Tex. Gen. Laws 3058, 3062.

FN4. In 1995, Article 5532 was repealed and replaced with section 34 .001.  See also Tex. Civ. Prac. & Rem. 31.006.  (Technically, Article 5532 was replaced by Tex. Civ. Prac. & Rem.Code Ann. § 31.006 (Vernon2000)).  However, the ten year limiting language was moved to Tex. Civ. Prac. & Rem.Code Ann. § 34.001 (Vernon 2000)

FN5. The majority cites Kuykendall, 957 S.W.2d. 907, 910. However, I believe that case, heavily relied upon by the majority, is erroneously decided.  The legislature followed Huff and even codified certain aspects of the opinion.  However, nowhere does the legislature express any intent to eliminate either section 34.001 or the holding in Huff. Nor should it.  As wisely expressed by Justice Hankinson in Apex Towing v. Tolin, 41 S.W.3d 118 (Tex.2001): We continue to believe, however, that in the area of limitations, bright- lines rules generally represent the better approach, and that the policy reasons underlying the Hughes rule appropriately balance the competing concerns of the need to bar stale claims and avoid prejudice to defendants yet preserve a reasonable opportunity for plaintiffs to pursue legitimate claims.
41 S.W.3d 118, at 121-22.
I would also note, that the supreme court in addressing The Interest of A.D., 8 S.W.3d 466 (Tex.App.–Beaumont 2000, pet. granted) could also consider the impact of today’s decision that seeks to retroactively eliminate all limitation periods for child support arrearage.

FN6. This is especially true in child support cases where the burden of proof quickly and easily shifts to the respondent to prove the actual payments made.  Here the “children” are now 35 and 33 years old!

Where there are undisputed facts, a defendant may establish that the plaintiff’s claim is barred by the statute of limitations as a matter of law. Flukinger v. Straughan, 795 S.W.2d 779, 786 (Tex.App.–Houston [14th Dist.] 1990, writ denied) (citing Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex.App.–Houston [1st Dist.] 1984, writ ref’d n.r.e.)).  Because the facts on this point are undisputed, the trial court erred by not finding, as a matter of law, that the ten-year statute of limitations applied and barred appellee’s claim for relief under her motion to enforce.  Judgment on the appellee’s suit affecting the parent-child relationship was entered in 1980.  The appellant failed to pay support per the judgment.  It was not until 1999 that the appellee brought suit for the monies owed her by the appellant.  Under the majority’s holding, petitioner could wait until the “children” are 70 or 80 years old.  And by the same logic of today’s majority holding, the limitations and requirement of claims found in probate and administrative law, would not pertain.

Appellee non-suited the appellant, then, after the state legislature passed  section 157.005(b), renewed her action against the appellant.  This was clearly, although erroneously, an attempt to defeat the prior limits of the courts power.  Because the extant ten-year statute of limitations is based on section 34.001 of the civil practice and remedies code and not section 157.005(b) of the family code, the appellee’s action was barred and is still barred.

For these reasons, I would reverse and render the judgment of the trial court.

Law Offices of Sinkin & Marvel - 866-933-CHILD(2445) | 210-732-6000
105 W. Woodlawn Ave. San Antonio, TX 78212

The trial court awarded $111,000.73 in child support arrearages from a 1978 divorce in favor of the child support obligee against the child support obligor.  The child support obligee sought child support collection and child support enforcement by a writ of withholding and child support liens.

This child support obligor argued the child support obligee did not have sufficient evidence to prove he owed unpaid child support.  The appellate court disagreed, holding a divorce decree and a payment history are sufficient to establish unpaid child support.

RAYMOND C. HENNIGAR, Appellant v. SUSAN CUNNINGHAM, Appellee

NO. 14-10-00937-CV

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

2011 Tex. App. LEXIS 9353

November 29, 2011, Memorandum Opinion Filed

PRIOR HISTORY:  [*1]
On Appeal from the 310th District Court, Harris County, Texas. Trial Court Cause No. 1978-27379.

COUNSEL: James N. Higdon of San Antonio, TX, for appellants.

Karen L. Marvel of San Antonio, TX; Brandon Jen Wong of San Antonio, TX, for appellees.

JUDGES: Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.

OPINION BY: Tracy Christopher

OPINION

MEMORANDUM OPINION
Appellant Raymond C. Hennigar challenges the trial court’s judgment granting his former wife’s request for a lien and writ of withholding for past-due child support. Because the amount of the judgment is supported by the record and Hennigar’s remaining complaints have not been preserved, we affirm the trial court’s judgment.

I. Factual and Procedural Background
Hennigar and appellee Susan Cunningham were married in 1972 and had a son two years later. They divorced in 1978, and the trial court appointed Cunningham managing conservator. Hennigar was ordered to pay child support of $100 per month, in two $50 installments, into the child-support division of Harris County Child Welfare. As of January 2010, the registry for that division had recorded no payments.
On January 6, 2010, Cunningham filed a notice of child support lien and a notice of application  [*2] for judicial writ of withholding. On January 21, 2010, acting pro se, Hennigar moved to vacate the lien and dismiss the action as time-barred. Cunningham responded by asking the trial court to foreclose on the lien, determine the amount of unpaid child support, and award attorney’s fees. An initial hearing before an associate judge was set for February 17, 2010.
Twenty-five days before the hearing, Cunningham served interrogatories, a request for production of documents and a request for disclosure in which, among other things, she asked Hennigar to produce evidence of payment, to state the legal theories on which he would rely, and to identify persons with knowledge of relevant facts. Because the requests were served less than 30 days before the hearing, Hennigar did not respond.1 At the hearing, the associate judge ruled in Cunningham’s favor, granting her request for a lien and a writ of withholding and awarding her attorney’s fees and $108,442.66 in past-due child support.

1   See Tex. R. Civ. P. 194.1-194.2 (requests for, inter alia, disclosure of legal theories and persons with knowledge of relevant facts must be served no later than 30 days before the end of any applicable discovery  [*3] period), 196.1 (applying same rule to requests for production), 197.1 (applying same rule to interrogatories); see id. 190.3(b)(1)(A) (in cases under Family Code, discovery period ends 30 days before the date set for trial).
Hennigar retained counsel and timely requested a de novo hearing before the referring court. In his initial request, he asserted that (1) he owed no child support because the State possessed no record of arrearages; (2) Cunningham’s claim was rendered dormant by statute, and a statutory amendment removing child support from the general dormancy provision was unconstitutional; (3) Cunningham’s claim was barred by the equitable defense of laches; (4) Cunningham’s notice of lien and the associate judge’s order were defective; and (5) the Family Code’s lien-notice provision was unconstitutional. The de novo hearing was set for April 15, 2010.
Twenty-three days before the scheduled hearing, Cunningham served an additional request for production and Hennigar responded that the request was untimely. The hearing was subsequently rescheduled to June 2, 2010. In the interim, Hennigar amended his request for de novo hearing twice, supplementing his constitutional arguments and  [*4] requesting attorney’s fees.
On the day of the de novo hearing, Cunningham filed a motion to exclude the evidence and witnesses that Hennigar had failed to identify in response to her requests. Although Hennigar maintained that no answer was required because the discovery requests were untimely, he nevertheless moved for an extension of time in which to answer the discovery, and he served his responses the same day. The court granted Cunningham’s motion and excluded the evidence and witnesses that Hennigar had failed to identify in response to Cunningham’s discovery requests.
Cunningham also moved to strike the amended portions of the request for de novo hearing on the ground that such a request is analogous to a motion for new trial, and thus, the Family Code should be construed to permit amendments only within the seven-day period allotted for making the initial request. Compare Tex. Fam. Code. Ann. §201.015 (West 2008) (request must specify the issues that will be presented to the referring court and must be filed within seven days of the notice of the associate judge’s ruling) with Tex. R. Civ. P. 329b(a) (motion for new trial must be made within thirty days of judgment) and Moritz v. Preiss, 121 S.W.3d 715, 720-21 (Tex. 2003)  [*5] (holding that amended motion for new trial must be filed within the same thirty days of judgment or it preserves nothing for review). The trial court sustained Cunningham’s motion to strike Hennigar’s amendments to his request for de novo hearing.
At the de novo hearing, Cunningham testified that Hennigar had failed to make regular payments and that she sought $111,000.73. She offered three exhibits to prove that Hennigar owed this amount. Exhibits A and B–the divorce decree and a copy of the Harris County child-support division registry showing no payments made–were admitted. Exhibit C was a chart showing Cunningham’s arrearage calculations; it included a list of all payments due under the child support order, notations of missed payments for some ten years that their son resided with Cunningham, and a combination of payments and possession credits for some four years that their son resided with Hennigar. It totaled the amount owed and applied interest calculations to arrive at a total of $111,395.55. Cunningham’s request of $111,000.73 reflected this figure after “credit[ing Hennigar] for . . . money that was levied from [Hennigar's] bank account” since the associate judge’s ruling  [*6] in February 2010. The trial court admitted Exhibit C “as a shorthand rendition of [Cunningham's] testimony.” On cross-examination, however, Cunningham testified that she did not remember the exact dates that Hennigar had made or missed payments, and Hennigar moved to strike Exhibit C because of Cunningham’s lack of personal knowledge of the events it recorded. The trial court sustained his objection and excluded the exhibit. Cunningham’s counsel then testified as an expert witness that “[w]hen Ms. Cunningham came and met with us, she specifically told us about the possession credit . . . [a]nd she also told us about dates and amounts, and those are reflected in this exhibit.” Hennigar successfully objected to this statement as hearsay. Shortly thereafter, however, Cunningham’s counsel “reurge[d] . . . Exhibit C as a summary of the dates, and the payments, and the amounts due for the [c]ourt and the payments that [Cunningham] has been [sic] given credit for and the possession credit as an aid to the court.” The trial court admitted the portion of the chart showing “those amounts that are due on the interest, but . . . disregard[ed] any payment portion as [Cunningham] could not testify  [*7] to those.”
After the de novo hearing, the trial court granted Cunningham’s request for a child-support lien and writ of withholding for $111,000.73 in arrearages, plus attorney’s fees. Neither party requested findings of fact and conclusions of law.

II. Issues Presented
In three issues, Hennigar challenges the legal and factual sufficiency of the evidence and argues that the trial court reversibly erred in striking his amended request for a de novo hearing and excluding his witnesses.

III. Analysis

A. Evidentiary Sufficiency
In his first issue, Hennigar argues that the evidence is legally and factually insufficient to support the judgment. We review a trial court’s adjudication of child support for abuse of discretion. See In re A.L.S., 338 S.W.3d 59, 65 (Tex. App.–Houston [14th Dist.] 2011, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Under the abuse-of-discretion standard, sufficiency of the evidence is not an independent ground of error, but is a factor  [*8] in assessing whether the trial court abused its discretion. A.L.S., 338 S.W.3d at 65; London v. London, 94 S.W.3d 139, 143-44 (Tex. App.–Houston [14th Dist.] 2002, no pet.). When, as here, no findings of fact and conclusions of law were requested, we presume that the trial court made all findings necessary to support the judgment and will uphold those findings if supported by the record. A.L.S., 338 S.W.3d at 65 (citing Chenault v. Banks, 296 S.W.3d 186, 189 (Tex. App.–Houston [14th Dist.] 2009, no pet.)). In calculating child-support arrearages, however, the trial court’s discretion is very limited. Id. Although the trial court can award certain offsets and credits, it has no discretion to forgive or decrease a past child-support obligation. Id. Thus, in a proceeding to confirm child-support arrearages, the trial court’s calculations must be based on the payment evidence presented. Id.
Although legal and factual insufficiency are not themselves bases for reversal in this case, we address them specifically because they are at the core of Hennigar’s argument that the trial court abused its discretion. In an appeal of a judgment rendered after a bench trial, the trial court’s findings  [*9] of fact have the same weight as a jury’s verdict, and we review the legal and factual sufficiency of the evidence to support them as we would review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In a legal sufficiency challenge, we examine the record in the light most favorable to the judgment and consider whether the evidence at trial would enable a reasonable and fair-minded factfinder to reach the verdict under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not. See id. The evidence is legally sufficient unless (a) there is a complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. Id. at 810. The record contains more than a scintilla of evidence, and thus the evidence is legally sufficient, if reasonable minds could form differing conclusions about  [*10] a vital fact’s existence. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782-83 (Tex. 2001). Conversely, the evidence is insufficient when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). A judgment is factually sufficient unless it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175. 176 (Tex. 2004) (per curiam).
Hennigar challenges the legal sufficiency of the evidence on three bases. First, he argues that there was a complete absence of evidence to support the amount of the trial court’s judgment. At trial, Cunningham testified that Hennigar failed to make regular payments and that she sought $111,000.73, a figure based on the total amount reflected in the admitted portion of Exhibit C. Hennigar claims that this figure was derived solely from the excluded portion of Exhibit C, which documents specific dates on which Hennigar allegedly missed or made payments and credits him with a combination of payments and possession credits for the years that their son lived  [*11] with him. He argues that when the trial court excluded that portion of the exhibit, it “effectively removed the evidence necessary for the trial court to ascertain the amount, if any, of arrearages.” Thus, he claims, there was a complete absence of admissible evidence to support the judgment. This argument merges with Hennigar’s second asserted basis for legal insufficiency–that the trial court was barred by the rules of evidence from giving weight to the excluded portion of Exhibit C, which, as with respect to his first argument, he characterizes as the only evidence offered to prove how much he owed. Hennigar asserts that by basing its judgment on the admitted portion of Exhibit C–which sets forth the total amount owed in missed payments and calculates interest–the trial court necessarily relied upon the excluded portion of the exhibit, from which that total was derived. Hennigar also argues that the trial court was barred from considering the admitted portion of Exhibit C because it was supported only by Cunningham’s attorney’s statements that it accurately reflected the total amount owed–statements, Hennigar claims, that were inadmissible both as improper expert testimony and as  [*12] hearsay. Thus, he argues, the trial court was barred by multiple rules of evidence from giving weight to the only evidence offered to prove how much he owed. He concludes that because the judgment depended solely upon inadmissible evidence–the excluded portion of Exhibit C and the statements by Cunningham’s attorney that the admitted portion was correct–the admissible evidence proving the amount he owed was no more than a scintilla. As to factual insufficiency, Hennigar argues that the judgment, by relying solely upon inadmissible evidence and disregarding his testimony that he made all required payments, was so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
Hennigar assumes that the excluded part of Exhibit C was the sole evidence supporting the judgment; to sustain this assumption, he argues that all other evidence supporting the judgment, such as Cunningham’s testimony and the admitted portion of Exhibit C, implicitly derived from the excluded portion of Exhibit C. He ignores the fact that–in addition to Cunningham’s own testimony–the divorce decree establishes the dates on which Hennigar was obligated to make payments, and the Harris  [*13] County child-support registry shows that he failed to make those payments in the manner required. Those two exhibits, together with a straightforward calculation of interest, would actually have been sufficient to establish that Hennigar owed more than the amount that Cunningham requested, which credits Hennigar with a combination of payments and possession credits for the approximately four years in which their son resided with him.
Viewing the record in the light most favorable to the judgment, the evidence at trial was legally sufficient to support the judgment without resort to the excluded portion of Exhibit C. The judgment was also not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust, and therefore was factually sufficient. Having rejected Hennigar’s challenges to the sufficiency of the evidence, we conclude that the trial court did not abuse its discretion. Accordingly, we overrule Hennigar’s first issue.

B. Amended Requests for De Novo Hearing
Hennigar next argues that the trial court erred in striking his amended requests for de novo hearing. In his initial request, he asserted that (1) he owes no child support because the State  [*14] has no record of the arrearage; (2) Cunningham’s claim is rendered dormant by statute, and a statutory amendment removing claims for unpaid child support from the general dormancy provision is unconstitutional; (3) Cunningham’s claim is barred by the equitable defense of laches; (4) Cunningham’s lien notice and the associate judge’s order are defective; and (5) the Family Code’s lien-notice provision is unconstitutional. In his amended requests, he supplemented his constitutional arguments and requested attorney’s fees. At the de novo hearing, Cunningham moved to strike these amendments. Although her motion was sustained, Hennigar raised his additional constitutional issue in his closing argument without objection.
The only two additions to Hennigar’s last amended request were the constitutional argument, which he actually argued to the court, and a request for attorney’s fees–which, given the outcome of the case, was a moot point. There is thus no basis for Hennigar’s complaint. We therefore overrule his second issue.

C. Exclusion of Witnesses
Finally, Hennigar contends that the trial court erred in excluding “evidence and witnesses” at the de novo hearing. He does not, however, identify  [*15] what evidence was allegedly excluded. Cunningham served discovery requests asking Hennigar to, inter alia, produce evidence of payment, state the legal theories on which he would rely, and identify persons with knowledge of relevant facts. At the de novo hearing, Hennigar testified that he had paid in accordance with his obligations. He further testified that he had kept records of his payments for years but had discarded them after his son turned twenty. Thus, Hennigar did produce evidence of payment–his own testimony that he had paid. He was also permitted, in his closing argument, to state multiple legal theories on which he relied. The only testimony Hennigar specifically identifies on appeal as excluded is that of certain witnesses who had testified at his initial hearing before the associate judge.
We will not reverse a judgment based on the exclusion of testimony unless (1) the trial court abused its discretion in excluding the evidence, and (2) the error probably resulted in an improper judgment. Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex. App.–Houston [14th Dist.] 2006, pet. denied). To preserve the complaint that the trial court reversibly erred in excluding a witness’s  [*16] testimony, a litigant must make an offer of proof. Ludlow v. DeBerry, 959 S.W.2d 265, 270 (Tex. App.–Houston [14th Dist.] 1997, no pet.). Without evidence of the substance of the testimony, we cannot determine that the trial court reversibly erred in excluding it. Id. Hennigar failed to make an offer of proof, and as a result, there is nothing for us to review. Because we are unable to determine that the trial court reversibly erred, we overrule Hennigar’s third issue.

IV. Conclusion
Having determined that the amount of the judgment is supported by the record and that Hennigar’s remaining complaints have not been preserved, we affirm the trial court’s judgment.
/s/ Justice Tracy Christopher

Law Offices of Sinkin & Marvel - 866-933-CHILD(2445) | 210-732-6000
105 W. Woodlawn Ave. San Antonio, TX 78212

The trial court awarded $286,100.14 in child support arrearages from a 1969 divorce in favor of the child support obligee against the child support obligor.  The trial court also ordered the child support obligor to turn over all community property from his second divorce towards satisfying his child support judgement.

The child support obligor argued the trial court’s order was improper.  The appellate court held there is no statute of limitations for child support collection or child support enforcement.  Also, an unpaid child support obligation does not become dormant.  The defense of laches does not apply to child support collection and child support enforcement.  The child support lien attaches to all the obligors nonexempt property.  Finally, child support enforcement and child support collection may be accomplished by a turnover order.

In re D.T.
Tex.App.-Tyler,2007.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
MEMORANDUM OPINION(PUBLISH)
Court of Appeals of Texas,Tyler.
In the Interest of D.T., K.T. and M.T., Minor Children.
No. 12-05-00420-CV.

Dec. 21, 2007.

Appeal from the 321st Judicial District Court of Smith County, Texas, Carole W. Clark, Judge.

J. Paul Nelson, Jeremy Daniel Coe, for appellant.
Karen L. Marvel, for appellee.
Beau T. Sinclair, for other.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

MEMORANDUM OPINION

JAMES T. WORTHEN, Chief Justice.
*1 Robert Taliaferro and Marcia Taliaferro appeal from trial court orders entered in response to Mabel Sadler’s attempt to collect past due child support from Robert, her ex-husband. Robert attacks the validity of the order on cumulative money judgment for child support arrearages, and both Robert and Marcia attack the validity of the order appointing a receiver to collect property to satisfy the child support lien. We affirm.

BACKGROUND

Mabel Sadler and Robert Taliaferro were married and had three children before divorcing in Smith County in 1969. Although, at the time of the divorce, Robert was ordered to pay $150.00 per month in child support, he failed to do so. In the early 1970s, Mabel attempted to get Robert to comply with the child support order, and he was found guilty of contempt for failure to pay. The record is silent regarding any efforts to encourage his compliance until August 31, 2001 when Mabel filed a motion for cumulative judgment of child support arrearages. An order was entered that year but was set aside in April 2004.

Marcia, Robert’s second wife, intervened in the case, claiming her community interest in Robert’s retirement fund, which Mabel had attempted to garnish. Robert and Marcia were divorced July 15, 2004 in Rusk County. Marcia was awarded a portion of the retirement benefits in the divorce.

The Smith County court entered an order on cumulative money judgment on June 29, 2005 finding that Robert owed $286,100.14 plus interest. On August 29, 2005, the trial court appointed a receiver, ordered Robert and Marcia to turn over all property of their community estate as of the date of their divorce, ordered Robert to turn over all of his real and personal property, and ordered each of them to pay $2,500.00 to the receiver.

1999 AMENDMENT TO FAMILY CODE SECTION 157.005

In his first issue, Robert contends that, based on law in effect prior to September 1, 1999, he had a vested right to not pay the child support arrearage. He argues that Section 157.005, as amended in 1999, acts as a statute of limitation and is a prohibited ex post facto law under which he would be liable for arrearages that he would not have to pay under prior law. Alternatively, he argues, the residual statute of limitations found in the Civil Practice and Remedies Code should control. In his fifth issue, Robert contends the trial court’s order violates the Civil Practice and Remedies Code’s proscription against dormant judgments.

In his fourth issue, Robert asserts that the 1999 amendment violates his due process and due course of law rights as well as protections against retroactive laws under the United States and Texas constitutions. After acknowledging that the Texas Supreme Court has held contrary to his argument on this issue, Robert urges us to sustain his retroactive constitutional challenge.

From April 20, 1995 through August 31, 1999, Family Code Section 157.005(b) provided that the trial court retained jurisdiction to hear a motion for enforcement filed not later than four years after the date the child becomes an adult. Act of April 6, 1995, 74th Leg ., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 177 (amended 1999, 2005, 2007) (current version at TEX. FAM.CODE ANN. § 157.005(b) (Vernon Supp.2007)). Robert and Mabel’s youngest son recently celebrated his fortieth birthday. Therefore, had Mabel attempted to enforce the child support order between April 20, 1995 and August 31, 1999, Robert could not have been held liable.

*2 Effective September 1, 1999, Section 157.005(b) provided that the trial court retained jurisdiction to confirm the total amount of child support arrearages and render judgment for past due child support until the date all support arrearages, including interest and any applicable fees and costs, have been paid. Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 15, 1999 Tex. Gen. Laws 3058, 3062 (amended 2005, 2007).

The United States Constitution bans ex post facto laws. SeeU.S. CONST. art. I, § 9, cl. 3. The Texas Constitution bans ex post facto and retroactive laws. SeeTEX. CONST. art. I, § 16. A statute is retroactive if it takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts a new disability that affects acts or rights accruing before it came into force. In re A.D., 73 S.W.3d 244, 248 (Tex.2002); Turbeville v. Gowdy, 272 S.W. 559, 561 (Tex.Civ.App.Fort Worth 1925, no writ). Robert correctly argues that a statute extending a cause of action’s limitations period cannot apply to revive a suit that would have been time barred before the new statute of limitations took effect because it would impair vested rights and violate the constitutional prohibition on retroactive laws. See In re A.D., 73 S.W.3d at 248. However, Section 157.005(b) is not a statute of limitation.

Statutes providing time limits within which enforcement of an existing support liability may be effected concern the court’s continuing jurisdiction and do not affect substantive rights. Id. at 249.Section 157.005 and its predecessors have been consistently interpreted as defining the contours of the court’s jurisdiction, not a time frame within which a party must file a claim or forever lose the right to do so. In re S.C.S., 48 S.W.3d 831, 833 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).Section 157.005 addresses how long a court has jurisdiction to enforce its orders and is not a statute of limitation. Id. at 834.Accordingly, its application does not impair vested rights. Id. at 835.Section 157.005 is a remedial statute governing the time for enforcing the existing legal liability for child support and is not an ex post facto or retroactive law. See In re A.D., 73 S.W.3d at 248;In re S.C.S., 48 S.W.3d at 835.

Robert also contends the trial court’s order to pay the arrearage is barred by Texas Civil Practice and Remedies Code Section 34.001, which disallows execution on judgments more than ten years old. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 34.001 (Vernon 1997). We disagree. This ten year dormancy statute comes into play only when child support arrearages are coalesced into a judgment confirming arrearages. In re S.C.S., 48 S.W.3d at 836. The ten year dormancy period begins to run upon the signing of a judgment confirming arrearages. Id. Therefore, the trial court’s order to pay the arrearage cannot be barred by Section 34.001.

*3 Finally, Robert asserts that application of Section 157.005 violates his rights to due process and due course of law. Robert did not make this claim in the trial court and has therefore waived it. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993). We overrule Robert’s issues one, four, and five.

LACHES

In his sixth issue, Robert asserts the trial court erred because it did not allow him to present testimony regarding his argument that laches should apply to bar Mabel’s claim. Robert provided no authority for this contention and has therefore waived it. SeeTEX.R.APP. P. 38.1(h); Davis v. Kaufman County, 195 S.W.3d 847, 850 (Tex.App.-Dallas 2006, no pet.). Neither do we find any indication in the record that he presented this issue to the trial court. See Dreyer, 871 S.W.2d at 698. Further, this complaint has no merit. Laches is a defense grounded upon an unreasonable delay by a party in asserting its legal or equitable rights, and a good faith change of position by another to his detriment because of the delay. Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998). As explained above, the 1999 amendment, applicable to this case, permits the trial court to retain jurisdiction over collection of the child support arrearage for as long as it is owed. See Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 15, 1999 Tex. Gen. Laws 3058, 3062. Further, a parent has a legal duty to support his children. See Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993) (orig.proceeding). Under these circumstances, the defense of laches is not available. See In re Moragas, 972 S.W.2d 86, 93 (Tex.App.-Texarkana 1998, no pet.). We overrule Robert’s sixth issue.

SUFFICIENCY OF THE EVIDENCE

In his second issue, Robert contends the evidence is legally and factually insufficient to support the findings supporting the order on cumulative money judgment and the order appointing a receiver. He complains that no evidentiary hearing was held and there is a complete absence of evidence of the vital facts necessary for the judgments. He specifically argues there is no evidence to support the trial court’s finding that all community property transferred by the Rusk County divorce decree is subject to the child support lien.

In his third issue, Robert asserts that the trial court erred in rendering the June 29 order on cumulative money judgment without an evidentiary hearing and without affording him notice of the judgment so he could request findings of fact and conclusions of law. He complains that he is forced to appeal a ruling that he was not present for and without any information as to the factual basis for the judgment.

On May 4, 2004, the trial court held a hearing attended by attorneys for Mabel, Marcia, and Robert. Mabel’s attorney explained that they had reached an agreement on some issues but wished to present argument, not evidence, on the issue of interest. Robert’s attorney said, “That’s correct.” They agreed that Robert owes child support principal in the amount of $21,400.00 representing child support due and owing beginning March 5, 1972 and ending December 20, 1984. That amount reflects 225 days of possession credits. At the June 29 hearing, it was noted in open court that the parties had previously stipulated to everything except the rate of interest to be applied and that the legislature had determined the applicable interest rate. The trial judge noted that all they needed was a judgment. After the trial judge encouraged the attorneys for Robert and Marcia to look at the judgment tendered by Mabel’s attorney, both stated on the record that they had no objection to the form of the judgment. Robert’s attorney then stated that he had only recently begun to represent Robert and had not been involved with previous proceedings. He specifically stated, “There’s nothing that I can do about the judgment.”The record ends without any reference to signing the judgment.

*4 Present at the August 29 hearing were attorneys for Marcia and Mabel as well as an attorney who was appointed receiver. It was stated on the record that Robert’s attorney called to say he could not be there because he was sick. Marcia’s attorney said that he had not received notice that a judgment had been entered. The remainder of that hearing involved the appointment of the receiver. The order appointing the receiver was signed the same day.

On September 20, 2005, Robert’s attorney filed a document entitled “Defendant’s Notice of Appeal and Request for Hearing.”In it, he listed several complaints, including an explanation that he received notice of the June 29 order on August 29, and requested the Twelfth Court of Appeals to set a hearing and confirm that the trial court clerk did not give him or Marcia the required notice.

Any party may request the trial court to state in writing its findings of fact and conclusions of law. The request must be filed within twenty days after the judgment is signed. TEX.R. CIV. P. 296. The trial court clerk is required to provide the parties or their attorney of record notice of a signed judgment or appealable order immediately. TEX.R. CIV. P. 306a(3). If a party has not received notice or acquired actual knowledge within twenty days after the judgment is signed, he can get an extension to file his request that is calculated from the date of notice. TEX.R. CIV. P. 306a(4). To be entitled to the extension, the party alleging late notice of a judgment must file a sworn motion with the trial court establishing the date the party or its counsel first learned of the judgment. TEX.R. CIV. P. 306a(5).

Robert did not comply with the requirements of Rule 306a(5) to extend the time to file a request for findings of fact and conclusions of law. Because he failed to do so, he cannot now complain about the absence of findings of fact and conclusions of law or how their absence has a detrimental effect on his arguments on appeal. We overrule Robert’s third issue.

Most appealable issues in a family law case, including a trial court’s confirmation of child support arrearages, are reviewed under an abuse of discretion standard. In re A.L.G., 229 S.W.3d 783, 784 (Tex.App.-San Antonio 2007, no pet.); Beck v. Walker, 154 S.W.3d 895, 901 (Tex.App.-Dallas 2005, no pet.). A trial court’s judgment is reversed only when it appears from the record as a whole that the trial court abused its discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). A trial court abuses its discretion as to factual matters when it acts unreasonably or arbitrarily. Id. A trial court abuses its discretion as to legal matters when it acts without reference to any guiding principles. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). In a nonjury trial, where findings of fact and conclusions of law are neither filed nor timely requested, it is implied that the trial court made all necessary findings to support its judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992). The legal and factual sufficiency of the evidence to support these implied findings may be challenged when, as in this case, a reporter’s record is brought forward.Id. at 84.However, under an abuse of discretion standard, arguments of legal and factual sufficiency of the evidence to support the judgment are not independent grounds for asserting error, but are relevant factors in assessing whether a trial court abused its discretion. Beck, 154 S.W.3d at 902.

*5 The Family Code provides procedures for enforcement of child support payments, including requesting a money judgment for arrearages. SeeTEX. FAM.CODE ANN. § 157.001 (Vernon 2002); Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2003, 2007) (current version at TEX. FAM.CODE ANN. § 157.263 (Vernon Supp.2007)). In rendering a money judgment, the trial court may not reduce or modify the amount of arrearages. Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2001) (current version at TEX. FAM.CODE ANN. § 157.262(a) (Vernon 2002)). However, the final money judgment may be subject to an offset or counterclaim. Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2001) (current version at TEX. FAM.CODE ANN. § 157.262(f) (Vernon 2002)). Thus, the trial court acts as a “mere scrivener” in mechanically tallying the amount of arrearage. Curtis v. Curtis, 11 S.W.3d 466, 471 (Tex.App.-Tyler 2000, no pet.).

Here, the parties stipulated to the fact that, after applying a possession credit, Robert owed past due child support principal in the amount of $21,400.00 for a specified time period. Where stipulations are made in open court and entered of record, they are binding. SeeTEX.R. CIV. P. 11; Ex parte Burroughs, 687 S.W.2d 444, 446 (Tex.App.-Houston [14th Dist.] 1985, orig. proceeding). The judgment recites a total amount due that includes interest on the arrearages. Robert had no objection to the judgment at the June 29 hearing. The judgment further orders Robert to pay six percent interest on the total arrearages, including interest from the date of rendition of the judgment until paid as required by statute. SeeTEX. FAM.CODE ANN. § 157.265 (Vernon Supp.2007). There is evidence of probative force supporting the

trial court’s judgment. Accordingly, the trial court did not abuse its discretion in entering the order on cumulative money judgment.

Robert also complains in his second issue that there is no evidence to support the trial court’s finding in the August 29 order that all community property transferred by his divorce from Marcia was subject to the child support lien. In Marcia’s first and second issues, she asserts that the trial court abused its discretion when it made findings of fact concerning her property rights without evidence to support them. Specifically, she argues there is no evidence to support the finding that all community property she and Robert owned was liable for Robert’s delinquent child support. We find no merit in these complaints.

The child support obligation was court imposed in 1969. The child support lien arose by operation of law against all of Robert’s nonexempt property, including his retirement plan, regardless of whether the amounts of the arrearages had been adjudicated. See Act of May 15, 1997, 75th Leg., R.S., ch. 420, § 2, 1997 Tex. Gen. Laws 1660, 1660 (amended 2001, 2003) (current version at TEX. FAM.CODE ANN. § 157.312 (Vernon Supp.2007)); Act of May 27, 1997, 76th Leg., R.S., ch. 556, § 20, 1999 Tex. Gen. Laws 3058, 3062 (amended 2001, 2003, 2007) (current version at TEX. FAM.CODE ANN. § 157.317 (Vernon Supp.2007)). Community property consists of the property, other than separate property, acquired by either spouse during marriage. TEX. FAM.CODE ANN. § 3.002 (Vernon 2006). Community property subject to Robert’s sole or joint management, control, and disposition is subject to liabilities he incurred before marriage, including the child support arrearages. TEX. FAM.CODE ANN. § 3.202(c) (Vernon 2006). Community property subject to Marcia’s sole management, control, and disposition is the only category of community property that is not subject to Robert’s child support obligation because it was incurred before their marriage. SeeTEX. FAM.CODE ANN. § 3.202(b) (Vernon 2006). If it is Marcia’s position that some of the community property was under her sole control and management and thus not liable for Robert’s child support obligation, it was her burden to identify and prove that certain property could not be reached by the lien. See Act of May 15, 1997, 75th Leg., R.S., ch. 420, § 14, 1997 Tex. Gen. Laws 1660, 1663 (amended 2001) (current version at TEX. FAM.CODE ANN. § 157.326 (Vernon 2002)). This she failed to do. Further, Mabel’s arguments at trial and on appeal all indicate an interest in reaching Robert’s retirement fund to satisfy the past due child support obligation. There is nothing to indicate there is any other community property. There is no doubt the retirement fund is subject to the lien. Thus, the trial court did not abuse its discretion in finding that all community property transferred in the divorce was subject to the lien. We overrule Robert’s second issue and Marcia’s first and second issues.

TURNOVER ORDER

*6 In her third issue, Marcia asserts the trial court erred when it ordered her to turn over all real and personal property she owned to a receiver. She argues that all property she owned when the August 29, 2005 order was rendered was her separate property and there is no authority under Texas law for her to be required to pay Robert’s debt. In her fourth issue, she contends, without citing authority, that the trial court erred when it ordered her to pay the receiver for his services.

In its August 29, 2005 order, the trial court ordered Robert and Marcia to “turn over all real and personal property and title to all real and personal property of their community estate as of July 15, 2004” to the receiver. As explained above, the trial court did not abuse its discretion in determining that Robert and Marcia’s community estate is subject to the lien. It is appropriate to collect past due child support through use of a turnover order and receiver. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184 (amended 2001, 2007) (current version at TEX. FAM.CODE ANN. § 157.264 (Vernon Supp.2007)); TEX. CIV. PRAC. & REM.CODE ANN. § 31.002 (Vernon Supp.2007); First City Nat’l Bank v. Phelan, 718 S.W.2d 402, 405 (Tex.App.Beaumont 1986, writ ref’d n.r.e.). Further, the judgment creditor who obtains turnover relief is entitled to recover attorney’s fees. TEX. CIV. PRAC. & REM.CODE ANN. § 31.002(e). We overrule Marcia’s third and fourth issues.

DISPOSITION

Having been presented with no trial court error, we affirm the trial court’s order on cumulative money judgment of June 29, 2005 and its August 29, 2005 order on motion for appointment of receiver.

Tex.App.-Tyler,2007.
In re D.T.
Not Reported in S.W.3d, 2007 WL 4465250 (Tex.App.-Tyler)

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Under certain circumstances a grandparent can open a child support collection case to establish and obtain unpaid court ordered child support.

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In many situations grandparent who is receiving government benefits such as TANF or Medicaid, may be asked to cooperate with the Attorney General’s office  to establish a child support order with the biological parents of the child.

If the grandparent can provide proof that the child has been living with and under the supervision of the grandparent, then the grandparent should contact a child support attorney immediately..

A separate child support case will be opened with each noncustodial parent (mother and father), even if one or both parents live in the same household.

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Law Offices of Sinkin & Marvel - 866-933-CHILD(2445) | 210-732-6000
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I just turned 18 last april and now i would like to try to get the back child support my father owes me that has never been paid.  What information do I need & how do I hire a child support enforcement lawyer?

The most important information an applicant can provide, aside from the noncustodial parent’s current address, is the name and address of the noncustodial parent’s current employer. If the current employer is not known, the name and address of the last known employer should be provided.

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• social security number and date of birth;
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Law Offices of Sinkin & Marvel - 866-933-CHILD(2445) | 210-732-6000
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