Attorney General of Texas on Behalf of State v. Cartwright

• Decision Date: 24 March 1994
• Docket Number: No. C14-93-00243-CV,C14-93-00243-CV
• Citation: 874 S.W.2d 210
• Parties: ATTORNEY GENERAL OF TEXAS on Behalf of the STATE of Texas and Audrey Jones, Appellant, v. Sheila L. CARTWRIGHT, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 210

874 S.W.2d 210

ATTORNEY GENERAL OF TEXAS on Behalf of the STATE of Texas and Audrey Jones, Appellant, v. Sheila L. CARTWRIGHT, Appellee.

No. C14-93-00243-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

March 24, 1994.

Rehearing Overruled April 28, 1994.

Charles Childress, Austin, for appellant.

Elsie Martin-Simon, Houston, for appellee.

Before ROBERTSON, CANNON and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This is an appeal from a judgment reflected in three separate orders dismissing with prejudice the notice of delinquency filed by appellant, the Attorney General of Texas on behalf of the State of Texas and Audrey Jones, against appellee, Sheila L. Cartwright, and awarding attorney's fees to appellee as sanctions. In seven points of error, appellant contends that the trial court erred in: (1) entering the order of dismissal with prejudice and the sanction order because there was no basis for a finding of frivolousness or for dismissal with prejudice as a matter of law; (2) granting attorney's fees against appellant because sanctions for filing a notice of delinquency, a motion for new trial or a Rule 329b motion to vacate is an abuse of discretion; (3) granting attorney's fees because governmental immunity prohibits imposition of such sanctions; (4) granting attorney's fees because the first motion and order for sanctions did not comply with Chapter 105 of the Texas Civil Practice and Remedies Code; (5) granting attorney's fees and costs against appellant because there was no evidence to support the first sanction award; and (6) granting attorney's fees and injunctive relief against appellant because there was no evidence to support the second sanction award under Chapter 105 of the Texas Civil Practice and Remedies Code. We affirm.

On January 1, 1991, the Attorney General, filed an action against Sheila Cartwright to enforce an alleged child support order under the Uniform Reciprocal Enforcement of Support Act ("URESA"). The Attorney General alleged that Cartwright was obligated under an existing order to pay child support to Audrey Jones. On April 19, 1991, Cartwright filed a Motion to Dismiss alleging that the Attorney General had failed to produce an order of the Louisiana court ordering her to pay child support to Audrey Jones. On May 9, 1991, the trial court dismissed the case based on the following:

a. one of the children the subject of the suit was over the age of 18 years and had attained the age of 20 years; and said child was emancipated under the laws of this state and under the laws of the State of Louisiana; and

b. the other child the subject of the suit had never resided with Petitioner/Appellant, Audrey Jones; and

c. the State of Texas failed to produce, after timely requests by Sheila L. Cartwright, a certified copy of any order, signed by a judge of competent jurisdiction, which specifically ordered Sheila L. Cartwright to pay child support to Audrey Jones.

On July 17, 1991, the Attorney General filed a new action involving the same parties in the same court, but under a different cause number. On September 12, 1991, Cartwright filed a verified original answer and motion to dismiss the case alleging res judicata and collateral estoppel. Cartwright timely served upon Audrey Jones' attorney of record, the Attorney General, a Request for Production of an "order" from the State of Louisiana signed by a judge of competent jurisdiction and specifically ordering Sheila L. Cartwright to pay child support to Audrey Jones. The Attorney General failed to comply with this discovery request and so far as the record reflects, has never complied.

On October 22, 1991, a hearing on the URESA petition in the new case was held before a master, who found that Cartwright had failed to pay court-ordered child support in the amount of $13,090.65. The master signed the report and recommendation on November 27, 1991. The trial court signed an order adopting the master's report on December 10, 1991. On the same day, Cartwright filed a Notice of Appeal and Exceptions and Objections to Report of IV-D Master requesting a "trial de novo" before the trial court.

On January 14, 1992, a hearing was held on Cartwright's motion for "trial de novo," which was directed at the master's report. The Attorney General failed to appear at the hearing, and the trial court dismissed the case with prejudice on January 15, 1992. On February 14, 1992, the Attorney General timely filed a motion for new trial, which was denied by the trial court on March 3, 1992. Cartwright filed an opposition to the motion for new trial on February 28, 1992.

On March 8, 1992, the Attorney General timely perfected an appeal to this court. On March 19, 1992, the Attorney General filed a Motion to Dismiss its own appeal. We granted the motion on June 4, 1992, and dismissed the appeal.

On July 26, 1992, the Attorney General filed a Notice of Delinquency against Cartwright on the basis of the child support arrearage determined by the December 10, 1991, order. Cartwright timely filed her First Amended Motion to Stay Issuance, and a hearing was held on the motion on September 8, 1992. On September 14, 1992, the trial court signed its Order on Motion to Stay Issuance of Wage Withholding. The trial court found that the notice of delinquency was "frivolous, groundless, and without legal authority and hereby dismissed with prejudice." The agreed order was signed by Cartwright's attorney and the Assistant Attorney General, Yvette Camel-Smith.

On October 15, 1992, the Attorney General timely filed a Motion for New Trial. On October 21, 1992, Cartwright filed an Opposition to Motion For New Trial and/or Rehearing and requested sanctions pursuant to Rule 13 of the Texas Rules of Civil Procedure. On November 10, 1992, the Attorney General, by oral motion in open court, withdrew its Motion For New Trial. Cartwright did not withdraw her requests for affirmative relief pursuant to Rule 13.

On December 1, 1992, a hearing was held on Cartwright's request for sanctions. The trial court ordered sanctions of $2,000 in attorney's fees against the Attorney General pursuant to TEX.R.CIV.P. 13 and Black v Dallas County Child Welfare Unit, 835 S.W.2d 626 (Tex.1992). On December 18, 1992, the Attorney General filed a Motion to Vacate Order Dismissing with Prejudice and Motion to Vacate Order Imposing Sanctions and requested findings of fact and conclusions of law. On January 7, 1993, the trial court filed its findings of fact and conclusions of law.

On January 11, 1993, Cartwright filed an Answer to Motion to Vacate Order Dismissing with Prejudice and Answer to Motion to Vacate Order Granting Sanctions and Requests for Sanctions and Affirmative Relief, in which she requested relief pursuant to Rule 13 and Sections 105.002 and 105.003 of the Texas Civil Practice and Remedies Code.

On January 26, 1993, a hearing was held on the motion to vacate. The trial court ordered sanctions of $3000 in attorney's fees against the Attorney General pursuant to Rule 13 of the Texas Rules of Civil Procedure, sections 105.002 and 105.003 of the Texas Civil Practice and Remedies Code, and Black v. Dallas County Child Welfare Unit, 835 S.W.2d 626 (Tex.1992).

In its first point of error, appellant asserts that the trial court erred in entering the orders of September 14, 1992, and December 1, 1992, which found its notice of delinquency frivolous and dismissed it with prejudice, because there was no basis for a finding of frivolousness or dismissal with prejudice as a matter of law. In effect, appellant argues that the filing of the notice of delinquency did not invoke the jurisdiction of the trial court so as to permit a finding of frivolousness or dismissal of the action.

In its first subpoint, the Attorney General argues that the notice of delinquency/writ of withholding process is essentially an administrative remedy, not a legal action. The adequacy of a notice of delinquency is an administrative determination reviewable by the court only if the obligor timely seeks judicial review. TEX.FAM.CODE ANN. § 14.44 (Vernon Supp.1994); Attorney General's Office v. Mitchell, 819 S.W.2d 556, 559-60 (Tex.App.--Dallas 1991, no writ). Section 14.44 provides in pertinent part:

Notice of Delinquency in Court-Ordered Child Support

(a) Notice of Delinquency. A proceeding may be initiated under this section if a delinquency allegedly occurs in any previously ordered child support in an amount equal to or greater than the total support due for one month ... The attorney general ... may prepare and file with the court of continuing jurisdiction a verified notice of delinquency and deliver notice of delinquency to the obligor ...

(b) Contents of Notice. The notice of delinquency to the obligor shall:

* * * * * *

(3) Contain a statement that if the obligor does not contest the withholding within 10 days after the receipt of the notice of delinquency, 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) contain a statement that if the obligor contests the withholding, he will be afforded an opportunity to present his case to the court within 30 days of receipt of the notice of contest;

* * * * * *

(c) Staying Issuance and Delivery of a Writ of Income Withholding. The obligor may stay the issuance and delivery of a writ of income withholding on his current or subsequent employer by filing a motion to stay issuance and delivery with the clerk of court with jurisdiction of the matter within 10 days of the date the notice of delinquency is received by him ...

(d) Hearing on Contested Delinquency. On filing a motion to stay issuance, the clerk of court shall notify the attorney who filed the notice of delinquency and the court that the motion has been filed. A hearing on the motion must be held within 30 days of its filing ... The court must decide the contested...