Beck v. Walker

• Decision Date: 31 January 2005
• Docket Number: No. 05-03-00016-CV.,05-03-00016-CV.
• Citation: 154 S.W.3d 895
• Parties: Mari BECK, Appellant, v. Jamie WALKER, Appellee.
• Court: Texas Court of Appeals

154 S.W.3d 895

Mari BECK, Appellant, v. Jamie WALKER, Appellee.

No. 05-03-00016-CV.

Court of Appeals of Texas, Dallas.

January 31, 2005.

James W. Creech, Dallas, for Appellant.

Howard Shapiro, Howard Shapiro & Associates, Plano, Georganna L. Simpson, Law Offices of Georganna L. Simpson, Dallas, for Appellee.

Suzanne Duvall, Dallas, for Attorney-Mediator.

Before Justices MOSELEY, FITZGERALD, and LANG.

OPINION

Opinion by Justice MOSELEY.

This is an appeal of an order granting judgment for a child support obligation. In three issues, Mari Beck contends that the trial court abused its discretion by failing to award her the child support arrears she proved, medical expenses, and reimbursement for child support she paid under a void order. In a fourth issue, Beck contends the trial court abused its discretion by awarding an offset without evidence of direct support and that is not authorized by the family code. In a fifth issue, Beck contends the trial court abused its discretion in awarding her an amount of attorney's fees less than she requested, and that the evidence is factually insufficient to support the trial court's attorney's fee award. For the following reasons, we resolve Beck's fourth issue in her favor and reverse the order as to the amount of child support arrears and render judgment for child support arrears in the amount of $7,350. Also, we resolve Beck's fifth issue in her favor and reverse the amount of attorney's fees and remand that issue to the trial court for further proceedings. We affirm the order in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, the 219th Judicial District Court of Collin County, Texas, signed an "Order Under Uniform Interstate Family Support Act" ordering appellee, Jamie Walker, to pay Beck $350 per month in child support for their child, T.B. The obligation began May 15, 1997, and continued until T.B. was eighteen years old or until he was no longer enrolled in high school, whichever occurred later.¹ In addition, the court also ordered Walker: (1) to maintain health insurance on T.B. for as long as child support was payable; (2) to pay all of T.B.'s health care expenses if, at the time they were incurred, Walker was not providing health insurance as ordered; and (3) to pay $2,450 with interest to the Texas Attorney General in retroactive child support.²

Walker later sued Beck in Tennessee to modify visitation and the above child support obligation, and to change custody. The Tennessee court entered several orders pertaining to the suit. Under one order, Walker was awarded attorney's fees and travel expenses. Pursuant to the Tennessee orders, T.B. lived with Walker from November 1999 to November 2000. During that time, Beck payed child support to Walker. However, in 2000, the Tennessee court determined that it did not have jurisdiction over the suit and vacated all orders.

In 2000, Beck filed suit in Georgia, where she was living, seeking custody of T.B. That suit was dismissed for lack of jurisdiction, and Beck was ordered to pay Walker's attorney's fees and travel and other expenses.

In 2001, Beck filed in Collin County a "Motion to Modify Child Support" and a "Motion to Enforce Child-Support Obligation and to Confirm Unpaid Child Support to Judgment and for Reimbursement for Health Care Expenses with Order to Appear and Show Cause." Walker answered the motion to modify, generally denying the allegations. He also filed an answer to the motion to enforce, in which he both generally denied the allegations and pled that "there is no arrearage of child support."

The trial court heard both motions. Beck testified that Walker owed her $13,949.32 in child support arrears as of September 23, 2002. She supported her testimony with a "Texas Child Support Arrearage Summary Report" and a "State Registry Payment History." Beck also testified that Walker owed her for certain health care expenses, including T.B.'s share of her health insurance payments, certain co-pays, and eye care. Beck also claimed that Walker owed her $4,000 for ten payments of $400 she made to Walker when T.B. lived with Walker, which she was ordered to pay by the Tennessee court. She produced a $400 money order dated May 18, 2000, and testified that she did not have all the documentation of her payments because it was in storage. Walker admitted receiving "some payments."

Walker testified that the Texas Attorney General closed his child support account in September 1999 because he had zero balance of child support. Accordingly, the amount of arrearage was $11,550 ($350 per month, due on the fifteenth day of each month, for the thirty-three months from October 1999 through June 2002). However, Walker also testified that he was entitled to some credits against that amount. He claimed he was entitled to a credit of $4,200 ($350 per month for twelve months) for the period of time T.B. lived with him pursuant to the Tennessee court orders. He also testified Beck owed him $3,150, consisting of $1,000 in attorney's fees and $250 expenses awarded by the Tennessee court and $1,500 in attorney's fees and $400 in travel and related expenses awarded by the Georgia court.

Walker also testified that he obtained health insurance for T.B. from 1997 to 2002. He testified that he informed Beck of the coverage. Exhibits 9 and 10 were letters dated, respectively, January and February 1997, in which Walker provided Beck information on the coverage beginning in 1997 and included health insurance documents. Exhibits 7 and 8 were certificates of health insurance coverage covering 1998 through 2002. Walker also testified that he understood from Beck that she had a problem regarding coverage at a doctor's visit and that he wrote her in response that he sent the insurance card, the coverage, and "all the information." Further, Walker testified that he never received any statement from Beck that T.B. was not covered on health insurance or that Walker owed reimbursement for health insurance premiums. Even though Walker did not provide a copy of any letters to Beck regarding the 1998 through 2002 coverage, he testified he sent them.

Beck's counsel testified that he had a contingent fee contract by which he would receive twenty-five percent of the child support arrears that were collected. He also testified regarding the hourly rate and the number of hours he had spent on the motion for enforcement, totaling $4,995.

On December 5, 2002, the trial court signed an "Order Granting Judgment on a Child Support Obligation." The court ordered Walker to pay $4,200 in child support arrears, with prejudgment interest, and $1,050 in attorney's fees. On December 30, 2002, Beck moved for new trial and requested findings of fact and conclusions of law. The trial court did not enter any findings or conclusions, and Beck's motion for new trial apparently was overruled by operation of law.

On appeal, Beck makes no complaint regarding the trial court's implied denial of her motion to modify child support. We therefore affirm that portion of the trial court's judgment.

JUDGMENT FOR CHILD SUPPORT ARREARS

Beck's first four issues attack the amount awarded her as "child support arrears." Specifically, she contends the trial court abused its discretion by: (1) reducing the amount of child support arrearage and by not confirming the arrearage before reducing the judgment to reflect any offsets and counterclaims (issue one), and (2) awarding an offset or counterclaim in Walker's favor without evidence of direct support and that was not authorized by the family code (issue four); (2) not awarding her an arrearage based on Walker's health insurance obligation pursuant to section 154.188 of the family code (issue two); and (3) not awarding her reimbursement for child support she paid to Walker under Tennessee court orders (issue three). The record shows that the arrearage issue was raised by both parties' pleadings, and that the offsets, health insurance obligation, and child support reimbursement issues were tried by consent.³

A. Standard of Review

In a nonjury trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Thomas v. Thomas, 852 S.W.2d 31, 34 (Tex.App.-Waco 1993, no writ). The trial court is also the judge of the facts proved and the reasonable inferences to be drawn from those facts. Brigham v. Brigham, 863 S.W.2d 761, 762-63 (Tex.App.-Dallas 1993, writ denied). Generally, when a fact finder is presented with conflicting evidence, it may believe one witness and disbelieve others. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).

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. Attorney Gen. of Tex. v. Stevens, 84 S.W.3d 720, 722 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.-El Paso 2000, 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); Stevens, 84 S.W.3d at 722. A trial court abuses its discretion as to factual matters when it acts unreasonably or arbitrarily. Stevens, 84 S.W.3d at 722 (citing Worford, 801 S.W.2d at 109). A trial court abuses its discretion as to legal matters when it fails to act without reference to any guiding principles. Id. (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)).

To obtain findings of fact and conclusions of law, a party must file with the clerk of the trial court and present to the court a "Request for Findings of Fact and Conclusions of Law" within twenty days after judgment is signed. Tex.R. Civ. P. 296. Here, the trial court signed the order granting judgment on December 5, 2002, and Beck filed a "Request for Findings of Fact and Conclusions of Law" twenty-five days later, on December 30, 2002....