Coke v. Coke

• Citation: 802 S.W.2d 270
• Decision Date: 21 September 1990
• Docket Number: No. 05-89-01092-CV,05-89-01092-CV
• Parties: Jack Lawson COKE, Jr., Appellant, v. Sally Summers COKE, Appellee.
• Court: Court of Appeals of Texas

Page 270

802 S.W.2d 270

Jack Lawson COKE, Jr., Appellant, v. Sally Summers COKE, Appellee.

No. 05-89-01092-CV.

Court of Appeals of Texas Dallas.

Sept. 21, 1990.

Rehearing Denied Oct. 30, 1990.

Jack L. Coke, Jr., Dallas, pro se.

Charles G. Childress, Austin, for appellee.

Before HOWELL, LAGARDE and THOMAS, JJ.

OPINION

THOMAS, Justice.

Jack Lawson Coke, Jr. (Father) appeals from an adverse order in favor of Sally Summers Coke (Mother), which granted a money judgment for past due child support, increased the amount of future child support, and assessed Mother's attorney's fees against him. In thirteen points of error, Father complains generally that: (a) the decree of divorce cannot support the money judgment because it is vague and indefinite; (b) his legal obligation to pay child support under the decree of divorce ended upon the entry of subsequent temporary orders; (c) the child support orders at issue were not properly authenticated; (d) the trial court erred in not allowing him a full opportunity to be heard and present evidence; (e) the new child support amount is not in compliance with the Child Support Guidelines; (f) the trial court erred in granting the attorney's fees because the sum was unreasonable, unconscionable, and unlawfully punitive in effect; and (g) the trial court's findings of fact and conclusions of law were erroneous and incomplete. For the reason stated below, we overrule all points and, accordingly, affirm the trial court's judgment.

FACTUAL BACKGROUND

A judgment nunc pro tunc was entered on December 22, 1982 (1982 decree), which dissolved the marital relationship, divided the community assets and liabilities, appointed Mother the managing conservator of the two minor children, named Father possessory conservator with the right of reasonable visitation upon reasonable notice, and ordered Father to pay the sum of $500 per month, per child, as child support. In July 1986, Mother gave notice to Father of her intention to move to Houston with the two minor children. At that time, Father filed a motion to modify conservatorship. While this motion was pending, a number of temporary orders were entered.

The first temporary order signed August 7, 1986, provided specified periods of visitation for Father with the children. The order also provided that the child support of $500 per month, per child, would be paid through the offices of Mother's attorneys. A second temporary order entered by agreement on September 19, provided that the minor son would reside with Father in Dallas during the fall school semester beginning September 20, while the minor daughter would remain with Mother. There were no changes in the designation of conservatorship, although this agreed order granted specific periods of visitation for each of the parents with each of the children and provided for the payment of transportation expenses. In addition, the agreed order provided that all discovery would be abated until December 1, 1986, and that the motion to modify would be held in abeyance until some time after January 1, 1987. Finally, this order stated that the trial court would hear and determine issues concerning interim child support on a subsequent date. The trial court conducted a hearing on September 26, 1986, and entered an order (September order) providing that Father would pay to Mother temporary child support in the amount of $500 per month beginning on October 1, 1986, and a like amount on the first day of November, December and January 1987. All payments were to be made through the Dallas County Child Support Office.

Father paid the sums due under the September order and further paid the sum of $500 on February 1, 1987, at which time he stopped making child support payments. The minor son remained with Father and the minor daughter stayed with Mother without further court involvement until the summer of 1988. In June 1988, Mother filed her first motion to enforce the child support order requesting that Father be held in contempt for failure to pay child support, a child support arrearage be confirmed a money judgment be rendered on the unpaid support, and an order be entered for automatic wage withholding. ¹ This motion was amended and supplemented a number of times throughout the summer and fall of 1988 as the alleged arrearages increased. In addition, Mother filed a motion to modify child support asserting that the needs of the minor daughter had increased and, therefore, Father should be required to pay a larger amount of child support. In response to Mother's pleadings, Father filed a number of motions which requested, among other things, a hearing on his 1986 motion to modify conservatorship. Alternatively, Father sought certain specified periods of visitation with the minor daughter. A hearing was held on all of the pending motions and an order was entered which:

a. retained Mother as the sole managing conservator of the minor daughter, awarded Father certain specific periods of visitation, and ordered him to pay all transportation costs in connection with exercising visitation;

b. ordered Father to pay to Mother the sum of $536 per month as child support on the 15th day of each month through a Guardian Ad Litem program, with Father paying the monthly Ad Litem fee;

c. awarded Mother a money judgment in the amount of $10,000 for child support arrearages that accrued from January 1, 1987 through January 1, 1989; and

d. awarded Mother's attorneys a judgment against Father in the amount of $11,898.40 for legal services rendered in connection with the action.

Father is appealing this order.

ENFORCEABILITY OF CHILD SUPPORT ORDERS

In the first two points of error, Father contends that the trial court erred in granting a money judgment for child support arrearages because the entry of the temporary orders relieved him of the legal obligation to pay child support under the 1982 decree and, further, the 1982 decree was vague and indefinite and therefore would not support a money judgment. We disagree with Father's contentions.

In arguing that the entry of the temporary orders relieved him of the obligation to pay child support, Father points out that the 1982 decree provided that child support shall continue "until the date such child has reached the age of eighteen (18) years or ... until further orders of this Court." Father asserts that the entry of the temporary orders were "further orders of the court" and that the September order self-destructed on January 1, 1987, and did not refer back to the 1982 decree. Thus, he argues that his child support obligations ceased on January 1, 1987. We note initially that Father presents only general arguments to support his theory. We have not been able to locate any cases directly on point; however, parallels can be drawn to establish that a temporary order with no subsequent final judgment cannot invalidate a child support obligation contained in a prior final decree of divorce.

Typically, a temporary order expires with the entry of a final judgment. Coleman v. Texas State Dep't of Welfare, 562 S.W.2d 554, 556 (Tex.Civ.App.--Tyler 1978, writ ref'd n.r.e.). Also, a temporary order regarding custody must not have the effect of a final adjudication of custody. Young v. Martinez, 685 S.W.2d 361, 363 (Tex.App.--San Antonio 1984, no writ). Thus, a temporary order, on its own, cannot function as a final disposition on an issue. A subsequent final divorce decree does not nullify a temporary order with regard to child support due up to the time of the decree. However, a final decree does supersede such a prior temporary order with regard to future child support. Ex parte Shaver, 597 S.W.2d 498, 500 (Tex.Civ.App.--Dallas 1980, orig. proceeding). Further, in a case that closely parallels the one at bar, it has been held that a subsequent temporary order reducing child support for a time did not nullify the original divorce decree. See Myrick v. Myrick, 478 S.W.2d 859, 861 (Tex.Civ.App.--Houston [1st Dist.] 1972, writ dism'd). In Myrick, the father applied for a reduction of his child support payments and the trial court entered an order providing that he would pay a reduced amount for nine months, at which time he would resume payments in accordance with the original decree. The appellate court held this order to be a temporary order with the original decree being in effect at the end of the period of reduced payments. The consensus of all of the cases is that a temporary order shall not supersede a final judgment once the temporary order has expired. For these reasons, we hold that the temporary orders which were entered lasted only for a limited time and, upon their expiration, Father's child support obligations resumed under the 1982 decree.

Alternatively, Father argues that the 1982 decree will not support a money judgment because it is ambiguous and vague, citing as authority Rovner v. Rovner, 778 S.W.2d 905 (Tex.App.--Dallas 1989, writ requested). The 1982 decree provides in pertinent part:

IT IS DECREED that JACK LAWSON COKE, JR. pay to SALLY SUMMERS COKE, child support in the amount of Five Hundred Dollars ($500.00) per month, per child, in two equal installments per month with the first payment being due and payable on the fifteenth day of May, 1982, and a like payment being due and payable on each first and fifteenth day of the month thereafter until the date such child has reached the age of eighteen (18) or shall have otherwise been emancipated, or until further orders of this Court.

Father asserts that the 1982 decree purports to order child support payments for children over the age of eighteen years and even "purports to automatically modify itself without any relationship to the factual context of the parties involved." Further, Father contends that the order could be read to expire on June 15, 1982. We disagree with Father's contentions that the order is vague and ambiguous.

It is true that the terms of the order, judgment, or...