Gross v. Gross

• Decision Date: 04 April 1991
• Docket Number: No. A14-90-0388-CV,A14-90-0388-CV
• Citation: 808 S.W.2d 215
• Parties: Walton Adolph GROSS, Appellant, v. Marilyn Elaine GROSS, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 215

808 S.W.2d 215

Walton Adolph GROSS, Appellant, v. Marilyn Elaine GROSS, Appellee.

No. A14-90-0388-CV.

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

April 4, 1991.

Charles J. Michael, Houston, for appellant.

Patsy Young, Houston, for appellee.

Before BROWN, C.J., and MURPHY and CANNON, JJ.

OPINION

CANNON, Justice.

Appellant brings this appeal from a judgment ordering payment of arrearages for child support and from an order requiring wage withholding. We affirm.

The following facts are taken from the trial court's findings of fact. On August 30, 1974, the 310th district court of Harris County entered a decree granting appellant and appellee a divorce. At that time, they had two children, an older daughter born on June 9, 1969, and a younger son born on May 21, 1974. The divorce decree named appellee managing conservator of the two minor children and named appellant possessory conservator. It also ordered appellant to pay child support as follows:

That Defendant, Walton Adolph Gross, pay to Plaintiff the sum of THREE HUNDRED AND NO/100 (300.00) DOLLARS per month for the support of said children, such payments are to be made on or before the first day of each month, commencing on or before September 1, 1974, and are to be paid through the Support Division of the Harris County Probation Department, Family Law Center Building, 1115 Congress Avenue, Houston, Harris County, Texas, which is hereby designated as the official depository of this Court for such purposes.

The divorce decree has never been modified. On June 9, 1987, the daughter became eighteen. From March 1987, through June 1987, the son lived with appellant who provided actual, direct support. On November 20, 1989, appellee filed a Motion For Contempt For Failure To Pay Child Support, For Withholding From Earnings, And To Confirm Judgment For Unpaid Child Support.

The trial court found that for the period from January 1, 1987, to January 8, 1990, appellant failed to pay child support in accordance with, and in the manner provided by, the divorce decree. During that three-year period, appellant was employed at Powel Industries, Inc. Appellant earned a gross income of $55,642.54 in 1987, $63,344.60 in 1988, and more than $73,359.83 in 1989. The court also found that from January 1, 1987, through January 8, 1990, appellant made direct payments of child support to appellee in the amount of $4500.00. It further found that on April 1, 1989, appellant made a direct payment to appellee in the amount of $1500.00, one-half of which the trial court credited to child support payments due. The court also allowed appellant a credit of $600.00 representing an offset of $150.00 per month for the four months that appellant provided actual, direct support for the son.

After allowing a credit for direct payments and an offset for actual, direct support, the trial court found that appellant failed to pay a total of $5250.00 in child support that became due during the period from January 1, 1987, through January 8, 1990. Specifically, the court determined that $11,100.00 was the total amount due for that period and that $5850.00 was the total amount of appellant's credits and offsets.

On January 8, 1990, the trial court heard appellee's motion for contempt. On January 12, 1990, the court denied appellee's motion. On that same date, the trial court signed a Judgment And Order For Wage Withholding. That judgment and order required appellant to pay $5250.00 in arrearages for child support and required appellant to pay $1000.00 in attorney's fees and court costs. On January 12, 1990, the trial court also signed an Order Clarifying Prior Order. That order required appellant to pay continuing child support for the son in the amount of $300.00 a month until the son was eighteen, or until he graduated from high school.

On January 22, 1990, appellant filed a motion for new trial. The court heard appellant's motion on February 12, 1990. The next day, the trial court signed an order denying appellant's motion for new trial. That order also granted appellee an additional $750.00 in attorney's fees and another $1000.00 and $500.00 in attorney's fees conditioned on an appeal to an appellate court and the Supreme Court, respectively.

In his first point of error, appellant contends the trial court erred in granting a judgment for child support arrearages because that judgment is based on a prior support order that became vague, ambiguous, indefinite, and uncertain when the older child attained the age of eighteen.

A judgment must be sufficiently definite and certain to permit its enforcement by contempt or summary process. Richey v. Bolerjack, 594 S.W.2d 795, 798 (Tex.App.--Tyler 1980, no writ) (citing Ex parte Slavin, 412 S.W.2d 43 (Tex.1967)). See also Marichal v. Marichal, 768 S.W.2d 383, 384 (Tex.App.--Houston [14th Dist.] 1989, writ denied) (opin. on reh'g.). A trial court may properly refuse to enter judgment on back child support payments because of an ambiguous, indefinite, and uncertain order. Templet v. Templet, 728 S.W.2d 844, 847 (Tex.App.--Beaumont 1987, no writ).

The divorce decree was entered on August 30, 1974, after a trial before the court. It did not supply terms for payment of support when the daughter reached eighteen. Section 14.05 of the Family Code provides that the court may order periodic payments for the support of the child until he or she is 18 years of age. TEX.FAM.CODE ANN. § 14.05(a) (Vernon Supp.1991). It also provides that "the court of continuing jurisdiction may render an original support order, modify an existing order, or render a new order extending child support past the child's 18th birthday, whether the request for such an order is filed before or after the 18th birthday of the child, if the child is fully enrolled in an accredited secondary school in a program leading toward a high school diploma." Id. The court may order support for an indefinite period if the child is mentally or physically disabled. TEX.FAM.CODE ANN. §§ 14.05(b), 14.051. This Court has held that a court of continuing jurisdiction has no authority under section 14.05 to order or to enforce support, for a non-disabled child over eighteen. Lambourn v. Lambourn, 787 S.W.2d 431, 432 (Tex.App.--Houston [14th Dist.] 1990, writ denied) (citing Elfeldt v. Elfeldt, 730 S.W.2d 657, 658 (Tex.1987).).

In its conclusions of law, the trial court determined that the divorce decree as it related to payment of child support became too vague and ambiguous when the daughter reached eighteen and, therefore, was unenforceable by contempt. The trial court also determined, however, that the divorce decree did not become too vague and ambiguous when the daughter reached eighteen for purposes of enforcement by a money judgment. Appellant contends these findings are contrary to established precedent. Appellant argues that a judgment that is too uncertain to be enforceable by contempt, is also too uncertain to be enforceable by a money judgment. Howard v. Texas Dep't of Human Resources, 677 S.W.2d 667, 668 (Tex.App.--Dallas 1984, no writ). The Family Code now provides otherwise.

The trial court entered conclusions of law that the money judgment and the order for withholding earnings were appropriate remedies pursuant to sections 14.311 and 14.33. These provisions are part of Subchapter B of the Family Code that provides for the enforcement of court orders for child support and child custody. Section 14.311 of the Family Code states the required contents of a motion to enforce a final order, judgment, or decree affecting child support and child custody. TEX.FAM.CODE ANN. § 14.311(b) (Vernon Supp.1991). It provides that a party seeking enforcement of a child support order "is not required to plead or prove that the underlying order is enforceable by contempt to obtain other appropriate enforcement remedies." Id.

Appropriate remedies to enforce child support orders include contempt, rendition of a money judgment, posting bond or security for payment, and an order or writ for wage withholding. TEX.FAM.CODE ANN. §§ 14.40-14.45 (Vernon Supp.1991). A party seeking enforcement of a final court order under subchapter B may join these remedies in the same proceeding. TEX.FAM.CODE ANN § 14.313 (Vernon Supp.). "A finding that an obligor is not in contempt does not preclude any other enforcement properly pled for, including rendition of a money judgment, posting of a bond or other security, or withholding income from earnings." TEX.FAM.CODE ANN. § 14.33(d) (Vernon Supp.). Sections 14.311(b) and 14.33(d) were in effect at the time appellee filed her November 20th motion for contempt. Acts 1987, 70th Leg., 2nd C.S., ch. 73, § 7, 1987 TEX.GEN.LAWS 225, 229 (effective November 1, 1987); Acts 1989, 71st Leg., 1st C.S., ch. 25, § 18, 1989 TEX.GEN.LAWS. 74, 82 (effective November 1, 1989). Hence, while the prior support order is too uncertain to be enforceable by contempt, it still may be enforceable by a money judgment if it is sufficiently definite and certain.

Appellant contends that when his daughter reached eighteen, the obligations imposed on him under the divorce decree became ambiguous, indefinite, and uncertain as a matter of law. Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.1967); Martin v. Adair, 601 S.W.2d 543, 546 (Tex.App.--Beaumont 1980, no writ); Richey v. Bolerjack, 594 S.W.2d 795, 798 (Tex.App.--Tyler 1980, no writ). He argues that it was unclear to him whether he was obligated to support his daughter after she reached eighteen, or whether the support payments were to continue unreduced for the minor son, or whether the support payments were to be proportionately reduced. See 594 S.W.2d at 798.

If appellant wished a reduction of child support when his eldest child reached majority, or if as he contends, his obligation had become uncertain, the burden was upon him to move for a revision of the order in question. Jones v. Ignal, 798 S.W.2d 898, 903 (Tex.App.--Austin 1990,...