In re E.A.C.

• Decision Date: 11 May 2005
• Docket Number: No. 05-03-00554-CV.,05-03-00554-CV.
• Citation: 162 S.W.3d 438
• Parties: In the Interest of E.A.C. and C.L.C., Minor Children.
• Court: Texas Supreme Court

162 S.W.3d 438

In the Interest of E.A.C. and C.L.C., Minor Children.

No. 05-03-00554-CV.

Court of Appeals of Texas, Dallas.

May 11, 2005.

COPYRIGHT MATERIAL OMITTED

Brad M. Lamorgese, Cooper & Scully, P.C., Dallas, for Appellant.

Georganna L. Simpson, Law Office of Georganna L. Simpson, Susan Vrana, Moore, Vrana & Padgitt, Dallas, for Appellant.

Before Justices WRIGHT, FITZGERALD, LANG-MIERS.

OPINION

Opinion by Justice LANG-MIERS.

This is a limited appeal pursuant to rule 34.6(c)(1) in which appellant Lorrie Lou McDonald complains of the child support order entered against her in favor of appellee Glenn Coterill. See TEX.R.App. P. 34.6(c)(1). We modify the judgment and, as modified, affirm.

BACKGROUND

McDonald and Coterill were married in 1981. Coterill filed a petition for divorce in 1999 in which he asked to be appointed joint managing conservator and primary possessory conservator of their three minor children.¹ Coterill also asked for temporary child support from McDonald. The trial court appointed a guardian ad litem to represent the children's interests but did not order McDonald to pay temporary child support.

In May 2001, the trial court heard evidence in the divorce action and granted the divorce. The divorce decree awarded McDonald, among other things, a promissory note in the principal amount of $658,000 plus interest payable monthly by Coterill to McDonald as payment for her community interest in the marital estate. At the guardian ad litem's request, the trial court severed the issues in the suit affecting the parent child relationship (the SAPCR) and delayed the hearing on those issues.

In June 2001, the trial court heard evidence in the SAPCR, but the order was not signed until January 16, 2003. In the SAPCR order, the trial court appointed Coterill sole managing conservator of C.I.C. and appointed Coterill and McDonald joint managing conservators of E.A.C. The trial court also found that McDonald owed Coterill $6,119.16 in "child support arrearage" through January 1, 2002 plus interest accruing at six percent from February 2, 2002 for a total of $6,471.09 as of the date of the order. Additionally, the trial court awarded the guardian ad litem $1,200 against McDonald but ordered Coterill to pay that amount on McDonald's behalf. The trial court then ordered an offset of both the child support award and the guardian ad litem fees against the principal amount Coterill owed to McDonald by the terms of the promissory note.

McDonald timely requested findings of fact and conclusions of law. She also filed a motion for new trial in which she objected to the court's order of offset of the guardian ad litem fees against the promissory note. The trial court denied McDonald's motion for new trial and McDonald appealed. Fourteen days after McDonald filed her notice of appeal, the trial court issued its findings of fact and conclusions of law.

Pursuant to rule 34.6(c)(1), McDonald requested a partial reporter's record and included a statement of issues to be presented on appeal.² See TEX.R.APP. P. 34.6(c)(1). Rule 34.6(c) limits the parties to these issues. Id.

McDonald argues (1) the trial court erred in ordering McDonald to pay child support arrearage where no order existed obligating her to pay child support, and (2) the trial court erred in ordering the child support arrearage owed by McDonald to be deemed paid from the promissory note awarded McDonald in the divorce decree because the offset is an impermissible modification of the divorce decree.

In an appeal under rule 34.6(c), we must presume the partial reporter's record designated by the parties constitutes the entire record for purposes of reviewing these issues and that the omitted portions of the record are irrelevant. See R. 34.6(c)(4); see also $4,310 In United States Currency v. State, 133 S.W.3d 828, 829 (Tex. App.-Dallas 2004, no pet. h.). This is true even if a point raises the factual or legal insufficiency of the evidence to support a specific finding identified in the issues. TEX.R.App. P. 34.6(c)(4); Bennett v. Cochran, 96 S.W.3d 227, 228 (Tex.2002).

We review a trial court's determination of child support under an abuse of discretion standard. Wilemon v. Wilemon, 930 S.W.2d 290, 293 (Tex.App.-Waco 1996, no writ); see also Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.App.-Austin 1997, no pet.). Under an abuse of discretion standard, legal and factual insufficiency issues are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. Doyle, 955 S.W.2d at 479; Wilemon, 930 S.W.2d at 293-94. If there is some evidence of a substantive and probative character to support the decision of the trial court, no abuse of discretion occurs. Wilemon, 930 S.W.2d at 294.

ARREARAGE OR LUMP SUM CHILD SUPPORT AWARD?

In her first issue, McDonald argues the court abused its discretion in finding that she owed a "child support arrearage" in the SAPCR order because the court had never signed an order obligating her to pay child support.³ The SAPCR order stated:

"The Court finds that Lorrie Lou McDonald owes $6,119.16 in child support arrearage to Glenn A. Coterill through January 1, 2002. IT IS ORDERED that the arrearage shall bear interest beginning February 1, 2002 at 6%. The court finds the arrearage and interest owed as of the date of the entry of this order is $6,471.09 and that Glenn A. Coterill may set off said amount against this arrearage and interest amount against the principal owed on one Promissory Note dated September 13, 2001 in the original principal amount of $658,000.00 owed by him to Lorrie Lou McDonald.... IT IS THEREFORE ORDERED AND DECREED that the amount of $6,471.09 is hereby paid by Glenn A. Coterill against the principal of the Promissory Note dated September 13, 2001 in the original principal amount of $658,000.00. . . ."

(emphasis added).

Coterill responds that a trial court's findings of fact control over its judgment and that the findings of fact in this case awarded lump sum child support, not an arrearage, citing civil procedure rule 299a. See TEX.R. Civ. P. 299a.

Rule 299a provides that "[f]indings of fact shall not be recited in a judgment. If there is a conflict between findings of fact recited in a judgment in violation of this rule and findings of fact made pursuant to Rules 297 and 298, the latter findings will control for appellate purposes." Id.; see Guridi v. Waller, 98 S.W.3d 315, 317 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (findings of fact control over recitations of facts in judgment); Zorilla v. Wahid, 83 S.W.3d 247, 254 (Tex.App.-Corpus Christi 2002, no pet.) (same); Frommer v. Frommer, 981 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1998, pet. dism'd) (same); Hill v. Hill, 971 S.W.2d 153, 156 (Tex.App.-Amarillo 1998, no pet.) (findings in judgment should be given effect if they don't conflict with separately-filed findings).

Finding of fact number six states:

6. At the request of Mother's attorney during the pendency of the divorce and for judicial economy and efficiency, the Court abated hearings requested by Father for child support from Mother until final trial on the merits. The Court finds Mother should pay Father lump sum child support for the children in the possession of the father during the pendency of the divorce and pendency of the SAPCR in the amount of $6119.16 with interest at 6% beginning February 1, 2002.

(emphasis added).

We initially address McDonald's argument that rule 299a does not apply in this case. First, she argues the family code requires the court to recite facts in the judgment and rule 299a does not apply. We disagree. The legislature made it clear in enacting the family code that, unless expressly provided otherwise, suits affecting the parent-child relationship are to be governed by the same rules of procedure as those generally applied in other civil cases. See McLeod v. McLeod, 723 S.W.2d 777, 779 (Tex.App.-Dallas 1987, no writ); see TEX. FAM.CODE ANN. §§ 105.003, 109.002 (Vernon 2002).

McDonald cites sections 157.166 and 157.263 of the family code as requiring certain fact findings in a child support arrearage judgment. See TEX. FAM.CODE ANN. §§ 157.166, 157.263 (Vernon 2002). But these sections refer to an order entered pursuant to a Chapter 157 motion to enforce a final order of child support. See generally TEX. FAM.CODE ANN. Ch. 157 (Vernon 2002 & Supp.2004-05). Because this case is an original SAPCR proceeding, not a motion to enforce a child support order under Chapter 157, we conclude these sections do not apply. But even if they did, nothing in the language of these sections states that we should disregard rule 299a when findings of fact have been requested pursuant to rule 296. Accordingly, we reject McDonald's argument that the family code prevents rule 299a from applying to this case.

McDonald next argues that rule 299a does not apply because the judgment recites an "ultimate fact" necessary to make a legal declaration of the rights of the parties and not a finding of fact stated in a judgment in violation of the rule, citing Pacific Employers Insurance Company v. Brown, 86 S.W.3d 353 (Tex.App.-Texarkana 2002, no pet.). Brown was a workers' compensation case in which the judgment recited a seventeen percent impairment rating but the separately-filed findings of fact recited a thirteen percent impairment rating. Id. In Brown, the court held that the seventeen percent in the judgment was an "ultimate fact" that was necessary to make a legal declaration of the rights of the parties and was not a finding of fact. Id. at 356-57. As a result, ...