In re W.J.B.
| Decision Date | 27 August 2009 |
| Docket Number | No. 09-08-00289-CV.,09-08-00289-CV. |
| Citation | 294 S.W.3d 873 |
| Parties | In the Interest of W.J.B. and L.M.B. |
| Court | Texas Court of Appeals |
James R. Jones, Sherea Vitelli, Smith & Garg, L.L.C., The Woodlands, for appellant.
Codrut Bolos, The Woodlands, pro se.
Before GAULTNEY, KREGER, and HORTON, JJ.
Yumara Bolos, the mother of W.J.B. and L.M.B., appeals from the trial court's denial of her motion to enforce a child support arrearage. In four issues, Yumara complains that (1) the evidence concerning the amount of her former husband's past unpaid child support was not controverted, (2) she never relinquished custody of the children to her former husband for a period in excess of her rights under the parties' parenting plan, (3) her former husband failed to establish the affirmative defense he asserted under section 157.008 of the Family Code, and (4) the trial court should have awarded her all past unpaid child support. We affirm the trial court's judgment.
Codrut Bolos and Yumara Bolos were divorced in the State of Washington in 2003. Under an agreed order establishing their final parenting plan, the children are to reside the majority of the time with Yumara, and she also has the right to designate the children's residence. In addition to specifying certain days on which Codrut is to have possession of the children, the final parenting plan also provides:
A separate child support order, also entered in connection with their divorce, required that Codrut pay the sum of $798.72 monthly to Yumara beginning August 1, 2002. Yumara acknowledged that Codrut fully paid the court ordered child support between August 2003 and June 2005. Beginning July 1, 2005, Codrut quit paying his monthly child support. At trial, Codrut stipulated that from July 2005 to October 2007 when he, Yumara, and the children lived together, he had not paid child support in the amount of $22,364.16. Codrut paid his monthly child support obligations from November 2007 through the date of the trial, which occurred in March 2008.
In July 2005, and while still living in another state, Codrut purchased a house in Montgomery County, Texas. In that same month, Yumara and the children moved in that house. In August 2005, Codrut moved in with them as well, and lived there until July 2007. Yumara and the children resided at Codrut's house until October 2007, when they moved to a house that Yumara had purchased.
Yumara testified that when Codrut purchased the house in Montgomery County, she expected to pay rent and to live there with the children, but did not expect Codrut to live there. Yumara also testified that she had agreed to pay $800.00 per month to rent the house. However, after Codrut moved into the house, she never paid rent because Codrut "didn't pay me child support." Yumara also testified that after he moved in, she asked him nearly every month about making his child support payment.
During her testimony, Yumara presented a summary of expenses to show that between July 2005 and October 2007, her average child-related expenses had varied between $2,200.00 and $2,700.00 per month. Yumara essentially denied Codrut's claim that the living arrangement had resulted from a desire to reunite. According to her, that possibility, after Codrut moved into the Montgomery County house, was never discussed. Yumara did agree that after moving in together, Codrut had paid or provided for various specified expenses that benefitted the children. Generally, Yumara explained that she felt obligated to pay the children's expenses, but did not think the obligation applied "if there's another adult involved." She further explained, "[T]he money that he paid for living expenses, you incur whether you have children or not." In response to a question by the trial court, Yumara admitted that while they were living in the Montgomery County house, Codrut had actual possession of the children that exceeded the Washington State parenting plan. Yumara also told the trial court that during that period, both of them had supported the children and that she had worked for twenty of the twenty-four months as a registered dental assistant.
According to Codrut, he purchased the house in Montgomery County after his parents died with the hope that he, Yumara, and the children could live together again as a family. In making that decision, Codrut stated that he did not contemplate that he might be required to continue to pay child support after moving into the house. Codrut considered that he and Yumara had a shared custody arrangement that greatly exceeded the time provided to him in the parenting plan. Codrut disputed Yumara's claim that she periodically requested that he pay child support, and he testified that the question of his paying child support while they lived together was never discussed. Codrut explained that while they lived together, he was a stay-at-home dad who earned income by purchasing properties in tax foreclosure proceedings. After moving back into the house Codrut explained that he was at home every day when the children came home from school, supervised their homework, and considered himself to be a full-time parent.
In testifying about the household expenses during the period in issue, Codrut explained that he paid all of the monthly mortgage payments on the house, which ranged from $851.00 to $870.00 per month, and paid the annual homeowner's association fees. Codrut further stated that he began paying the utility bills at the house in December 2005 and continued to pay them until Yumara moved. He also paid for the telephone bills and various other specified expenses incurred on behalf of the children, as well as advanced funds to Yumara to purchase a car. Codrut identified a summary of his expenses for the period between August 2005 and October 2007, claimed that it showed the expenses he incurred related to supporting the children, and estimated that his monthly support contributions during that period averaged approximately $2,000.00.
Codrut also testified about his expectations regarding the living arrangement during the period in issue. On cross-examination, Codrut denied that he had ever discussed renting the house to Yumara. Instead, Codrut explained that he understood the living arrangement during this period to be that they "would try to be a family again." Codrut further agreed that he would have incurred mortgage expenses on the house even if the children had not lived there, but he questioned whether he would have needed a three bedroom house had they not agreed to live together.
On examination by the trial court, Codrut estimated the fair monthly rental on the home to be $1,200.00 monthly. The record also contains exhibits introduced by both parties including bills, checks, bank statements, and summaries that demonstrate each had incurred expenses for the children's support.
Codrut and Yumara were the only witnesses who testified during the hearing. In summary, each held a different opinion about whether Codrut had completely met his child support obligation under the Washington court's order, about how to account for expenses incurred while living together that had benefitted the children, and about the amount of actual support Codrut had provided the children during the period in issue.
Yumara appeals from a court order denying her recovery on a claim of unpaid child support. Her pleading is titled "Motion For Enforcement Of Child Support Order And Order To Appear." In her motion, Yumara sought to confirm the amount of back child support, have a judgment rendered for that amount, and have Codrut held in contempt and confined to jail.
Because we have no jurisdiction to hear an appeal from a trial court's judgment refusing to hold a party in contempt, we requested that the parties address whether the trial court's order was appealable. See Norman v. Norman, 692 S.W.2d 655, 655 (Tex.1985) (). Yumara, through her attorney, responded, and contends that an order denying a claim for a child support arrearage is an appealable order; therefore, she argues we have jurisdiction over the appeal. Codrut, acting pro se, also responded to our letter, and he contends that we do not have jurisdiction over the appeal.
Yumara's issues on appeal do not assert that the trial court erred in refusing to hold Codrut in contempt of court. The issues on which Yumara appeals, as stated in her brief, all concern that portion of the trial court's order denying her request that the trial court confirm and then reduce the alleged child support arrearage to judgment.
Courts of Appeals have jurisdiction to hear appeals from court orders to the extent the order concerns a decision to grant or deny a monetary judgment for a child support arrearage. See TEX. CONST. art. V, § 6(a); TEX. GOV'T CODE ANN. § 22.220(a) (Vernon 2004) (); TEX. FAM. CODE ANN. §§ 157.261-.264 (Vernon 2008) (). Because Yumara's appeal concerns the trial court's denial of an alleged arrearage claim, and because the amount in controversy exceeds $100, we conclude that we have jurisdiction over the portion of the order that Yumara has appealed.
In nonjury trials, the trial court acts as the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Beck v. Walker, 154 S.W.3d 895, 901 (Tex.App.-Dallas 2005, no...
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