In re W.M.R.

• Decision Date: 01 November 2012
• Docket Number: NO. 02-11-00283-CV,02-11-00283-CV
• Parties: IN THE INTEREST OF W.M.R., A CHILD
• Court: Texas Court of Appeals

IN THE INTEREST OF W.M.R., A CHILD

NO. 02-11-00283-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: November 1, 2012

FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

MEMORANDUM OPINION¹

Appellant M.R. (Father) appeals the trial court's order modifying Father's child support obligation. We modify the trial court's order and affirm it as modified.

Background Facts

Father and J.M.R. (Mother) divorced on October 3, 2000. The only child of the marriage was W.M.R., who was nine years old. The final divorce decree stated:

The court finds that [W.M.R.] suffers from muscular dystrophy and will be incapable of being self supporting after the age of eighteen.

IT IS ORDERED AND DECREED that [Father] is obligated to pay and, shall pay to [Mother] child support of $1500.00 per month for [W.M.R.] in monthly installments . . . until the date of the earliest occurrence of one of the following events:

a. the child dies;

b. further order modifying this child support;

c. $1,000 monthly payments are commenced to [W.M.R.] pursuant to New York Life Insurance Company annuity policy.

Upon the commencement of the $1,000.00 monthly annuity payments set forth in paragraph c above[,] the support obligation of [Father] shall be reduced to $500.00 per month . . . and continuing thereafter until the first of the contingencies set forth in paragraph a and b above occurs.

Father's employer was ordered to withhold child support from Father's earnings. "Earnings" was defined as "compensation paid or payable to [Father] for personal services, whether called wages, salary, commission, bonus, or otherwise." Father was also required to provide and maintain medical insurance coverage for W.M.R. and to pay for fifty percent of all health care expenses not covered by insurance.

On August 16, 2001, the trial court modified the child support provisions of the divorce decree. The 2001 order states,

The prior Order of this Court entitled DECREE OF DIVORCE[,] which was signed by the Court on October 3, 2000[,] is hereby modified as follows:

. . . [Father] shall pay to [Mother] child support of $870.75 each month . . . until the first month following the date of the earliest occurrence of one of the events specified below:

(1) the child dies;

(2) further order modifying this child support;

(3) $1,000.00 monthly payments are commenced to [W.M.R.]

pursuant to New York Life Ins. Co. annuity policy.

Upon the commencement of the $1,000.00 monthly annuity payments set forth above the support obligation of [Father] shall be reduced by such sum commencing the first day of the first month following the commencement of the annuity payments.

The order also stated that Father should pay 20% "of the net after taxes of any bonus he receives from his employment," and required Father to deliver to Mother a copy of the bonus check.

The new order did not change Father's duties regarding medical insurance or uncovered medical expenses.

When W.M.R. turned eighteen in October, 2008, Father stopped paying child support. On September 22, 2010, Mother filed a "Petition to Enforce Child Support Order and to Modify Parent-Child Relationship." Mother alleged that Father failed to pay any child support from his employment bonuses, and because of W.M.R.'s disability, she asked the court to modify the child supportorder to extend child support payments "for an indefinite period" and to require Father to pay, "as additional support, a portion of the uninsured expenses for medical supplies, equipment, in-home care, over-the-counter medications, and other related expenses, as well as repairs and maintenance on the wheelchair-equipped van and replacement costs, if necessary." She sought an arrearage for the unpaid child support since W.M.R.'s eighteenth birthday. Father responded to Mother's motion, arguing that the order was incapable of enforcement because it is ambiguous, and that the trial court did not have jurisdiction over the case.

After a hearing, the trial court entered an order on July 7, 2011, finding that Father owed Mother $38,158.73 in unpaid child support. The trial court ordered Father to pay the arrearage plus $1,465.50 a month for W.M.R.'s needs, fifty percent of W.M.R.'s medical expenses, and fifty percent of "all expenses to replace the wheel-chair equipped van." Father then filed this appeal.

Discussion

1. Jurisdiction

In Father's first three issues, he challenges the trial court's jurisdiction to make the 2011 modification. A court acquires continuing, exclusive jurisdiction in suits affecting the parent-child relationship by the rendition of a final order. Tex. Fam. Code Ann. § 155.001(a) (West 2008). The court retains its jurisdiction until (1) an order of adoption is rendered; (2) the parents have remarried each other; or (3) another court assumes jurisdiction by rendering a final order based on incorrect information that there was no court of continuing, exclusive jurisdiction.Id. §§ 155.002, 155.004(a) (West 2008). A court with continuing, exclusive jurisdiction may modify its prior order regarding child support. Id. § 155.003 (West 2008). A suit for support for a minor or adult disabled child may be filed in the court of continuing, exclusive jurisdiction as a suit for a modification. Id. § 154.305(c) (West 2008).

In this case, the court acquired jurisdiction in 2000 with the rendition of the final divorce decree. Father argues that his child support obligation ended when W.M.R. turned eighteen for two reasons. First, he argues that the annuity payment "zeroed out" his child support obligation, thereby ending it. The 2001 order states that once the annuity payments commenced, Father's obligation "shall be reduced by" the amount of the annuity payments. Because Father's obligation was for less than the amount of the annuity payments, Father argues his obligation ended when the annuity payment began. Father's argument ignores the language of the 2001 order which states that Father's obligation continues until W.M.R.'s death or further order by the trial court. The commencement of the annuity payments does not extinguish Father's obligation, it merely reduces it.

Second, Father argues that the trial court did not make the required findings to continue child support beyond W.M.R.'s eighteenth birthday. Section 154.302 of the family code states:

(a) The court may order either or both parents to provide for the support of a child for an indefinite period and may determine the rights and duties of the parents if the court finds that:

(1) the child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support; and

(2) the disability exists, or the cause of the disability is known to exist, on or before the 18th birthday of the child.

Tex. Fam. Code Ann. § 154.302 (West 2008). Thus, the court cannot order continued child support unless it finds that the child requires substantial care and personal supervision and will not be capable of self-support. See id. Father argues first that the 2001 agreed order "completely superseded all prior orders regarding child support." Because the agreed order contains no findings regarding W.M.R.'s disability, he continues, it is insufficient to support the trial court's order of support. Second, he argues that the findings in the original divorce decree that W.M.R. "suffers from muscular dystrophy and will be incapable of being self[-]supporting after the age of eighteen" are insufficient under the statute. Father also argues that we may not imply the findings necessary to support the judgment.

In support of Father's argument that the agreed order "completely superseded" the divorce decree, he cites In re Clark for the proposition that "[a]n order modifying a prior child custody or support order necessarily supersedes the prior order . . . . Thus, an order modifying a prior child support order may . . . 'terminate' the obligation imposed by the prior order . . . ." No. 10-03-00037-CV, 2004 WL 1632768, at *5 (Tex. App.—Waco July 21, 2004, no pet.). Father's useof ellipses contorts the original statement. Clark actually says "An order modifying a prior child custody or support order necessarily supercedes the prior order to the extent a modification is ordered. Thus, an order modifying a prior child support order may or may not 'terminate' the obligation imposed by the prior order, depending on the circumstances." Id. (emphasis added); see also Office of Attorney Gen. of Tex. v. Wilson, 24 S.W.3d 902, 906 (Tex. App.—Dallas 2000, no pet.) (holding that a modification order that changed the identity of the payee of child support and did not change any other terms of paying child support left those unaddressed terms "unchanged" and that the two orders read together "specifically and unambiguously state the terms of Wilson's child support obligation"). The only change to Father's child support obligations was a reduction of his monthly payments from $1,500 to $870.75. The 2001 agreed order made no modification to the findings that W.M.R. suffers from muscular dystrophy and will be incapable of supporting himself after the age of eighteen. Thus, those findings remain even after the changes imposed by the agreed order.

Turning to whether the trial court's findings are sufficient to support an order of child support beyond W.M.R.'s eighteenth birthday, we note that the statute requires the trial court to find that W.M.R. (1) requires substantial care and personal supervision because of a mental or physical disability and (2) will not be capable of self-support. See Tex. Fam. Code Ann. § 154.302(a)(1) (West 2008). The divorce decree includes the finding that W.M.R. would not becapable of self-support but does not explicitly state that W.M.R. requires substantial care and personal supervision. Father argues that the finding that W.M.R. requires substantial care and personal supervision must be stated in the order and that we cannot imply the...