London v. London

• Decision Date: 28 October 2005
• Docket Number: No. 14,14
• Citation: 192 S.W.3d 6
• Parties: Jeffrey LONDON, Appellant, v. Leticia LONDON, Appellee.
• Court: Texas Court of Appeals

192 S.W.3d 6

Jeffrey LONDON, Appellant, v. Leticia LONDON, Appellee.

No. 14-03-01088-CV.

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

October 28, 2005.

Rehearing Overruled March 2, 2006.

Pamela E. George, Patricia A. Wicoff, Houston, for appellants.

Walter P. Mahoney, Pasadena, for appellees.

Panel consists of Justices ANDERSON, HUDSON, and FROST.

OPINION

JOHN S. ANDERSON, Justice.

In thirteen issues, Jeffrey London ("Jeff") appeals the trial court's award of increased child support and attorney's fees in favor of Leticia London ("Leticia") and its denial of his claim for recoupment. We reverse the trial court's judgment and render judgment that (1) Jeff recoup $86,250 in child support previously paid, (2) Leticia take nothing on her modification claim, and (3) Jeff recoup child support he over-paid during the pendency of this appeal. We further remand the issue of attorney's fees to the trial court for proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jeff and Leticia divorced in 1995 and were appointed joint managing conservators of their two children, Nicolas, born in 1992, and Alexa, born in 1994. Under the terms of the divorce decree, Jeff was ordered to pay $1,500 per month in child support, to provide and pay for health insurance for the children, to pay all uninsured medical expenses incurred by the children, to pay as additional child support up to $700 per month towards tuition and education expenses of the children, and to pay contractual alimony in the amount of $1,500 per month for a period of nineteen months.

In 1998, Jeff filed a petition to modify the parent-child relationship in which he sought modification of his periods of possession, the sole right to make educational decisions for the children, and a domicile restriction. Leticia filed a counter-petition in which she sought an increase in child support and removal of the domicile restriction set forth in the divorce decree. In 2001, the trial court increased Jeff's child support obligation from $1,500 to $4,500 a month, awarded Leticia $40,000 in attorney's fees, awarded Jeff the sole right to make decisions regarding the children's education and additional periods of possession, and restricted the children's primary residence to Harris County.

Jeff appealed the trial court's 2001 child support and attorney's fees awards in favor of Leticia, and a panel of this court reversed and rendered judgment that Leticia take nothing on her claims for increased child support and attorney's fees and affirmed the remainder of the judgment. London v. London, 94 S.W.3d 139 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Five days after the issuance of this court's opinion, Leticia filed a second motion for modification in the trial court in which she sought an increase in the $1,500 in child support Jeff was ordered to pay under the divorce decree and attorney's fees. In response, Jeff filed a general denial and a counterclaim in which he sought recoupment of $86,250 from Leticia, the total amount of increased child support and retroactive child support payments he made to Leticia during the pendency of his appeal of the trial court's 2001 judgment that increased his monthly child support obligation to $4,500 per month.

On June 27, 2003, after an oral hearing, the trial court granted Leticia's second motion for increased child support and ordered Jeff's support obligation for the children increased from $1,500 per month to $3,000 per month and awarded Leticia retroactive support in the amount of $6,000. The trial court further awarded Leticia's attorney $12,000 for legal services rendered in relation to the children, in the nature of child support with interest, and $15,000 for attorney's fees in the event of a successful appeal for the benefit of her attorney, along with costs and expenses with interest.

Jeff timely filed a request for findings of fact and conclusions of law. The trial court issued 23 findings and conclusions,¹ summarized as follows:

• The circumstances of both children, as well as Leticia and Jeff, materially and substantially have changed since the date of rendition of the court's order to be modified (findings 1, 2, 3, and 4).

• At the time of the trial court's findings, Leticia's net resources were less than $8,000 per year and less than $700 per month, and her net resources from employment at the time of rendition of the order to be modified were none (findings 5 and 8).

• Jeff's net resources as of the date of trial exceeded $60,000 per month, and Jeff's net resources at the time of rendition of the order to be modified were at least $14,823 per month (findings 6 and 7).

• The monthly proven needs of the children during Leticia's periods of possession are more than $3,500 per month (finding 9).

• Leticia incurred $12,000 in reasonable and necessary attorney's fees in the presentation of her motion to increase child support. Reasonable and necessary attorney's fees for the representation of Leticia on an appeal to the court of appeals would be $10,000 and on an appeal to the Texas Supreme Court would be $5,000 (findings 10, 11, and 12).

• Leticia filed the motion to modify on November 11, 2002; Jeff entered an appearance on February 5, 2003; and the increase in child support is retroactive to February 1, 2003 (findings 13, 14, and 15).

• The existing order restricts the primary residence of the children to Harris County, Texas beyond the year 2000 (finding 16).

• The domicile restriction in the divorce decree was to expire and at that time Leticia could relocate the children without restriction (finding 17). In 2000, the Court changed the domicile restriction, limiting the children's primary residence to Harris County, Texas, and gave Jeff the right to make educational decisions regarding the children (finding 18).

• The school Jeff selected is located in a residential area that is more expensive than Leticia can afford without additional child support beyond the levels established by the Texas Family Code guidelines (finding 19).

• The decision of the court of appeals in this cause constitutes a material and substantial change of circumstances affecting the parents and the children (finding 20).

• Between October 1, 2000 and December 1, 2002, Jeff paid an additional amount of child support pursuant to the order of February 23, 2001, totaling $86,250 (finding 21).²

• Jeff has remarried and has one child of his new marriage (finding 22).

• At the time the trial court entered its findings and conclusions, Leticia had no significant cash, but the equity in the home she occupies with the children, in the school district selected by Jeff, is approximately $250,000 (finding 23).

Jeff timely filed objections to the above findings of fact and conclusions of law and requested additional findings and conclusions. The trial court did not file any additional findings or conclusions.

Jeff appeals the trial court's 2003 order denying his request for recoupment, increasing his child support obligation, and awarding Leticia attorney's fees.³ Jeff argues the trial court erred by (1) denying his claim for recoupment of $86,250 in child support payments he made to Leticia during the pendency of his prior appeal to this Court; (2) increasing his child support obligation from $1,500 per month to $3,000 per month; and (3) awarding attorney's fees to Leticia and her attorney.

II. DISCUSSION

A. Jeff's Claim for Recoupment of $86,250

In issues one through three, Jeff argues the trial court erred in not allowing him to recoup the $86,250 in child support he overpaid. In issues four and five, Jeff asserts the trial court erred in failing to make certain requested findings about the $86,250 when there was evidence to support the same, and thus, the findings cannot be deemed against Jeff.

Jeff asserts six theories in support of his claim for recoupment: (1) he made a request for and has a right to a money judgment; (2) the overage paid by Jeff may be applied towards his future child support obligation as recognized by Texas Family Code sections 154.012 and 154.013; (3) the trial court had a duty to comply with this Court's mandate that Leticia take nothing, and it has not complied; (4) Jeff has the right to recover the overpayment under theory of, or analogy to, wrongful execution, sections 34.021 and 34.022 of the Texas Civil Practice and Remedies Code; (5) Leticia has been unjustly enriched by the overpayment; and (6) equity and the common law demand Jeff recoup the overpaid child support. It is undisputed Jeff paid Leticia $86,250 in child support, in addition to the $1,500 per month child support obligation provided for in the 1995 divorce decree, pursuant to the trial court's 2001 order.

In response, Leticia argues Jeff has waived his right to recoupment. She contends Jeff never properly requested suspension of the child support obligation while the case was pending in the court of appeals under Texas Family Code sections 109.001 or 109.002. TEX. FAM.CODE ANN. §§ 109.001, 109.002 (Vernon 2002). Additionally, Leticia argues this court's mandate did not suspend Jeff's payments or order that the money be repaid; thus, the trial court had no authority to grant any other relief but that set forth in the mandate pursuant to Texas Rule of Appellate Procedure 51.1. See TEX.R.APP. P. 51.1. Further, Leticia argues there is no unjust enrichment because the benefit of the increased child support went to the children and she was only a conduit for the benefit to flow to the children.

We review the trial court's denial of Jeff's claim for recoupment de novo. Under de novo review, the reviewing court exercises its own judgment and determines each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998). Whether Jeff may recoup the child support he overpaid pursuant to a trial court order later reversed on appeal is an issue that has not been addressed by Texas courts.

Texas Family Code sections...