M.M.O., In re

• Decision Date: 29 July 1998
• Docket Number: Nos. 04-96-01012-C,04-97-00931-CV,s. 04-96-01012-C
• Citation: 981 S.W.2d 72
• Parties: In the Interest of M.M.O.
• Court: Texas Court of Appeals

Page 72

981 S.W.2d 72

In the Interest of M.M.O.

Nos. 04-96-01012-CV, 04-97-00931-CV.

Court of Appeals of Texas San Antonio.

July 29, 1998.

Rehearing Overruled Oct. 28, 1998.

Deborah A. Verbil, Sp. Asst. Atty. Gen., Rhonda Amkraut Pressley, Asst. Atty. Gen., Child Support Enforcement Div., Austin, for appellant.

Steven A. Sinkin, E.B. Barretto, Law Offices of Sinkin & Barretto, P.L.L.C., Richard R. Orsinger, Clarence C. Felder, San Antonio, for appellee.

Before HARDBERGER, C.J., and RICKHOFF and STONE, JJ.

RICKHOFF, Justice.

This case arises from the failure of the attorney general's office to collect accrued interest on delinquent child support in thousands of child-support enforcement actions it

has filed. Two child-support obligees sought to redress this failure by way of a class action. The case followed a procedurally unusual course, ultimately resulting in an order certifying two types of claims as a class action: 1) claims involving setting aside or modifying prior enforcement orders, and 2) a claim for a declaratory judgment regarding the Attorney General's obligation to collect accrued interest. Because the claims involving prior enforcement orders do not present justiciable controversies given the procedural posture of the case, we vacate the order to the extent it certified those claims as a class action. We also conclude that the trial court abused its discretion by certifying the declaratory judgment action as a class action without requiring the class representatives to establish that certification was appropriate with regard to that action. Therefore, we reverse the order to the extent it certified the declaratory judgment action.

THE UNDERLYING CONTROVERSY

The Texas Family Code provides that a child support payment not timely made constitutes a final judgment for the amount due and owing, including interest. See TEX. FAM.CODE ANN. § 157.261(a) (Vernon Supp.1998); see also Medrano v. Medrano, 810 S.W.2d 426, 428 (Tex.App.--San Antonio 1991, no writ). Interest accrues on the delinquent child support payment from the date the support is delinquent until it is paid or the arrearages are confirmed and reduced to a money judgment. See TEX. FAM.CODE ANN. § 157.265(a) (Vernon 1996). Accrued interest becomes part of the child support obligation and may be enforced by any means provided for the collection of child support. See id. § 157.267. In rendering a money judgment, the trial court may not reduce or modify the amount of child support arrearages. See id. § 157.262(a).

Title IV-D of the Social Security Act requires states to provide services relating to the enforcement of child support obligations for children who receive government assistance payments and for other children whose guardians request the services. See 42 U.S.C. § 654(4) (1988). In Texas, the office of the attorney general has been designated to provide the Title IV-D services. See T EX. FAM.CODE ANN. § 231.001 (Vernon 1996). Despite the state-law provisions for collecting accrued interest on delinquent child support obligations, the Attorney General has stipulated that "[b]efore July 1, 1996, interest was not included in the substantial majority of orders adjudicating child support arrearages in Title IV-D cases." ¹

PROCEDURAL HISTORY

M.M.O.'s father became delinquent in his child support obligation, and the Attorney General filed a motion for enforcement. In March 1995, the Attorney General obtained a judgment against the father for $4,575 in unpaid child support. M.M.O.'s mother, Maria, later retained a private attorney and filed a Motion for Judgment Nunc Pro Tunc and for Enforcement of Child Support Order. She alleged that the March 1995 enforcement order contained a clerical error because it did not include accrued interest on the overdue child support payments. In October 1996, the trial court granted the motion for judgment nunc pro tunc and modified the judgment to include interest in the amount of $22,199.71.

The Attorney General also filed a motion for enforcement against the father of N.A.W. and Z.U.W. On June 26, 1996, the trial court signed a judgment against the father for $3,482.50. On July 25, 1996, the mother On November 20, 1996, Maria, individually and as next friend of M.M.O., and Deidre, individually and as next friend of N.A.W. and Z.U.W., filed a motion for class certification in the 166th Judicial District Court. They sought to urge the motion for judgment nunc pro tunc and the motion for new trial on behalf of a class of child support recipients who have motions for enforcement of child support arrearages pending and all child support recipients affected by enforcement orders that fail to include accrued interest on child support arrearages. They requested that the enforcement orders be corrected to include accrued interest on child support arrearages. The motion did not expressly name any defendants, either individually or as a class. The Attorney General filed a petition in intervention "to protect the State of Texas' interest in promoting the best interest of Texas' children."

Deidre, filed a motion for new trial, asserting that the judgment erroneously failed to include accrued interest. On September 4, 1996, the trial court set aside the judgment. Thereafter, the trial court signed a judgment against the father for $8,157.11.

At the class-certification hearing, the class representatives, their counsel, an assistant attorney general, and an attorney for the father of N.A.W. and Z.U.W. appeared. No one voiced an objection to class certification. At the conclusion of the hearing, the trial court signed an order certifying the class (hereafter "first order"). Although the motion for class certification did not expressly seek any relief from, or request any action by, the Attorney General or the State of Texas, the first order required the Attorney General to send notice to the class members, to begin filing enforcement proceedings on behalf of class members by March 15, 1997, and to seek attorney fees on behalf of the class. The notice to class members accompanying the first order explained that the Attorney General would seek enforcement of the full amount of child support arrearages, including interest, and that class counsel would act as counsel for the class "solely for the limited purpose of monitoring the enforcement of the Court's orders relating to The Attorney General of Texas seeking enforcement of the full amount of child support arrearages."

The Attorney General perfected an interlocutory appeal from the first order (appeal number 04-96-01012-CV). After his brief was filed, the class representatives decided to tack and raise the spinnaker. They filed an Amended Motion for Class Action Certification and Petition for Relief (hereafter "amended motion"), which reasserted the allegations of the first motion to certify a class and again stated that the class representatives sought to urge their motion for judgment nunc pro tunc and motion for new trial on behalf of the class. In addition, the amended motion sought a declaratory judgment against the Attorney General and the State.

Upon the filing of the amended motion, the Attorney General found it necessary to seek more favorable winds and so removed the case to federal court. After the federal court remanded the case, the trial court rescinded the first order and signed a new order certifying a class (hereafter "second order"). The second order differed from the first order in that it did not require the Attorney General to send notices to class members or file enforcement actions. The Attorney General and the State of Texas (hereafter "the appellants") filed in this court a motion for review of the second order as part of the pending interlocutory appeal of the first order. The appellants also perfected a separate appeal from the second order (appeal number 04-97-00931-CV). On March 9, 1998, this court stayed further proceedings in the trial court.

ELECTION OF REMEDIES

The class representatives contend that the Attorney General cannot pursue these appeals because he made an election of remedies by removing the case and challenging the class certification order in federal court. This contention is erroneous for several reasons.

First, "[a]n election of remedies is the act of choosing between two or more inconsistent but coexistent modes of procedure and relief allowed by law on the same state of facts." Custom Leasing, Inc. v Second, the sole purpose of the doctrine of election of remedies is to prevent double recovery for a single wrong. See Green Oaks, Ltd. v. Cannan, 749 S.W.2d 128, 131 (Tex.App.--San Antonio 1987), writ denied per curiam, 758 S.W.2d 753 (Tex.1988). Consequently, it is ordinarily asserted by defendants to bar a plaintiff's recovery. See Watson v. Nortex Wholesale Nursery, Inc., 830 S.W.2d 747, 750 (Tex.App.--Tyler 1992, writ denied). In this case, it is the plaintiffs who assert the doctrine, and the concept of a double recovery is simply inapplicable on these facts.

                Texas Bank & Trust Co., 491 S.W.2d 869, 871 (Tex.1973) (emphasis added).  When a party chooses to exercise one of the modes of procedure or relief, the party abandons the right to exercise the other procedure or remedy and is precluded from resorting to it.  See id.   A fundamental premise of the doctrine of election of remedies is that the alternative procedure or remedy must actually exist.  See Poe v. Continental Oil & Cotton Co., 231 S.W. 717, 719 (Tex.  Comm'n App.1921, holding approved).  Here, the alternative of proceeding in federal court was not actually available to the Attorney General--the federal court remanded the case without considering the Attorney General's class-certification complaints
                

Finally, the doctrine of election of remedies is not a favorite of equity and its scope therefore should not be extended. See Custom Leasing, 491 S.W.2d at 871. The class representatives have not cited any authority holding that removal...