Marriage of Vogel, Matter of

• Decision Date: 20 October 1994
• Docket Number: No. 07-94-0212-CV,07-94-0212-CV
• Citation: 885 S.W.2d 648
• Parties: In the Matter of the MARRIAGE OF Janet K. VOGEL and Timothy P. Vogel. In the Interest of Joshua L. VOGEL, a Minor Child.
• Court: Texas Court of Appeals

Page 648

885 S.W.2d 648

In the Matter of the MARRIAGE OF Janet K. VOGEL and Timothy P. Vogel In the Interest of Joshua L. VOGEL, a Minor Child.

No. 07-94-0212-CV.

Court of Appeals of Texas Amarillo.

Oct. 20, 1994.

Rehearing Overruled Nov. 15, 1994.

Floyd H. Richards, Dalhart, for appellant.

Moore, Lewis & Russwurm P.C., Kyle Lewis, Dumas, for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

REYNOLDS, Chief Justice.

Timothy P. Vogel (Timothy) perfected this appeal from an order modifying the child support order contained in a previous decree of divorce terminating his marriage to Janet K. Vogel (Janet). He contends, with eleven points of error, that the trial court erred in (1) reducing to judgment the arrearage for child support decreed by an unenforceable order; (2) computing the amount of arrearage; (3) calculating his net resources to set child support; (4) ordering the amount he is to pay for health insurance; (5) awarding Janet attorney's fees; and (6) denying his counterclaim for reduction of child support and attorney's fees. For the reasons expressed, the points will be overruled and the judgment will be affirmed.

When the then trial judge signed the divorce decree on 12 June 1989, he appointed Janet the managing conservator of their minor child, and ordered Timothy, who was self-employed, to pay child support in these words:

IT IS ORDERED AND DECREED that TIMOTHY P. VOGEL is obligated to pay JANET K. VOGEL child support in the amount of $550.00 per month, for the support and maintenance of the minor child, with the first payment being due and payable on March 5, 1989, and a like payment being due and payable on the same day of each month thereafter until the date of the earliest occurrence of one of the following events:

* * * * * *

IT IS FURTHER ORDERED AND DECREED that the gross net income of [Timothy] as defined as net resources as defined by the Texas Family Code, Section 14.05, Supreme Court of Texas Child Support Guidelines, Rule 3, shall be determined annually and [Timothy] IS FURTHER ORDERED that [Timothy] pay to [Janet] eighteen percent (18%) of his annual net resources on or before April 15th of the next following year, with the first payment payable on or before April 15, 1990. [Timothy] shall receive credit of previously paid support of $550.00 per month. [Janet] shall have an absolute right, at her expense, to audit [Timothy's] business records annually.

Timothy, Janet, and their respective attorneys of record approved the judgment as to form. No appeal was taken from the judgment.

Subsequently, both Timothy and Janet married other parties and, as a result of her marriage, Janet added two other children to her household. Apparently no effort was made to ascertain Timothy's net resources after the divorce until Janet engaged a certified public accountant to audit Timothy's records, the basis for her motion filed in 1993 to modify the 12 June 1989 child support order. In response, Timothy moved for a reduction in the amount of his child support obligation and to recover his attorney's fees. ¹

Hearing the evidence, the current trial judge determined that Timothy's arrearage for child support ordered to be paid by the 12 June 1989 order was $19,324 and reduced the arrearage to judgment, superseded that child support order by his order for Timothy to pay the sum of $727.20 per month beginning 5 February 1994 as child support, ordered that Timothy provide health insurance for the child at a cost of $125 per month, awarded Janet $4,901.66 for the benefit of her attorney, and denied Timothy's motion for a reduction in child support payments and attorney's fees. These aspects of the current judgment are the subjects of Timothy's eleven points of error.

Initially, Timothy contends that the original support order, being based on a percentage formula without taking into consideration the needs of the child, is not enforceable and, therefore, the trial judge erred in rendering judgment of $19,324 for child support arrearages. As support for his contention, he cites, among other authorities, Doss v. Doss, 521 S.W.2d 709, 713 (Tex.Civ.App.--Houston [14th Dist.] 1975, no writ), which held, on direct appeal from a child support order, that a provision in the order for the payment of a percentage of the obligor's income if it exceeds a fixed amount for child support is invalid; and In Interest of J.M. and G.M., 585 S.W.2d 854, 859 (Tex.Civ.App.--San Antonio 1979, no writ), which held, on appeal from an order modifying the original child support order, that the provision in the original order for automatic increases in amounts for child support formulated on an anticipated ability to pay was unenforceable. Notwithstanding the In Interest of J.M. and G.M. holding implicitly sanctioning a collateral attack on the original order, we hold that Timothy may not attack the original child support order's provision for child support in this, his appeal from the modifying order.

The divorce decree, containing the original child support order, was rendered in an action within the trial court's jurisdiction. The judgment, approved as to form by the parties and their attorneys, became a final judgment when no appeal was taken from it. Once the time for an appeal expired, a bill of review became the exclusive remedy to vacate the judgment or a provision thereof, even if it could be shown to be void. Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985).

This principle is not altered by the Texas Family Code's provision for the continuing, exclusive jurisdiction of the trial court of the parties and the subject matter, including the authority to modify all aspects of the divorce decree. See Tex.Fam.Code Ann. § 11.05 (Vernon 1986 & Supp.1994). ² However, the authority to modify does not empower the trial court to reduce or forgive child support arrearages; instead, the legislature denied the court the authority to forgive child support arrearages by providing that the court shall confirm the amount of arrearages and render judgment for all unpaid child support. Section 14.41(a); Williams v. Patton, 821 S.W.2d 141, 143 (Tex.1991). Timothy's first point of error is overruled.

The overruling of the point removes the foundation for Timothy's tenth-point contention that because the order for child support cannot be enforced, the court erred in granting Janet $4,901.66 as reasonable attorney's fees. As Timothy recognizes, upon the court's finding that he failed or refused to pay child support payments that were past due and owing, the court was directed to order him to pay Janet's reasonable attorney's fees in the absence of a finding that he need not pay them. Section 14.33(c). Timothy does not question either the reasonableness of the fees or the absence of a finding that he need not pay the fees. His tenth point of error is overruled.

Timothy submits, with his second point, that the trial court erred in rendering the judgment based on a formula of 18% of his net resources each year when in three of the four years, his net resources exceeded $4,000 per month. As we understand it, his complaint is that by applying 18% to his net resources in excess of $4,000, the court violated the then effective guidelines of section 14.055, which provided for the application of a designated percentage to the first $4,000 of net resources, and if the net resources exceeded $4,000, then the court, without reference to the percentage guidelines, may order additional amounts of child support depending upon the needs of the child. ³ In other words, the court did not calculate the arrearage in accordance with the statute as explained in Rodriguez v. Rodriguez, 860 S.W.2d 414 (Tex.1993). We do not consider the complaint to be valid.

The Rodriguez court was concerned with the setting of child support within the parameters established by the Family Code's guidelines, 860 S.W.2d at 415, not, as was the trial court here, with the confirmation and reduction to judgment of child support arrearages. When the child support was established at 18% of Timothy's net resources in the divorce decree and no appeal was taken, the child support was fixed until modified upon application, Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247, 249 (1955), and the trial court was only authorized to confirm the amount of arrearage and reduce it to judgment. Williams v. Patton, 821 S.W.2d at 143. Therefore, the court did not err in confirming the amount of arrearage based on 18% of Timothy's net resources. The second point of error is overruled.

When Janet filed her amended motion to modify in late November of 1993, she alleged the original order provided that child support payments in excess of $550 per month were to be paid on or before April 15 of each year beginning with the year 1990, that Timothy had failed and refused to pay the additional support required for the years 1991, 1992, and the sum that would be due for 1993, and then prayed for the additional child support for the years 1990 through 1993. The...