Norman v. Norman, 2-84-077-CV

• Decision Date: 16 January 1985
• Docket Number: No. 2-84-077-CV,2-84-077-CV
• Parties: William E. NORMAN, Appellant, v. Marsha D. NORMAN, Appellee.
• Court: Texas Court of Appeals

Page 548

683 S.W.2d 548

William E. NORMAN, Appellant, v. Marsha D. NORMAN, Appellee.

No. 2-84-077-CV.

Court of Appeals of Texas,

Fort Worth.

Jan. 16, 1985.

William C. Odeneal, Dallas, for appellant.

Burt Barr & Associates and Burt Barr, Dallas, for appellee.

Before the court en banc.

OPINION

FENDER, Chief Justice.

This is an appeal from a judgment nunc pro tunc entered December 13th, 1983. Appellee (movant below) filed a motion for contempt alleging that appellant was $600 in arrears on his child support payments. Appellant testified at hearing that he had unilaterally reduced the payments from $400 to $200 a month for the months of September, October and November, 1983. Appellant asserted as defenses that (1) he had previously made over-payment to appellee and that (2) since the couple's son had started living with him, newly enacted TEX.FAM.CODE ANN. sec. 14.09(e) (Vernon Supp.1984) permitted him to reduce payments.

After a hearing on the matter, the trial court ruled that appellant was not in contempt of court because he had mistakenly relied on an erroneous interpretation of sec. 14.09(e). However, in his judgment nunc pro tunc the trial court ordered appellant to pay $600 in back child support that he owed. Appellant was also ordered to pay appellee's attorney's fees of $250.00.

We affirm.

In his first point of error appellant asserts that the judge improperly reduced the unpaid child support payments to judgment. Appellant cites authority which states that a reduction to judgment cannot be made unless it was first pled. This reasoning is inapplicable here, however, because the trial court did not reduce the unpaid child support payments to judgment as understood by sec. 14.09(c) of the Texas Family Code. Rather he simply reaffirmed the obligation of appellant to pay child support. The judge's order did not constitute a reduction to judgment because it does not allow appellee to execute on appellant's property in order to satisfy the unpaid child support. In fact, the trial court acknowledged that if appellant refused to pay the back child support payments appellee could come back and file another contempt motion. Appellant's first point of error is overruled.

In his second point of error appellant contends that an award of attorney's fees is not proper since he was not found to be in contempt. However, under TEX.R.CIV.P. 308-A the trial court was authorized to assess attorney's fees based on appellant's default, even though he was not held in contempt. Smith v. Smith, 643 S.W.2d 523, 525 (Tex.App.--Austin 1982).

In his third point of error appellant claims the judgment is against the great preponderance of the evidence. In this regard, appellant urges that his testimony and the testimony of appellee show that appellant had established an affirmative defense to the contempt action as provided by TEX.FAM.CODE ANN. sec. 14.09(e) (Vernon Supp.1984). That provision reads:

(e) If the managing conservator has voluntarily relinquished to a possessory conservator under court order to pay child support the actual care, control, and possession of a child in excess of the court-ordered periods of possession of and access to the child, the possessory conservator may affirmatively plead and prove the fact that he or she has supplied actual support to the child as a defense in whole or part to a motion for contempt for failure to make periodic payments according to the terms of a court order.

Before we can evaluate the evidentiary question here raised by appellant, we must first determine what the legislature meant by a managing conservator "voluntarily relinquishing" a child to a possessory conservator. The trial court reasoned that for there to be a voluntary relinquishment there must be some kind of formal agreement between the managing conservator and possessory conservator, rather than just a de facto change of residence of the child. In other words, a managing conservator cannot merely tolerate or acquiesce in a child's change of residence, she or he must affirmatively agree to it.

We agree. First, we note that "relinquish" means to abandon, to give up, to surrender, or to renounce. Black's Law Dictionary, 1161 (5th ed. 1979). To relinquish a child requires a greater amount of affirmative action than to tolerate or acquiesce in that child's change of residence. Second, we believe that any lesser standard than one of affirmative agreement by the managing conservator would seriously undermine the sanctity of a trial court's determination that the possessory conservator should make child support payments of a certain amount. Further, a lesser standard than one of affirmative agreement would create an environment in which a possessory conservator might be tempted to induce a child to live with him. If the managing conservator then failed to take legal action because of ignorance, fear of high legal fees, or some other similar reason, the possessory conservator could then reduce child support payments.

In applying this standard to the case at bar, we must consider all the evidence, both that in support of and contrary to the trial court's finding that the mother had not voluntarily relinquished the child, to determine if the judgment is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). The record shows that the mother testified that the child in question, a 16-year-old boy, left her residence in April, 1983, and went to reside with his father. The mother stated she knew the child was residing with his father, but she claimed it was without her permission. She admitted...