in the Interest of R.G., a Minor Child
2011 Tex. App. LEXIS 3493
| Tex. App. | 2011Background
- Sophie sought foreclosure of child support liens and a judicial writ of withholding against Frank based on arrearages largely consisting of accrued interest from decades-old late payments.
- Frank timely filed a motion to stay the writ; Sophie filed notices of lien and for withholding, asserting arrears of $33,759.98 as of March 13, 2009.
- Trial court determined the arrears amount and held Sophie’s relief under both Chapters 157 and 158, including attorney’s fees, and found Frank failed to timely request a hearing.
- Frank asserted defenses including collateral estoppel, estoppel, laches, statute of limitations, waiver, and other claims; Sophie asserted the defenses were untimely and barred.
- The court ultimately concluded it lacked jurisdiction to consider Frank’s defenses under section 158.309, adopted a $33,759.98 arrearage amount, and awarded fees; this opinion reverses and remands for proper proceedings.
- The appellate court holds that the trial court did have jurisdiction to hear Frank’s defenses and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had jurisdiction to hear Frank’s defenses | Frank argues 158.309 requires timely hearing and thus limits defenses | Sophie argues lack of timely hearing bars defenses | Trial court had jurisdiction to hear Frank’s defenses under 158.309, reversed for new proceedings. |
| Whether the court was required to conduct a hearing under 158.309 | Frank timely filed motion to stay and sought defenses | Sophie contends 158.309 duties were not triggered by timely filing | Court must set and hold a hearing; the burden lies on the court to schedule the hearing. |
| Whether Frank could defend under 157.323 toward arrearage amount | Defenses should apply to arrearage amount under 157.323 | Sophie used 157.323 to obtain relief; defenses should be available | Defenses under 157.323 were properly available; trial court erred in denying them. |
| Preservation of evidence and sufficiency of evidence regarding arrears | Frank preserved offer of proof showing paid arrears; evidence should be considered | Sophie argued evidence was insufficient or improperly excluded | Record shows preservation of the evidence; evidentiary issues require remand for proper consideration. |
| Whether the arrearage calculation could be deemed res judicata | Arrearage determination under one chapter may bind relief under another | There was no prior final determination on the merits | No res judicata; no prior final merit determination; issue remanded for proper calculation. |
Key Cases Cited
- Attorney General’s Office v. Mitchell, 819 S.W.2d 556 (Tex. App.—Dallas 1991) (failure to timely seek review does not automatically strip court of jurisdiction; focus is on relief entitlement)
- Glass v. Williamson, 137 S.W.3d 114 (Tex. App.—Houston [1st Dist.] 2004) (failure to timely file motion to stay does not divest trial court of jurisdiction; defenses may be heard)
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (final determination on merits required for res judicata; not applicable here)
- In re Taylor, 39 S.W.3d 406 (Tex. App.—Waco 2001) (statutory duty to set a hearing constitutes a ministerial duty)
- In re M.C.R., 55 S.W.3d 104 (Tex. App.—San Antonio 2001) (illustrates complexity in arrearage calculations and caution against mechanical math)
- Medrano v. Medrano, 810 S.W.2d 426 (Tex. App.—San Antonio 1991) (prejudgment interest on unpaid child support as a matter of right)