Latisha Guillory v. Christopher Boykins
442 S.W.3d 682
Tex. App.2014Background
- Child J.T.B. born 2003; 2004 agreed order named Latisha Guillory and Christopher Boykins joint managing conservators; Guillory had primary custody and Boykins owed support.
- Dispute arose when Boykins asserted Guillory voluntarily relinquished primary possession starting in 2009; Guillory disputed and claimed continued primary custody and visitation.
- 2012: Boykins filed emergency modification seeking custody and support changes; court appointed Cheryl Coleman as amicus for the child and entered temporary orders naming Boykins temporary sole managing conservator and supervised visitation for Guillory.
- Trial on merits (Feb 2013) produced evidence about parenting conduct, possession history, and attorney’s fees; trial court rendered a final order appointing Boykins sole managing conservator, ordering Guillory to pay $400/month support, and awarding Boykins’ attorney $11,744—deemed “additional child support” and ordered withheld from Guillory’s wages.
- Guillory appealed, arguing (1) amicus conflict of interest, (2) court lacked pleading support to appoint sole managing conservator, (3) error in treating attorney’s fees as child support and ordering wage withholding, and (4) trial court failed to file findings of fact and conclusions of law.
Issues
| Issue | Plaintiff's Argument (Guillory) | Defendant's Argument (Boykins) | Held |
|---|---|---|---|
| Conflict of interest of amicus (Coleman) | Appointment conflicted due to Coleman’s prior involvement (AG office, 2004); trial court should have disqualified her | Amicus acted and completed work; objection was raised late | Overruled — complaint waived for appeal because Guillory waited until after trial/new-trial motion and did not obtain ruling when motion was passed |
| Trial court lacked authority because Boykins didn’t plead for sole conservatorship | Boykins’ pleadings didn’t request sole managing conservatorship, so final order exceeded pleadings | Issue was tried by implied consent (temporary orders, on-the-record statements, evidence) | Overruled — court found the issue was tried by consent and appointment was permissible |
| Characterizing attorney’s fees as additional child support and ordering wage withholding | Fees awarded in modification (non-enforcement) may not be deemed child support or collected via withholding/garnishment | Fees were reasonable and necessary; enforcement by withholding justified | Sustained in part — trial court erred to the extent fees were deemed additional child support and ordered withheld; award of fees itself affirmed and remanded for proceedings consistent with opinion |
| Failure to file findings of fact and conclusions of law | Trial court failed to file requested findings within rule deadlines, warranting reversal | Guillory’s notice of past-due findings was untimely; error (if any) not harmful | Overruled — complaint waived because past-due notice was filed late; alternatively no harm shown to appellate presentation |
Key Cases Cited
- Tucker v. Thomas, 419 S.W.3d 292 (Tex. 2013) (attorney’s fees may be treated as child support only in child-support enforcement proceedings)
- In re Moers, 104 S.W.3d 609 (Tex. App.—Houston [1st Dist.] 2003) (distinguishing enforcement vs. modification for classifying fees as child support)
- Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991) (judgment must conform to pleadings; trial-by-consent doctrine explained)
- Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287 S.W.3d 771 (Tex. App.—Houston [1st Dist.] 2009) (trial-by-consent analysis: look for evidence the issue was tried)
- Bush v. Bush, 336 S.W.3d 722 (Tex. App.—Houston [1st Dist.] 2010) (preservation requirement: timely objection needed to allow cure)
- Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254 (Tex. 1984) (failure to timely file past-due notice waives complaint about missing findings of fact)