In the Interest of R.G., a Minor Child.
No. 04-10-00187-CV.
Court of Appeals of Texas, San Antonio.
May 11, 2011.
Rehearing Overruled Sept. 13, 2011.
349 S.W.3d 119
Steven A. Sinkin, Karen L. Marvel, Law Offices of Sinkin & Marvel, San Antonio, TX, for Appellee.
Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, MARIALYN BARNARD, Justice.
OPINION
Opinion by: CATHERINE STONE, Chief Justice.
In the underlying cause, Sophie Gonzales sought and obtained both the foreclo-
BACKGROUND
Sophie and Frank were divorced in 1978. They had one child, R.G. In the divorce decree, Frank was required to pay child support in the amount of $40 per week through the child support registry until R.G. turned 18 or became emancipated. R.G. turned 18 on October 5, 1985. At that time, the Bexar County Child Support Payment Record showed that Frank was $630 in arrears; however, over the next two years, Frank continued to make additional payments through the child support registry totaling $710.
On April 1, 2009, Sophie served Frank with a Notice of Application for Judicial Writ of Withholding, stating that Frank owed $33,759.98 in child support arrears, including interest, as of March 13, 2009, and requesting that $1,489.07 be withheld by Frank‘s employer each month. Within a few days, Frank filed a motion to stay the issuance of the judicial writ of withholding, stating that he was not behind in paying child support. Sophie did not file the Notice of Application with the district clerk until April 23, 2009.
On October 28, 2009, Sophie filed her “First Amended Answer ..., Request for Affirmative Relief, and Notice of Hearing.” In her pleading, Sophie asserted that she issued Notices of Child Support Lien pursuant to
Frank responded to Sophie‘s pleading with his own Defendant‘s Original Answer; Plea in Abatement; Plea to the Jurisdiction; Motion to Rule for Costs; Motion for Relief for Frivolous Pleadings under CPRC 9.001 et. seq.; Motion for Sanctions under CPRC Chapter 10; Original Counterclaim and Jury Demand. In his pleading, Frank noted that his bank had filed a separate interpleader lawsuit based on the actions taken by Sophie, and the interpleader proceeding was set for trial on December 2, 2009. Frank requested an abatement of the underlying proceeding until the conclusion of the interpleader proceeding. Frank asserted
A hearing was held on November 13, 2009. At the conclusion of the hearing, the trial court signed an order finding that Frank was served with the notice of application of writ of withholding on April 1, 2009, and that he failed to request a hearing on his motion to stay within thirty days. Based on this finding, the trial court determined “as a matter of law” that the amount of the child support arrearage was $33,759.98. The order also sustained Sophie‘s objection to Frank‘s failure to request a hearing on his motion to stay within thirty days. The trial court‘s order further provided that Sophie was “granted and rendered a judgment and confirmation of arrears under
Jurisdiction to Consider Frank‘s Defenses
A. Right to Present Defenses under Section 158.309
Within the context of the procedural requirements of Chapter 158 of the Code, the question arises here of whether Frank‘s failure to timely request a hearing
In Glass v. Williamson, 137 S.W.3d 114, 116-17 (Tex.App.-Houston [1st Dist.] 2004, no pet.), the Houston court disagreed with the holding in Mitchell. In Glass, the appellate court considered the obligee‘s argument that the trial court was without jurisdiction to consider the obligor‘s contest of the amount of arrearages because the obligor failed to timely file a motion to stay. Id. at 116. The court first noted that in 2000, the Texas Supreme Court overruled prior precedent characterizing a plaintiff‘s failure to establish a statutory prerequisite as jurisdictional. See id. at 117 (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex.2000)). The Houston court further noted that after Dubai, the focus shifted from whether the district court had subject matter jurisdiction to whether the party requesting relief was entitled to the relief sought. Id. The court held that the obligor‘s failure to timely file a motion to stay did not divest the trial court of jurisdiction. Id. Instead, the issue became whether the obligor was entitled to the relief sought, i.e., entitled to assert his defenses to the arrearage. Id. The court also criticized the Dallas court‘s analogy to administrative adjudications. Id.
All three of these decisions are distinguishable from the instant case because Frank timely filed his motion to stay. As a result, Frank timely sought judicial review. Thus, the issue in this case is further narrowed to whether section 158.309 imposes a duty on the trial court to conduct the hearing or requires the obligor to request the hearing. Construing the meaning of section 158.309 is a question of statutory construction, and issues involving statutory construction are questions of law that are reviewed de novo. Marks v. St. Luke‘s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex.2010).
As previously noted, section 158.309 provides that if a motion to stay is filed, the trial court shall set a hearing and shall hold a hearing on the motion to stay not later than the 30th day after the date the motion was filed.
Although Frank and Sophie each cite case law interpreting language contained in other statutes or rules similar to the language in section 158.309, we need look no further than the
(a) On filing a motion for enforcement requesting contempt, the court shall set the date, time, and place of the hearing and order the respondent to personally appear and respond to the motion.
(b) If the motion for enforcement does not request contempt, the court shall set the motion for hearing on the request of a party.
B. Right to Present Defenses under Section 157.323
Even if the trial court had been correct with regard to Frank‘s right to present defenses under section 158.309, which we have held it was not, Sophie sought relief under both Chapter 158 and Chapter 157. Moreover, the trial court granted relief under both Chapters. The trial court‘s order confirms the amount of the arrears under both
During the hearing, Sophie‘s attorney referred to res judicata as establishing the amount of the arrearage. Presumably, her attorney believed that by obtaining an arrearage determination under the relief requested under Chapter 158, the arrearage determination was res judicata with regard to the relief requested under Chapter 157. In order for the principle of res judicata to apply, however, there must have existed a prior final determination on the merits by a court of competent jurisdiction. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). In this case, there was no prior final determination. Instead, the relief under both Chapter 157 and Chapter 158 was requested and granted in a single hearing.
C. Preservation of Right to Present Evidence
In her brief, Sophie asserts that Frank failed to preserve his complaint regarding the exclusion of the evidence because he failed to offer the evidence. We disagree. The reporter‘s record of the hearing demonstrates that Frank‘s attorney made numerous efforts to offer evidence. Those efforts were, however, thwarted by the trial court‘s determination that it lacked jurisdiction to consider the evidence.
Sophie also asserts Frank‘s offer of proof was not made in the presence of the trial court; therefore, the complaint is not preserved.
Sufficiency
In his fourth point of error, Frank contends the evidence is legally insufficient to support the amount of the arrears because interest did not accrue on the unpaid child support and the Bexar County Child Support Payment Record established that he paid the principal amount of the child support in full. Prejudgment interest is, however, recoverable on unpaid child support as a matter of right. See In re M.C.R., 55 S.W.3d 104, 108 (Tex.App.-San Antonio 2001, no pet.); Medrano v. Medrano, 810 S.W.2d 426, 428 (Tex.App.-San Antonio 1991, no writ). Accordingly, Frank‘s legal sufficiency complaint is based on a flawed premise and is overruled.2
Conclusion
We have determined that the trial court erroneously concluded it was without jurisdiction to hear Frank‘s evidence offered in defense of the claims asserted against him. Accordingly, the trial court‘s order is reversed, and the cause is remanded to the trial court for further proceedings.