Opinions, May 3, 2016: Ex Post Facto Law & Child Support Enforcement

The First District Court of Appeals released one published opinion, Dise v. Dise, No. 01-15-00407-CV, and one memorandum opinion, Hicks v. Hicks, No. 01-15-01011-CV, this morning, while the Fourteenth released a memorandum opinion, In re T.B., No. 14-14-00925-CV.

First, the published opinion, which arises out of the nexus of bankruptcy and family law but concerns statutes of limitation for child support confirmation. The trial court signed the decree of divorce on January 24, 1986, dissolving the marriage between Murphy and Evelina Dise. The trial court awarded managing conservatorship to Evelina over the couple’s one child and ordered Murphy to pay child support. Dise did not make all of his child support payments and the OAG obtained administrative writs of withholding against Dise several times. The child turned 18 in 2003.

In May 2010, the OAG filed a motion to confirm Murphy’s arrearages. A hearing was held in December but Murphy didn’t show. Almost a year later, the trial court entered a default order on October 6, 2011, confirming arrearages of $29,484.31 and ordering Murphy to make monthly installment payments of $200 beginning in January 2011. The trial court also entered an order directing Dise’s employer to withhold from his income.

Murphy moved for new trial, arguing he did not receive notice of the December 8, 2010 hearing and, in fact, he had filed bankruptcy the day before the hearing. What a coincidence.

On his bankruptcy schedules, Murphy listed Evelina as a creditor but did not list the arrearages as a Domestic Support Obligation (“DSO”). He received his discharge in March 2011. In June 2012, the OAG filed a complaint in the bankruptcy court to have the arrearages declared exempt from discharge as a DSO. The bankruptcy court, not surprisingly, agreed the arrearages were a DSO and declared they were exempt from discharge, entering a judgment for $34,405.62.

On December 12, 2013, the trial court took judicial notice of the DSO judgment and, at the OAG’s request, adopted the bankruptcy court’s judgment and confirmed Dise’s child support arrearages in the amount of $34,405.62. Murphy appealed.

Murphy’s sole issue on appeal is that the trial court erred by adopting the bankruptcy court’s judgment because, according to Murphy, the trial court lacked jurisdiction to enter an order confirming the amount of arrearages. He argued Tex. Fam. Code §157.005(b) is a statute of limitations and that the version of the statute that was in effect in 1986 when the decree was signed provided a motion to confirm arrearages must be filed in two years of the child’s turning 18 for the trial court to have jurisdiction to enter judgment confirming arrearages. The basic argument here is that the law at the time was if you can dodge a confirmation action for two years, you’re in the clear.

The version of the statute in effect when the decree was signed was Family Code 14.41(b), which provided that the trial court “retains jurisdiction to enter judgment for past-due child support obligations if a motion to render judgment for the arrearages is filed within two years after (1) the child becomes an adult” or “(2) the date on which the child support obligation terminates pursuant to the decree or order or by operation of law.” But in 1999, the Legislature amended the statute, now §157.005(b) to state:

The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support until the date all current child support and medical support and child support arrearages, including interest and any applicable fees and costs, have been paid.

This is the version that was in effect in 2003 when the child turned 18 and this version, the Court of Appeals observed, eliminates the time period within which a party must file a motion to confirm.

In 2005, the Legislature again amended the time period for which the trial court retains jurisdiction to confirm a total amount of child support arrearages. The current version grants the trial court jurisdiction to confirm arrearages if the motion is filed within 10 years after the date either the child becomes an adult or  on which the child support obligation terminates under the child support order or by operation of law. The Legislature also provided that this 2005 amendment “relating to the enforcement of a child support order rendered before the effective date of this act [June 18, 2005] applies only to a proceeding for enforcement that is commenced on or after the effective date of this Act.”

Murphy argues that the amended versions of §157.005, enacted after the 1986 divorce, are unconstitutional ex post facto laws and should not be retroactively applied to his case. The Court of Appeals disagreed, finding that the statute is, like an administrative writ of withholding, a “procedural vehicle to secure fulfillment of the existing obligation” and cited caselaw which held that “courts of appeals have consistently held that the constitutional ban on retroactive laws does not preclude applying new enforcement tools to old support orders.” See In re A.D., 73 S.W.3d 244, 248 (Tex. 2002).

As applied to this case, the trial court retained jurisdiction to confirm the amount of arrearages if the motion was not filed later than the 10th anniversary of the child turning 18. The child turned 18 in 2003, the motion was filed in 2010. The Court of Appeals affirmed the trial court.

In the First’s other opinion this morning, Hicks v. Hicks, Larry Hicks, appellant pro se, challenged the decree in his divorce from Dawn Hicks, arguing the trial court erred in denying his discovery motion, denying him a jury trial, and not providing him with adequate notice before signing its final decree. The Court of Appeals affirmed.

In his first issue, Larry argued the trial court erred in not providing him with “adequate” notice before it signed the decree. However, Larry signed the final decree, stating that he “approved and consented” to “both [its] form and [its] substance.” Further, the record indicated the divorce was uncontested. The issue was overruled.

In his second issue, Larry contended the trial court erred in not granting his discovery motions, but there was nothing in the record which indicated the trial court ruled on these motions or that Larry objected to the trial court’s refusal to rule. By failing to obtain a ruling on the discovery issues, he waived the issue and did not preserve it for appeal.

In his third and final issue, Larry argued the trial court erred in denying him a jury because he purportedly requested one in the “proposed final decree of divorce” that he filed. That proposed decree stated:

Upon the Court signing this FINAL DECREE OF DIVORCE a jury will be waived. However, in the event that the Court does-not sign this FINAL DECREE OF DIVORCE, a Jury Trial in all things is requested.

Larry did not assert that he paid the jury fee or filed an affidavit of indigence. Even if the Court of Appeals construed the proposed decree as a jury demand, his jury fee was untimely and the trial court was within its discretion to deny the jury request.

 

Turning to the First District Court of Appeals, the court affirmed the trial court’s SAPCR order. Montria Brown, father, and Candus Jack, mother, had a child (If you studied Latin, you might have momentarily expected Montria to be female and Candus male, but not so). Both filed petitions asking to be appointed JMC with primary. Montria appeared pro se, Candus was represented by counsel, and a court-appointed amicus effectively argued for Montria during a multi-day bench trial after which the trial court entered an order appointing both parents JMC, but naming Montria primary (with exclusive rights of education, medical, dental, and surgical). On appeal, Candus challenged the order and the trial court’s failure to make findings of fact and conclusions of law.

On the FF/CL issue, Candus failed to file a notice of past due FF/CL and thereby waived the issue.

The Court of Appeals then reviewed the evidence which included Candus’s allegations of Montria being abusive and Montria’s allegations of Candus’s secreting the child from him. Additionally, Montria, who was employed by Fort Bend ISD as a diagnostician for special needs children, began to suspect the child had developmental issues. The evidence showed Candus delayed consenting to a special needs evaluation such that the amicus obtained a court order for it to proceed. After the child was determined to have autism and speech impairment, the parents agreed the child would participate in an afternoon preschool program specially designed to help the child with his developmental issues. But Candus then refused to take the child to the program. Montria assumed responsibility for taking the child to program. Candus testified at trial she did not believe the child was disabled. She accused Montria of conspiring with the school district professionals. She testified that she took the child to a neurologist who examined him and determined the child was not autistic. Montria testified he was afraid if Candus was primary, the child would not get the necessary special services.

Montria also presented evidence of Candus’ negative behavior during possession and exchanges. There was also evidence the amicus became involved in addressing possession issues and that Candus was repeatedly uncooperative and disrespectful to the Amicus.

This is one of those circumstances where you know which way the ruling will land from the recitation of evidence. After reviewing the Holley best interest factors, the Court of Appeals found the trial court was within its discretion to award Montria primary.

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