Is It All in the Timing or the Pleading? Res Judicata & Child Support Enforcement, Opinions, Sept. 19, 2017

The Fourteenth Court of Appeals released its memorandum opinion this morning in In re J.A.L., C.C.L., Jr., C.N.L. & M.R.L., No 14-16-00614-CV, concerning res judicata of enforcement suits. It is also yet another win for friend-of-the-blog, Janice Berg!

Mother and father divorced in October 2008. Father was ordered to pay $5,000/mo in child support. Mother brought her first enforcement suit on April 9, 2013, alleging father failed to make 54 monthly child support payments from November 1, 2008 through April 1, 2013 and requesting he be held in contempt for these violations. The motion also included four future monthly payments (from May through August 2013). A hearing was held on March 3, 2014 at which the trial court granted mother’s motion, finding father in contempt on all 58 violations, and signed a judgment for the arrearages. The order listed 58 unpaid months and concluded that as of August 1, 2013, father owed $168,750.00 plus interest in child support. The order also included a Mother Hubbard clause, that all relief not requested is denied.

Mother filed a second contempt proceeding on July 31, 2015, seeking relief for father’s failure to make child support payments from September 1, 2013, through March 1, 2014. Father filed a motion to dismiss the matter on the grounds of res judicata, alleging that the violations for the seven months before the March 3, 2014, hearing should have been heard  at that hearing. The trial court granted the motion to dismiss and mother appealed.

Mother made four arguments on appeal:  (1) res judicata does not apply because these claims were not litigated and could not have been litigated in the first enforcement proceeding; (2) Father did not meet his summary judgment burden; (3) notice requirements applicable to enforcement proceedings foreclosed Mother’s ability to recover in the first enforcement proceeding for the September 2013-March 2014 arrearages; and (4) recent decisions from the Supreme Court of Texas limit the use of affirmative defenses in enforcement proceedings. The Court of Appeals agreed the first won the day and thus it need not reach the others.

The elements of res judicata are:

1. There is a prior judgment on the merits by a court of competent
jurisdiction;
2. the party currently asserting a claim was also a party to the prior action
or was in privity with a party to the prior action; and
3. the current claims were raised, or could have been raised, in the prior
action.

Mother conceded father met the first two elements, but disputed the third.

Father argued the enforcement motion request for contempt based on prospective violations shows that the September-March arrearages were litigated in the first enforcement proceeding. The COA rejected this argument because: 1) the motion only named the four violations from May through August 2013; 2) the reference to prospective violations was included in the motion’s request for contempt and contempt and money judgment are separate remedies; and 3) the order specifically stated the judgment was for arrearages through August 1, 2013, not prospective violations.

The father also argued the March 2014 order’s Mother Hubbard clause established that the Spetember-March arrearages were litigated in the first enforcement proceeding. The COA rejected this argument because the Supreme Court of Texas has advised courts to exercise caution when attaching significance to Mother Hubbard clauses that are “open to interpretation.” Because the order specifically stated the judgment was for arrearages “as of August 1, 2013,” concluding that the September-March months were litigated as well was a bridge too far.

Father also argued res judicata applied because the September-March months could have been heard in March but mother effectively forever waived her rights to do so when they were not. The COA held that these arrearages were not mature when the first enforcement proceeding was filed in April 2013. (“Res judicata precludes the litigation of related claims that were mature at the time an earlier lawsuit was filed.”). Conversely, res judicata does not bar a claim that was not mature at the time the earlier proceeding was filed. The key date for maturity here is the date of filing, not the date of hearing. The COA further noted Section 157.002(e) of the Texas Family Code provides a movant “may allege repeated past violations of the order and that future violations of a similar nature may occur before the date of the hearing.” (emphasis added) The COA found this language was permissive, and that mother had the option of asserting future violations when she filed her first enforcement proceeding and she did so, but she did so for only four future months, not all months prior to hearing. The COA found that father’s argument would require a movant to assert every future occurrence before the hearing, an interpretation the COA found was contrary to the discretionary language of 157.002(e).

The COA reverse the trial court’s order granting the father’s motion to dismiss and remanded for further proceedings.

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