Beck v. Walker

Applying the reasoning of Houston's 1st Court of Appeals to the attorney's fees and expenses here, the court concludes that the fees and expenses are not "actual support" provided for by Texas Family Code

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Click here for the full text of this decision FACTS:A Collin County trial court signed an order under the Interstate Family Support Act in 1997 ordering Jamie Walker to pay Mari Beck $350 per month in child support for the couple’s child. The order was to stay in effect until some time in 2002 when the child turned eighteen years old or until he was no longer enrolled in high school, whichever occurred later. The order also required Walker to maintain health insurance on the child during the same time period, to pay the child’s health-care expenses if there was no health insurance, and to pay the Texas Attorney General $2,450, plus interest, for retroactive child support. Walker later sued Beck in Tennessee to modify visitation, custody and the Collin County child support obligation. Under the Tennessee order, Beck was required to pay Walker’s attorney’s fees and travel expenses. The child was ordered to live with Walker from November 1999 to November 2000, and Beck was ordered to pay child support. In 2000, however, the Tennessee court determined it did not have jurisdiction over the suit and vacated all of its orders. Also in 2000, after moving to Georgia, Beck filed suit in that state to get custody of the child. The suit was dismissed for lack of jurisdiction, and Beck was ordered to pay Walker’s attorney’s fees and travel expenses. In 2001, Beck went back to Collin County to modify child support, enforce Walker’s child support obligation and reimburse health care expenses. Walker generally denied the allegations, stating at one point that there was no arrearage of child support. At a hearing, Beck stated that Walker owed her nearly $14,000 in child support arrears as of September 2002, and produced a Texas Child Support Arrearage Summary Report and a State Registry Payment History. She claimed Walker owed her for certain health care expenses and for 10 payments of $400 Beck made to Walker under the Tennessee order before it was vacated. Though she did not have documentation confirming all 10 payments, she did have one money order, and Walker admitted to receiving some payments. Walker testified that the attorney general’s office had closed his child-support account in September 1999, because it had a zero-balance of child support. He argued he owed only $11,550 from that time to the time of the child’s 18th birthday, but that he was also due credits for the period that the child lived with him, and that Beck still had not paid him attorney’s fees or travel expenses awarded by both the Tennessee and Georgia courts. Walker also testified that he had health insurance for the child from 1997 to 2002. He produced letters to Beck notifying her of the coverage in 1997, as well as health insurance coverage certificates issued from 1998 to 2002. Though he acknowledged there had been a question at one point about the child’s coverage, Walker said he did not have any other notice that the child was not covered by health insurance. Beck’s attorney said he had a contingency fee agreement for 25 percent of the child support arrears, and that his bill for his services would total just under $5,000. The trial court ordered Walker to pay $4,200 in child support arrears and $1,050 in attorney’s fees. Beck made an untimely request for findings of fact and conclusions of law, and the trial court did not enter them. Beck’s motion for new trial was overruled by operation of law. HOLDING:Affirmed in part; reversed and remanded in part; reversed and rendered in part. As Beck does not complain of the trial court’s implied denial of her motion to modify child support, the court affirms that portion of the trial court’s judgment. The court then turns to the judgment regarding child-support arrears. In light of the trial court’s failure to enter findings of fact, the court assumes that the $4,200 amount was arrived at by using Walker’s numbers, that is by subtracting from the $11,550 the amounts he claimed as credits when the child lived with him and the attorney’s fees and travel expenses Beck owed him under the Tennessee and Georgia court orders. Additionally, the court says the $1,050 in attorney’s fees likely came from taking 25 percent of the arrears. The court addresses two issues related to the child-support arrears and looks to Family Code 157.261, 157.262 and 157.263 for guidance. From these statutes the court concludes that, although the amount of arrearages is subject to a counterclaim for offset, a trial court has no authority to reduce or modify the amount of arrearages in rendering judgment. Family Code 157.008 does, however, allow for an affirmative defense to a motion for enforcement of child support. “Under these statutory provisions, Beck had the burden of establishing the arrearage the difference between the payments made by Walker and the payments required under the 1997 Collin County order. . . . Thereafter, Walker had the burden of establishing any counterclaim or offset.” The court rejects Beck’s contention that the amount of arrearages was established as a matter of law. Each side had documentary evidence that showed different amounts due. The court also agrees with Beck that Walker failed to prove his right to various credits. Though the Tennessee orders granting Walker custody were vacated, the child continued to live with Walker for a period, and this could be seen as a voluntary relinquishment on Beck’s part. Accordingly, there was some evidence that Walker was entitled to an offset of the child support due during that period. Walker was not required to provide evidence of his expenditures on the child during this period, either, the court finds, relying on In Re: A.M., 101 S.W.3d 480 (Tex.App. Corpus Christi 2002, pet. filed). The court does agree with Beck, however, that Walker was not entitled to an offset credit for the attorney’s fees and travel expenses awarded by the Tennessee and Georgia courts. This time of offset is not authorized under the Texas Family Code. The court rules that Beck did not show an abuse of discretion in the trial court’s refusal to reimburse her for the payments she made under the Tennessee orders. The court then turns to issues surrounding the provision of health insurance. The court assumes that the trial court impliedly found that Walker provided health insurance for the child as ordered by the 1997 Collin County order and was thus not responsible for health-care expenses incurred by Beck. The court also finds there was some evidence supporting that finding. Based on its finding that the attorney’s fees and travel expenses were wrongly credited to Walker, the court remands also for a new determination of attorney’s fees for Beck once the amount of arrearages is recalculated. OPINION:Jim Moseley, J.; Moseley, FitzGerald and Lang, JJ.

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