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Click here for the full text of this decision FACTS:Peter William Gonzalez and Linda Anne Tippit were the natural parents of a daughter, though they were never married. Gonzalez petitioned to establish his paternity and parental rights in 1996. Agreed temporary orders were entered naming both parents as joint managing conservators. Gonzalez was to pay $200 per month in child support, and he had visitation rights of six hours on each of two days, plus one overnight visit each week. Approximately two months after the orders were issued, in May 1996, Tippit and the child moved in with Gonzalez. Gonzalez consequently stopped paying child support for the six to eight months they remained together. Gonzalez did not resume the payments, however, after Tippit and the child moved out. Tippit filed a motion to recover $13,400 in unpaid child support. Gonzalez answered by pleading a statutory affirmative defense under Family Code 157.008. He also filed a counterclaim for offset credits. Gonzalez claimed he and Tippit agreed to expand Gonzalez’s visitation with the child and, according to Gonzalez, the girl lived with him half of the time. Gonzalez also contended that he has provided $28,000 in support in the form of private school tuition. Tippit argued that the tuition was paid for by Gonzalez’s brother. Though Gonzalez didn’t deny that his brother was responsible for the money, he argued that his brother was loaning him the money. The trial court held Gonzalez in contempt of court for failure to pay child support from September 1997 to May 2003, denied Gonzalez’ request for offsets, and assessed arrearages at $13,400. HOLDING:Affirmed. The court explains that 157.008 provides an affirmative defense to a motion to enforce child support if the obligee (Tippit) voluntarily relinquished actual possession and control of the child to the obligor (Gonzalez) in excess of court-ordered visitation and the obligor (Gonzalez) supplies actual support during this period. The court further explains that this affirmative defense has two prongs: there must be voluntary relinquishment in excess of court-ordered possession and access, and the obligor provided actual support. The court confirms that the legislature intended for these two prongs to be read in conjunction with one another. There is nothing to indicate the legislature intended courts to presume there has been support once a finding of relinquishment has been made, as Gonzalez argues. “We hold that obligors asserting this affirmative defense must plead and prove both prongs of section 157.008.” Reviewing Gonzalez’s proof, then, the court notes that Gonzalez’s brother did not testify and Gonzalez did not provide any paperwork to support Gonzalez’s contention that the money his brother paid was a loan. On the other hand, Tippit denied that she requested the tuition, arguing that private school was Gonzalez’s idea, and insisting that Gonzalez’s brother made a gift of the tuition. The court thus holds that there was sufficient information upon which the trial court could exercise its discretion in determining that Gonzalez did not carry his burden of showing he provided actual support. Additionally, the trial court’s decision was not arbitrary or unreasonable. Based on its ruling that Gonzalez did not prove that he provided actual support, the court finds it unnecessary to consider whether Tippit voluntarily relinquished the child to Gonzalez for periods in excess of the court-ordered visitation. OPINION:Puryear, J.; Law, C.J., Patterson and Puryear, JJ.

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