

Opinion issued May 19,
2011

In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-09-00991-CV
————————————
HAROLD HOLMES,
Appellant
V.
amy williams and
THE office of the attorney general OF texas, Appellees
 

 

 
On Appeal from 309th District Court
Harris
County, Texas

Trial Court Cause No.
703024
 

O P I N I O N
          Appellant,
Harold Holmes, appeals a judgment in favor of appellee, Amy Williams,
determining and rendering judgment for child-support arrearages, including accrued interest, and
ordering that Williams be entitled to issue child-support liens, levies, and
writs of income withholding as remedies for the collection of unpaid child support.  Challenging on the grounds of dormancy and
lack of subject-matter jurisdiction, Holmes contends that the trial court erred
by determining and rendering judgment
for child-support arrearages and ordering that Williams be entitled to
the collection remedies.  We conclude
that dormancy is inapplicable to overdue child-support payments and that the trial
court had jurisdiction to determine and render judgment for child-support
arrearages and order that Williams be entitled to the collection remedies.  Holmes also contends that Williams’s notice
of child-support liens was improper as a matter of law and that the trial court
abused its discretion by failing to file findings of fact and conclusions of
law.  We conclude that any impropriety in
Williams’s child-support lien or the trial court’s failure to file findings of
fact and conclusions of law is harmless. 
We affirm.
Background
          In
June 1965, Williams and Holmes were married. 
In December, Williams gave birth to their only child, Glenna.  The following November, the trial court
entered a default final divorce decree, stating that Holmes, although legally
cited to answer, failed to answer or appear at trial.  The decree required that Holmes pay $10 per
week in child support for Glenna.  From
1966 through March 1978, Holmes failed to make any child-support payments.
          In
early 1978, an attorney acting on Williams’s behalf contacted Holmes.  Through their attorneys, Williams and Holmes
entered into a verbal agreement concerning the child-support obligation.  Pursuant to their agreement, Holmes paid
Williams a lump sum of $1,500 in April. 
Beginning in May, Holmes paid Williams $125 per month in child support
until Glenna turned 18 years old in December 1983.
          On
July 19, 2005, when Glenna was 39 years old, William filed a notice of
child-support lien with the county
clerks for Harris County, Texas, Fort Bend County, Texas, and Los Angeles
County, California, alleging $142,090.69 as the “[a]mount of child-support
arrears” as of that date.  The next day,
Williams filed copies of the notice with financial institutions holding
Holmes’s financial accounts.  In the
accompanying cover letters, Williams stated that any accounts to which the lien
applied must be immediately frozen.
          Holmes responded by filing an
emergency motion to release child-support liens, dispute the amount of
arrearages stated in child-support liens, and resolve the ownership interest
with respect to property subject to child-support liens, pursuant to section
157.323 of the Texas Family Code. 
Williams subsequently filed notice of writ of withholding with the trial
court pursuant to section 157.301.
          On December 18, 2007, the trial court
heard legal arguments and evidence at the trial of this matter.  Earlier that day, Holmes filed a trial brief,
and the Office of the Attorney General of Texas (OAG) filed an intervention,
although it did not participate in the trial.
          On October 1, 2009, the trial court
signed a final order stating:
IT IS ORDERED that Amy Williams in granted and rendered a judgment for
child support arrearages, including accrued interest against Harold F. Holmes
in the amount of $49,934.70 as of June 19, 2009, the date of rendition of this
judgment, such judgment bearing interest at 6 percent simple interest per year
until the judgment is paid and is rendered on June 19, 2009.
 
. . .
 
IT IS ORDERED that Amy Williams is entitled to issue child support liens,
levies, and writs of income withholding as remedies for the collection of
unpaid child support, and all remedies available to enforce the child support
arrearage judgment enumerated above shall be payable as permitted by the Texas
Family Code and through this Court’s Employer’s Order Withholding from Harold
Holmes’s Earnings with the following exceptions . . . .
 
The
court also granted a judgment against Holmes for $5,000 in attorney’s fees plus
an additional $3,000 if he unsuccessfully appealed to an intermediate court of
appeals and an additional $2,000 if he then unsuccessfully petitioned for
review to the Supreme Court of Texas. 
The court also granted a judgment against Holmes for $552.08 in court
costs.
          Holmes timely filed a request for
findings of fact and conclusions of law and timely filed a notice of past-due
findings of fact and conclusions of law. 
After Holmes gave notice of this appeal, this Court ordered the judgment
in this case be suspended until the resolution of this appeal.  Within 30 days of that order, this Court
withdrew it and ordered that the funds withheld from Holmes be deposited in the
trial court registry pending resolution of this appeal.
Time
Limitations
 
          In his first issue, Holmes contends that
the trial court erred by rendering judgment for the total amount of
child-support arrearages, including accrued interest, attorney’s fees, and
court costs.  In particular, Holmes bases
this contention on the limitation of a court’s jurisdiction to confirm and
render a cumulative judgment for child-support arrearages, provided in Texas
Family Code, and the dormancy provision, found in the Texas Civil Practice and
Remedies Code.  See Tex Civ. Prac & Rem.
Code §§ 31.006 (West 2008), 34.001(a) (West Supp. 2010); Tex. Fam. Code. Ann. § 157.005(b) (West
Supp. 2010).
          A.      Standard of
Review
In
construing a statute, a court must “ascertain and give effect to the Legislature’s
intent.”  HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex.
2009).  A court begins
with the “plain and common meaning of the statute’s words” to ascertain the
Legislature’s intent.  Id. (quoting
Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642
(Tex. 2004)).  A
court considers
the statute as a whole and not its provisions in isolation.  City of
Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010).  A court also considers the objective the
Legislature sought to achieve through the statute as well as the consequences
of a particular construction.  HCBeck,
284 S.W.3d at 352 (citing Tex. Gov’t
Code Ann. § 311.023(1), (5) (West 2005)).  An appellate court reviews de novo questions
of statutory construction.  MCI Sales & Serv., Inc. v. Hinton,
329 S.W.3d 475, 500 (Tex. 2010).  Similarly,
an appellate court reviews de novo questions of subject-matter
jurisdiction.  City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010).
          B.      Jurisdiction         
           In his first issue, Holmes contends section
157.005(b) of the Texas Family Code deprived the trial court of jurisdiction to
determine and render a judgment for child-support arrearages because more than
10 years passed since his daughter attained 18 years of age and the
child-support obligation terminated. 
Holmes interprets the jurisdictional time limit in section 157.005(b) as
applying to every private enforcement mechanism contained in the Texas
Family Code—cumulative
money judgments, child-support liens, child-support levies, and wage
withholdings.  Section 157.005(b) states:
The
court retains jurisdiction to confirm the total amount of child support
arrearages and render a cumulative money judgment for past-due child support,
as provided by Section 157.263, if a motion for enforcement requesting a
cumulative money judgment is filed not later than the 10th anniversary after
the date:
 
(1)      
the child becomes an adult; or
 
(2)      
on which the child support obligation terminates
under the child support order or by operation of law.
 
Tex. Fam. Code Ann.
§ 157.005(b).  The plain language of section 157.003(b)
unambiguously indicates that it applies only to cumulative money
judgments for past-due child support as provided by section 157.263.  Isaacs
v. Isaacs, --- S.W.3d ---, ---, No. 14-09-01091-CV, 2011 WL 1238381, at *2
(Tex. App.—Houston
[14th Dist.] Apr. 5, 2011, no. pet. h.), see
Tex. Fam. Code Ann.
§ 157.005(b).  Section 157.263(a) states, “If a
motion for enforcement of child support requests a money judgment for
arrearages, the court shall confirm the amount of arrearages and render one
cumulative money judgment.”  Tex. Fam. Code Ann. § 157.263(a)
(West 2008).
          Holmes’s daughter attained 18 years of
age in December 1983, at which point his child-support obligation
terminated.  Pursuant to section
157.005(b), in December 1993, the trial court lost jurisdiction to confirm the
total amount of child-support arrearages and render a cumulative money judgment
for past-due child support as provided by section 157.263 because Williams had
failed to file a motion for enforcement. 
See id. § 157.005(b).  However, Williams never sought and the trial
court never granted relief under section 157.263.  See
Isaacs, --- S.W.3d at ---, 2011 WL 1238381, at *2; Overton v. Overton, No. 14-09-00865-CV, 2011 WL 398046, at *3–4
(Tex. App.—Houston
[14th Dist.] Feb. 8, 2011, no pet.) (mem. op.) (applying similar analysis under
2005 version of section 157.005(b)).  A
cumulative money judgment for past-due child support results only after the
obligee files a motion for the enforcement of child support requesting a money
judgment for arrearage.  Tex. Fam. Code Ann. § 157.263(a); see Isaacs, --- S.W.3d at ---, 2011 WL
1238381, at *2; Overton, 2011 WL
398046, at *3–4.  This litigation is not
premised on a motion for the enforcement of child support requesting a money
judgment for arrearage.  Instead, this
litigation began when Holmes invoked the jurisdiction of the trial court to
dispute the amount of arrearages stated in Williams’s notices of child-support
liens, pursuant to section 157.323.
          Section
157.323(a) provides that an obligor may bring “an action . . . to
dispute the amount of arrearages stated in the [child-support] lien
. . . .”  Tex. Fam. Code Ann. § 157.323(a) (West 2008).  “If
arrearages are owed by the obligor, the court shall . . . render
judgment against the obligor for the amount due, plus costs and reasonable
attorney’s fees . . . .”  Id. § 157.323(c)(1).  Section 157.318(a) expressly provides that a
child-support “lien is effective until all . . . child support
arrearages, including interest, any costs and reasonable attorney’s fee
. . . for which the obligor is responsible, have been paid or the
lien is otherwise released as provided by this subchapter.”  Id.
§ 157.318(a) (West Supp. 2010); see
Isaacs, --- S.W.3d at ---,
2011 WL 1238381, at *2 (“Under the unambiguous language of these statutes, [the
obligee] has several cumulative remedies by which she can choose to seek
payment of unpaid child support. 
. . . Under its unambiguous language, section 157.005(b) does
not limit the trial court’s jurisdiction to grant [relief under sections 157.323].”);
Overton, 2011 WL 398046, at *3–4
(judgment for arrears under section 157.323 are not prohibited by section
157.005(b)).  We conclude that section 157.005(b)
only limits jurisdiction over actions brought pursuant to section 157.263—cumulative money
judgments for past-due child support—and
that it does not preclude jurisdiction here because the trial court obtained
jurisdiction under section 157.323—disputes
as to the amount of arrearages stated in a child-support lien.
          C.      Dormancy
          Holmes contends that a child-support
payment not timely made for which a writ of execution is not issued within 10
years of the due date is dormant and if not revived within two years, can no
longer be revived.  Holmes observes that
“[a] child support payment not timely made constitutes a final judgment for the
amount due and owing, including interest as provided in this chapter.”  Tex.
Fam. Code Ann. § 157.261(a) (West 2008).  Holmes contends that each overdue
child-support payment, therefore, went dormant after 10 years pursuant to
section 34.001(a) of the Texas Civil Practice and Remedies Code, which states:
If a writ of
execution is not issued within 10 years after the rendition of a judgment of a
court of record or a justice court, the judgment is dormant and execution may
not be issued on the judgment unless it is revived.
 
Tex Civ. Prac & Rem. Code § 34.001(a); see id. § 31.006 (West 2008) (“A dormant judgment may be
revived by scire facias or by an action of debt brought not later than the
second anniversary of the date that the judgment becomes dormant.”).
          From 1997, when this question was
first considered on appeal, until 2007, Texas courts unanimously held that
dormancy did not apply to individual, overdue child-support payments.  In re
K.K., No. 02-04-00269-CV, 2006 WL 133506, at *3–4 (Tex. App.—Fort Worth
June 19, 2006, no pet.) (mem. op.); In re
J.M.D., No. 14-03-01196-CV, 2006 WL 1148113, at *1 (Tex. App.—Houston [14th
Dist.] March 30, 2006, pet. denied) (mem. op.); In re E.C.M., 225 S.W.3d 11, 13 (Tex. App.—El Paso 2005, no pet.); In re J.M.R., No. 04-03-00284-CV, 2004
WL 1392284, at *2 (Tex. App.—San Antonio June 23, 2004, no pet.); In re S.C.S., 48 S.W.3d 831, 835–36
(Tex. App.—Houston [14th Dist.] 2001, pet. denied); In re Kuykendall, 957 S.W.2d 907, 911 (Tex. App.—Texarkana 1997, no
pet.); see also In re D.T., No. 12-05-00420-CV, 2007 WL 4465250, at *2 (Tex.
App.—Tyler Dec. 21, 2007, no pet.) (mem. op.). 
One week before the trial in the present matter, the Dallas Court of
Appeals, explicitly rejecting its sister courts’ interpretation, held for the
first time that dormancy applied to individual, overdue child-support
payments.  Burnett-Dunham v. Spurgin, 245 S.W.3d 14, 17 (Tex. App.—Dallas
2007, pet. denied).  We have never
expressed an opinion on the applicability of dormancy to individual, overdue
child-support payments.  See Cobb v. Gordy, No. 01-09-00764-CV,
2011 WL 494801, at *2–3 (Tex. App.—Houston [1st Dist.] Feb. 10, 2011, no. pet.
h.).
          In 2009, at the first legislative
session following the Burnett-Hunham
opinion, the Texas Legislature amended section 34.001 of the Civil Practice and
Remedies Code for the first time since its enactment, to explicitly state,
“This section does not apply to a judgment for child support under the Family Code.”  Act of May 28, 2009, 81st Leg. R.S., ch. 767,
§ 31, sec. 34.001, 2009 Tex. Gen. Laws 1938, 1948 (codified at Tex. Civ. Prac. & Rem. Code Ann. §
34.001(c)).  The Legislature expressly
provided that section 34.001(c) “applies to each judgment for child support
under the Family Code, regardless of the date on which the judgment was
rendered.”  Id. § 50, 2009 Tex. Gen. Laws at 1950.  Holmes contends that the retroactive
application of section 34.001(c) to him would violate the Texas
Constitution.  See Tex. Const. art.
I, § 16 (“No . . . retroactive law . . . shall be
made.”).
          Legislative inaction over numerous
sessions after a judicial interpretation of a statute suggests approval of that
interpretation.  Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866
(Tex. 1975); Moss v. Gibbs, 370
S.W.2d 452, 458 (Tex. 1963); Adams v.
City of Weslaco, No. 13-06-00697-CV, 2009 WL 1089442, at *8 (Tex.
App.—Corpus Christi Apr. 23, 2009, no pet.) (mem. op.); State v. Airgas-Mid South, Inc., 83 S.W.3d 890, 892 (Tex.
App.—Texarkana 2002, no pet.); Blount v.
Dutton, 967 S.W.2d 955, 957 (Tex. App.—Beaumont 1998, no pet.); Reed v. State of Texas Dep’t of Licensing
& Regulation, 820 S.W.2d 1, 4 (Tex. App.—Austin 1991, no writ).  Conversely, an appellate court may look to
later amendments for guidance in statutory interpretation.  Cash
Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 17–18 (Tex. 2000).  A statutory amendment that codifies a prior
judicial interpretation is not unconstitutionally retroactive.  In re
W.G.S., 107 S.W.3d 624, 630 (Tex. App.—Corpus Christi 2002, no pet.)
(amendment to Family Code that codified principle already extant in common law
was not unconstitutionally retroactive); see
Armstrong v. Steppes Apartments, Ltd., 57 S.W.3d 37, 48 (Tex. App.—Fort Worth
2001, pet. denied) (holding law is not retroactive where it does not affect
substantive change).
          The Legislature’s persistent inaction
following the consistent judicial interpretation of every court of appeals
before Burnett-Dunham, combined with
its swift action following Burnett-Dunham,
indicates the Legislature approved of the interpretation that dormancy did not
apply to an individual, overdue child-support payment.  As it applies to an individual, overdue
child-support payment, the Legislature’s 2009 amendment codifies this prior
interpretation of section 34.001, announced by every court of appeals
considering the question before the Dallas Court of Appeals’ decision in Burnett-Dunham, which the amendment
rejects.  See Cobb, 2011 WL 494801, at *2–3. 
Concluding that the 2009 amendment codifies this prior judicial
interpretation, we hold that the 2009 amendment is not unconstitutionally
retroactive as it applies to this case.  See In
re W.G.S., 107 S.W.3d at 630.
          We overrule Holmes’s first issue.
Propriety
of Notice of Child-Support Lien
          In his second issue, Holmes contends
that Williams’s notice of child-support lien, issued to the financial
institutions, was improper as a matter of law. 

          A.      Applicable Law
          “A child
support lien arises by operation of law against real and personal property of
an obligor for all amounts of child support due and owing, including any
accrued interest, regardless of whether the amounts have been adjudicated or
otherwise determined, subject to the requirements of this subchapter for
perfection of the lien.”  Tex. Fam. Code Ann. § 157.312(d)
(West 2008).  “[A] child support lien is
perfected when an abstract of judgment for past due child support or a child
support lien notice is filed or delivered as provided by Section 157.314.”  Id.
§ 157.316(a)
(West Supp. 2010).  “[A] child support
lien notice must contain . . . the amount of child support arrearages owed by
the obligor and the date of the signing of the court order, administrative
order, or writ that determined the arrearages or the date and manner in which
the arrearages were determined . . . .”  Id. § 157.313(a)(5) (West 2008).
          B.      Analysis
          Holmes accurately observes that the
notice fails to state the manner in which the child-support arrearages were
determined.  Because at that point, no
judicial or administrative determination of child-support arrearages had been
made, a statement of the manner of determination was required for Williams to
perfect her child-support liens.  See id. § 157.313(a), 157.316.  Nevertheless, nothing in the trial court’s
final order is to the contrary.  The
trial court rejected the determination of child-support arrearages stated in
Williams’s notice and made a new determination. 
The trial court then ordered that Williams be “entitled to issue child
support liens [and] levies . . . .” 
The trial court made no determination concerning the perfection of
Williams’s child-support liens.  
          We overrule Holmes’s second issue.
Failure
to File Findings of Fact and Conclusions of Law
          In his third issue, Holmes contends
that the trial court abused its discretion by failing to file findings of fact
and conclusions of law for the final order. 
Holmes asserts that he was harmed because “[t]he trial court’s failure
to file findings of fact and conclusions of law requires [him] to guess as to
the reasons that the trial court thought it had jurisdiction to make a
determination of child support [arrearages], interest thereon and attorney
[sic] fees . . . .”
          “Because the trial court’s duty to
file findings and conclusions is mandatory, the failure to respond when all
requests have been properly made is presumed harmful, unless ‘the record before
appellate court affirmatively shows that the complaining party has suffered no
injury.’”  Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)
(quoting Wagner v. Riske, 142 Tex.
337, 343, 178 S.W.2d 117, 120 (1944)). 
The failure to file findings of fact is harmful error if the appellant
is thereby prevented from making an appeal. 
White v. Harris-White, No.
01-07-00521-CV, 2009 WL 1493015, at *6 (Tex. App.—Houston [1st Dist.] May 28,
2009, pet. denied) (mem. op.); Panchal v.
Panchal, 132 S.W.3d 465, 467 (Tex. App.—Eastland 2003, no pet.).  The remedy for such a harmful error is for
the reviewing court to abate the appeal. 
White, 2009 WL 1493015, at *6;
Panchal, 132 S.W.3d at 467.  The controlling issue is whether the
circumstances of the particular case require the appellant to guess at the
reasons for the trial court’s decision.  White, 2009 WL 1493015, at *6 (citing Goggins v. Leo, 849 S.W.2d 373, 379
(Tex. App.—Houston [14th Dist.] 1993, no writ); Awad v. Rasmussen-Awad, 2004 WL 744234, at *3 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) (memo op.)).
          However, findings of fact are
unnecessary if the matters in question are not disputed.  Landerman
v. State Bar of Texas, 247 S.W.3d 426, 430 (Tex. App.—Dallas 2008, pet.
denied) (quoting Barker v. Eckman,
213 S.W.3d 306, 310 (Tex. 2006)); Rollins
v. Am. Exp. Travel Related Servs. Co., Inc., 219 S.W.3d 1, 5–6 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). 
Accordingly, where the facts are undisputed and the only matters
presented on appeal are legal issues to be reviewed de novo, the failure to
file findings of fact and conclusions of law is harmless error.  Landerman,
247 S.W.3d at 430–31 (quoting Rollins,
219 S.W.3d at 5–6).  The only issues
Holmes presents on appeal concern the trial court’s jurisdiction and statutory
construction, both of which are questions of law reviewed de novo.  See MCI
Sales & Serv., 329 S.W.3d at 500;
City of Elsa, 325 S.W.3d at 625.  We
conclude that any error in failing to file findings of fact and conclusions of
law is harmless.
          We overrule Holmes’s third issue.
Conclusion
 
We affirm.
 
                                                                   Elsa
Alcala
                                                                   Justice

 
Panel
consists of Chief Justice Radack and Justices Alcala and Bland.

