      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00445-CV



                                    In the Interest of R. G. G.




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT
       NO. 03-062-F395, HONORABLE MICHAEL JERGINS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In this appeal, Nancy Gee seeks to reverse the portion of the trial court’s decree that

does not order retroactive child support. For the reasons below, we affirm the trial court’s decree.


                                         BACKGROUND

               Nancy Gee and Richard Rocco are the parents of R.G.G., who was born in 1991 while

Gee and Rocco were living together. When R.G.G. was one year old, Gee left Rocco and took

R.G.G. with her. In 2003, Rocco filed a petition to establish paternity. Gee filed a general denial

and prayed for general relief. The trial court entered temporary orders on April 23, 2003, concerning

conservatorship, possession, and temporary child support. At a bench trial, the court heard evidence

from Gee and Rocco, including the parties’ incomes, parental counseling each had completed, child

support Rocco had paid, Gee’s expense for R.G.G.’s health insurance coverage, proposed possession

periods, and whether the parties should have joint managing conservatorship. After trial, the court
entered a decree of paternity declaring Rocco to be R.G.G.’s biological father, appointing Gee as

R.G.G.’s sole managing conservator, and ordering Rocco to pay child support. The court declined

to order payment of retroactive child support.


                                            ANALYSIS

               In her sole point of error, Gee argues that “the trial court abused its discretion by

refusing to order retroactive child support based upon a finding of denial of possession or access,

when no other grounds or theory for denying retroactive child support is supported by the record.”

She asserts that the court violated section 154.011 of the family code, which provides that “[a] court

may not render an order that conditions the payment of child support on whether a managing

conservator allows a possessory conservator to have possession of or access to a child.” Tex. Fam.

Code Ann. § 154.011 (West 2002).


Standard of Review

               We review the trial court’s refusal to order retroactive child support for an abuse of

discretion. See, e.g., Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Garza v. Blanton, 55

S.W.3d 708, 710 (Tex. App.—Corpus Christi 2001, no pet.); In re S.E.W., 960 S.W.2d 954, 955

(Tex. App.—Texarkana 1998, no pet.). The test for an abuse of discretion is whether the trial court

acted without reference to any guiding rules or principles; that is, whether the act was arbitrary or

unreasonable. Worford, 801 S.W.2d at 109. Because findings of fact and conclusions of law were

not requested or filed, it is implied that the trial court made all findings necessary to support its




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judgment. Id. The judgment must be affirmed if it can be upheld on any legal theory supported by

the evidence. Id. We view the evidence in the light most favorable to the trial court’s decision and

disregard entirely that which is opposed to it or contradictory in its nature. Id. We may not

substitute our judgment for that of the trial court on matters committed to the trial court’s discretion.

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).


Retroactive Child Support

                Retroactive child support is available in two separate circumstances: it can be ordered

when child support has not been previously ordered, and it can be ordered to retroactively modify

a child support obligation. Tex. Fam. Code Ann. § 154.009 (West 2002); id. § 156.401(b) (West

2002); Knight v. Knight, 131 S.W.3d 535, 538 (Tex. App.—El Paso 2004, no pet.). Section 154.009

is applicable here, as Gee complains that the court refused to order retroactive child support upon

the establishment of Rocco’s paternity, when child support had not previously been ordered.

                The family code gives the trial court discretion to determine whether to award

retroactive child support when paternity is established; the award is not mandatory. Tex. Fam. Code

Ann. § 154.009(a) (“court may order a parent to pay retroactive child support . . . .”); id. § 154.131(a)

(West 2002) (“child support guidelines are intended to guide court in determining amount of

retroactive child support, if any, to be ordered.”); id. § 160.636(g) (West 2002) (“[o]n a finding of

parentage, a court may order retroactive child support . . . .”); Blanton, 55 S.W.3d at 710; In re J.H.,

961 S.W.2d 550, 551 (Tex. App.—San Antonio 1997, no pet.).




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Gee’s Pleadings

               Courts have required an award of retroactive child support to be supported by

pleadings that seek affirmative relief. See, e.g., Martinez v. Martinez, 61 S.W.3d 589, 590 (Tex.

App.—San Antonio 2001, no pet.) (trial court erred in awarding judgment for child support

arrearages in absence of pleading requesting that relief); In re J.G.Z., 963 S.W.2d 144, 148 (Tex.

App.—Texarkana 1998, no pet.) (mother’s petition failed to request retroactive child support, but

order for retroactive support upheld because mother included request in her motion to modify);

Grundy v. Grundy, 589 S.W.2d 776, 777 (Tex. App.—Dallas 1979, no writ) (appellate court struck

retroactive modification in trial court’s order because mother’s pleadings lacked any claim for

retroactive child support). A request for retroactive child support is a claim for affirmative relief.

See, e.g., In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996) (court characterized mother’s request for

retroactive child support as affirmative relief); Attorney Gen. of Tex. v. Wilson, 878 S.W.2d 690, 691

(Tex. App.—Beaumont 1994, no writ) (court characterized attorney general’s suit for retroactive

child support as a claim for affirmative relief in the form of money judgment).

               Gee’s general denial—her only pleading—did not request retroactive child support.

Gee contends that “several courts have upheld an award of retroactive support in the face of an

insufficient pleading challenge.” In support of this proposition, she cites three decisions that are

distinguishable from this case. See Holley v. Holley, 864 S.W.2d 703, 707 (Tex. App.—Houston

[1st Dist.] 1993, writ denied) (mother’s amended cross motion contained request for retroactive child

support); Aguilar v. Barker, 699 S.W.2d 915, 917 (Tex. App.—Houston [1st Dist.] 1985, writ

denied) (in an involuntary paternity suit, mother’s petition requested affirmative relief of child



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support); In re Lamirault, No. 07-01-0133-CV, 2001 Tex. App. LEXIS 6629, at *2 (Tex.

App.—Amarillo October 3, 2001, no pet.) (not designated for publication).

               In each of these cases, the mother sought the affirmative relief of child support in a

formal pleading. By contrast, Gee failed to file any pleading seeking affirmative relief. In the

absence of Gee’s pleading for such affirmative relief, the court did not abuse its discretion in denying

retroactive child support.


Trial Court’s Decree Does Not Violate Family Code § 154.011

               Gee argues that the trial court abused its discretion by refusing to order retroactive

child support based upon its “finding” that she denied Rocco possession or access to R.G.G. in the

past. She asserts that no other ground or theory for denying retroactive child support is supported

by the record. As proof, Gee asks us to consider the court’s statements at the final hearing.

               Gee did not request, and the court did not make, findings of fact and conclusions of

law. The law is clear that a written judgment controls over a trial court’s oral pronouncement. In

re J.J., 900 S.W.2d 353, 356 (Tex. App.—Texarkana 1995, no writ); Nine Greenway Ltd. v. Heard,

Goggan, Blair & Williams, 875 S.W.2d 784, 787 (Tex. App.—Houston [1st Dist.] 1994, no writ);

Borden, Inc. v. Valdez, 773 S.W.2d 718, 720 (Tex. App.—Corpus Christi 1989, orig. proceeding).

Moreover, the Texas Supreme Court has ruled that a court of appeals is not entitled to consider any

comments that the judge may have made at the conclusion of a bench trial as a substitute for findings

of fact and conclusions of law. In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984); Narvaez v.

Maldonado, 127 S.W.3d 313, 316 n.1 (Tex. App.—Austin 2004, no pet.).




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               In this case, the trial court’s decree states that retroactive child support is not ordered,

without elaboration. The ruling appears beneath the heading titled “Retroactive Child Support” and

provides: “No retroactive child support is ordered in this cause.” Because the trial court’s written

decree does not condition the payment of child support on whether Gee allows Rocco to have

possession of or access to R.G.G., we find that the decree does not violate section 154.011 of the

family code. See Tex. Fam. Code Ann. § 154.011.

               Cases interpreting section 154.011 involve a trial court’s conditioning prospective

child support payments on future access to the child. See, e.g., In re A.N.H., 70 S.W.3d 918, 919-20

(Tex. App.—Amarillo 2002, no pet.) (provision in decree that relieved father of obligation to support

child as long as he was prevented from exercising visitation privileges violated public policy); Seidel

v. Seidel, 10 S.W.3d 365, 369 (Tex. App.—Dallas 1999, no pet.) (trial court’s order improperly made

father’s rights to possession of children and continuation of domicile restrictions contingent upon

his payment of child support judgment); Thurman v. Fatherree, 325 S.W.2d 183, 186 (Tex. Civ.

App.—San Antonio 1959, writ dism’d) (parents’ agreement in decree that attempted to make child

support contingent upon father’s visitation privileges was against public policy and unenforceable)

(citing Hooks v. Bridgewater, 229 S.W. 1114, 1118 (Tex. 1921)).

               Here, the trial court did not improperly condition the payment of child support. Gee

has not demonstrated that the trial court’s denial of retroactive child support was an abuse of

discretion.




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                                         CONCLUSION

               Because we conclude that the district court did not abuse its discretion in refusing to

order retroactive child support, we overrule Gee’s sole point of error and affirm the decree.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: March 31, 2005




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