                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-11-00403-CV

          IN THE INTEREST OF R.K.S. AND T.G.S., CHILDREN




                         From the County Court at Law
                            Walker County, Texas
                            Trial Court No. 13202A


                          MEMORANDUM OPINION


      In six issues, appellant, the Office of the Attorney General, challenges the trial

court’s “Judgment for Child Support Arrearage.” We reverse and remand.

                                    I. BACKGROUND

      On or about August 14, 1995, the 309th District Court of Harris County, Texas,

ordered appellee, Robert Kevin Smith Sr., to pay child support to Tara Marie Burnett in

the amount of $493.74 per month beginning on September 1, 1995, for the support of the

couple’s two children, R.K.S. and T.G.S. On January 28, 2010, appellant filed a “Motion

for Enforcement of Child Support Order” in the 309th District Court, alleging that
appellee had a child-support arrearage of $114,747.82. Thereafter, on July 14, 2010,

appellee filed a motion to transfer this matter to the Walker County Court at Law,

which was granted by the 309th District Court.

        Subsequently, appellee filed his first amended answer in the Walker County

Court at Law, wherein he denied the allegations in appellant’s motion for enforcement

and asserted the following:

        4. Contrary to the allegations of the Motion for Enforcement of Child
        Support Order, the support obligation was terminated by agreement of
        the parties reduced to writing in accordance with Texas Family Code Sec.
        154.124 and Rule 11 of the Texas Rules of Civil Procedure.

        5. Respondent [appellee] affirmatively pleads accord and satisfaction.

        On April 29, 2011, a hearing was conducted on appellant’s motion to enforce. At

the hearing, both appellee and Tara testified about, among other things, the parties’

agreement. Appellee testified that he had an agreement with Tara to make a $10,000

lump-sum payment and sign a relinquishment of his parental rights so that Tara’s

husband could adopt the children in exchange for not paying past or future child

support. Tara testified that her understanding of the agreement was that she agreed

“not to prosecute and put him in jail at that particular point in time, due to the amount

of money owed . . . .” Tara recounted that appellee’s father agreed to pay her the

$10,000 and stated that appellee “had to go have a vasectomy . . . so that he could not




In the Interest of R.K.S. and T.G.S., Children                                     Page 2
have any more children, because his father was tired of financially supporting the

children that Mr. Smith was having.”1

        Attorney Jack Haney testified that he previously represented Tara and her

husband.        Haney recalled that, on March 13, 2000, appellee signed an affidavit of

relinquishment of his parental rights to his children with Tara. Haney acknowledged

that appellee’s affidavit of relinquishment was valid and properly executed. Thereafter,

Haney prepared a petition to terminate and adopt the children and filed those

documents with the District Clerk in Harris County. Haney also filed a motion to

transfer the termination and adoption case to Walker County, which was granted.

However, at some point in time, Tara and her husband “decided not to proceed with

the termination and adoption.”                   Haney believed that the termination case was

ultimately dismissed for want of prosecution. Apparently, appellee was not notified of

the final disposition of the termination case.

        Believing that his parental rights to the children had been terminated, appellee

made no efforts to maintain a relationship with the children.2 Despite the agreement

between appellee and Tara, appellant communicated to appellee “[a]t various different

times” that he had a large delinquency for not paying child support. Appellee noted




        1   Appellee admitted that he pays child support for two other children he has fathered.

        2 Appellee stated that he was not represented by counsel for the termination case and that he
never received any order actually terminating his parental rights.


In the Interest of R.K.S. and T.G.S., Children                                                     Page 3
that he tried to contact appellant numerous times to explain the parties’ agreement;

however, he was unsuccessful.

        At the April 29, 2011 hearing, appellee, now represented by counsel, was unable

to produce the written agreement that he had with Tara.3                          Nevertheless, in her

testimony, Tara acknowledged the existence of the agreement, though she steadfastly

asserted that the $10,000 lump sum addressed the past amount due that appellant

calculated to be approximately $37,500.

        At the conclusion of the hearing, the trial court entered a “Judgment for Child

Support Arrearage,” wherein the trial court concluded that:

        Respondent, Robert Kevin Smith, Sr. and Respondent, Tara Marie Burnett,
        entered into a written agreement whereby Robert Kevin Smith, Sr. was to
        pay Tara Marie Burnett $10,000.00 and to relinquish his parental rights to
        [R.K.S.], and [T.G.S.], in full and complete satisfaction of any child support
        arrearages and any present and future child support obligation. The
        Court further finds that, although the written agreement was not
        produced in court, its existence was proved by the evidence admitted
        before the Court. The Court further finds that Respondent, Robert Kevin
        Smith, Sr., did, pursuant to said agreement, deliver to Respondent, Tara
        Marie Burnett, $10,000.00 and a properly executed and unrevoked
        voluntary relinquishment of Robert Kevin Smith Sr.’s parent rights with
        regard to [R.K.S.], and [T.G.S.]. The Court further finds that such
        agreement was in the nature of an accord and satisfaction, and that such
        agreement was, and is, in the best interest of the children.

               The Court further finds and confirms that Respondent, Robert
        Kevin Smith, Sr., is in arrears in the amount of $0 for the period September
        1, 1995, through April 29, 2011. Judgment should be awarded against


        3 Despite appellee’s failure to produce the written agreement, appellant acknowledges on appeal
that it cannot challenge the trial court’s finding of fact 5, which pertained to the existence of the written
agreement, because “there is sufficient evidence to support it.”

In the Interest of R.K.S. and T.G.S., Children                                                        Page 4
        Respondent, Robert Kevin Smith, Sr., and in favor of Respondent, Tara
        Marie Burnett, in the total amount of $0 for the arrearages and interest.

                 ....

              The Court further finds that Robert Kevin Smith, Sr., is not
        presently obligated to pay child support to Respondent, Tara Marie
        Burnett, for the support of [R.K.S.], and [T.G.S.].

        At the request of appellant, the trial court entered findings of fact and

conclusions of law. In response to the trial court’s judgment, appellant filed a motion

for new trial, which the trial court denied. This appeal followed.

                                         II. STANDARD OF REVIEW

        Most appealable issues in a family-law case, including a trial court’s ruling on

child-support arrearages, are reviewed under an abuse of discretion standard. Beck v.

Walker, 154 S.W.3d 895, 901 (Tex. App.—Dallas 2005, no pet.). A trial court’s judgment

is reversed only when it appears from the record as a whole that the trial court abused

its discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court abuses

its discretion as to factual matters when it acts unreasonably or arbitrarily. Beck, 154

S.W.3d at 901. A trial court abuses its discretion as to legal matters when it acts without

reference to any guiding principles. Id. at 901-02 (citing Walker v. Packer, 827 S.W.2d 833,

840 (Tex. 1992)).

                                            III. THE AGREEMENT

        After the trial court entered its judgment in this case, and after the parties filed

their briefs, the Texas Supreme Court issued its opinion in Office of Attorney General of
In the Interest of R.K.S. and T.G.S., Children                                        Page 5
Texas v. Scholer, 403 S.W.3d 859 (Tex. 2013). Under strikingly similar facts as the case at

bar, the Scholer Court held that:                “But except for the very narrow circumstance

recognized by law—the obligee’s relinquishment of possession and the obligor’s

provision of support—he may not rely on the other parent’s actions to extinguish his

support duty.”4 Id. at 867. In support of its holding, the Scholer Court noted that “[a]

parent’s duty of support, although often characterized monetarily and used with terms

like ‘arrearages,’ is not a debt owed to the other parent.” Id. at 866. “The [Texas] Family

        4 The lone affirmative defense to a motion for enforcement of child support is codified in section

157.008 of the Texas Family Code, which provides the following:

        (a) An obligor may plead as an affirmative defense in whole or in part to a motion for
            enforcement of child support that the obligee voluntarily relinquished to the obligor
            actual possession and control of a child.

        (b) The voluntary relinquishment must have been for a time period in excess of any
            court-ordered periods of possession of and access to the child and actual support
            must have been supplied by the obligor.

        (c) An obligor may plead as an affirmative defense to an allegation of contempt or of the
            violation of community service requiring payment of child support that the obligor:

                 (1) lacked the ability to provide support in the amount ordered;

                 (2) lacked property that could be sold, mortgaged, or otherwise pledged to raise
                     the funds needed;

                 (3) attempted unsuccessfully to borrow the funds needed; and

                 (4) knew of no source from which the money could have been borrowed or
                     legally obtained.

        (d) An obligor who has provided actual support to the child during a time subject to an
            affirmative defense under this section may request reimbursement for that support
            as a counterclaim or offset against the claim of the obligee.

        (e) An action against the obligee for support supplied to a child is limited to the amount
            of periodic payments previously ordered by the court.

TEX. FAM. CODE ANN. § 157.008 (West 2014). Appellee did not allege this affirmative defense; instead, he
alleged accord and satisfaction, which is not a proper affirmative defense to a motion for enforcement of
child support. See id.; see also Office of the Att’y Gen. of Tex. v. Scholer, 403 S.W.3d 859, 867 (Tex. 2013).

In the Interest of R.K.S. and T.G.S., Children                                                         Page 6
Code characterizes child support as a duty rather than a debt.” Id. (citing TEX. FAM.

CODE ANN. §§ 154.006, .013, .128 (West 2014)). The court further explained that “‘[t]he

obligation which the law imposes . . . on parents to support their children is not

considered a ‘debt’ . . . but a legal duty arising out of the status of the parties.’” Id.

(quoting Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993)). “The child’s welfare underlies

child support enforcement suits, and providing monetary support is part of a parent’s

contribution to that welfare.” Id. “As a result, the parents’ actions, either collectively or

alone, cannot affect the support duty, except as provided by statute.” Id.

        Based on the holding in Scholer, the agreement between appellee and Tara would

have no effect on the amount of child support appellee owes. We do recognize that

appellant agreed to zero out appellee’s $37,529.70 child-support arrearage as of the date

of the purported agreement, January 29, 2001, ostensibly in exchange for the $10,000

lump-sum payment made. However, appellee’s duty to support his children is not

extinguished by the parties’ purported agreement, especially considering that the

parties did not seek court approval of the agreement until approximately ten years later.

See, e.g., Williams v. Patton, 821 S.W.2d 141, 143 (Tex. 1991) (noting that “the legislature

has . . . prohibited self-help by the obligor and obligee in prospectively modifying court-

ordered child support without court approval”). As the Scholer Court mentioned,

        Because payment of child support reflects a parent’s duty to his child,
        furthering the child’s welfare and best interests, estoppel is not an
        affirmative defense to a child support enforcement action. A parent who
        owes that duty must diligently satisfy it. If he is displeased with access,
In the Interest of R.K.S. and T.G.S., Children                                         Page 7
        he may ask the court to modify or enforce the visitation order, or to hold
        the custodial parent in contempt for violating it. If he is unable to pay, he
        may seek a modification of the support order. If he believes his rights and
        his support obligations have been terminated, he should ensure a court
        order reflects that.

403 S.W.3d at 866-67 (internal citations omitted). In this case, appellee did not ensure

that a court order reflected that his support obligation had been terminated at the time

of the purported agreement. Accordingly, though the equities appear to weigh in favor

of appellee, we cannot conclude that the parties’ purported agreement eliminated

appellee’s child-support obligation accruing after January 29, 2001. See id. at 866-67; see

also Williams, 821 S.W.2d at 143.

        Based on the record and the holdings in Scholer and Williams, we must conclude

that the trial court abused its discretion in eliminating appellee’s child-support

obligation accruing after January 29, 2001. See Worford, 801 S.W.2d at 109; Beck, 154

S.W.3d at 901; see also Scholer, 403 S.W.3d at 866-67; Williams, 821 S.W.2d at 143. We

sustain appellant’s issues on appeal and reverse the judgment of the trial court and

remand for proceedings consistent with this opinion.



                                                  AL SCOGGINS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed April 24, 2014
[CV06]
In the Interest of R.K.S. and T.G.S., Children                                          Page 8
