                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-022-CV


PATRICIA A. PACKARD                                               APPELLANT

                                        V.

REX V. DAVIS                                                        APPELLEE

                                    ------------

            FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                I. INTRODUCTION

      Appellant Patricia A. Packard appeals the trial court’s enforcement order

determining that Appellee Rex V. Davis owes a child support arrearage of

$19,614.46 inclusive of interest and costs. In two issues, Patricia claims that

the trial court abused its discretion by determining that this arrearage amount




      1
          … See Tex. R. App. P. 47.4.
was inclusive of interest and costs and by ordering that each party is

responsible for his or her own attorney’s fees. We will affirm.

                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

        Patricia and Rex divorced in 1978. During the marriage, the couple had

a daughter and a son. The agreed decree of divorce ordered Rex to pay child

support until the youngest child reached the age of eighteen or was “otherwise

emancipated.” In 1988, the trial court held Rex in contempt for failure to pay

child support in the amount of $3,750 and issued a withholding order to collect

the child support. Thereafter, Rex’s youngest child reached the age of eighteen

in 1991 and graduated from high school in 1992.

        Thirteen years elapsed, and in May 2005, Patricia’s attorney requested

reissuance of the 1988 contempt order, and the Parker County District Clerk’s

office reissued the order to Rex’s employer to withhold child support from his

paychecks. Rex responded with a motion to terminate the 1988 order and the

notice to withhold. Patricia countered by filing a July 7, 2005 “Counter-Motion

to Confirm Child Support Arrearage.”        Rex answered, challenging the trial

court’s jurisdiction to confirm any child support arrearage.       The trial court

thereafter stayed the withholding order, ordered Rex to make payments into the

court’s registry, and asked the parties to submit briefs on the legal issues in the

case.    Ultimately, the trial court denied Rex’s petition to terminate the

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withholding provision from the 1988 contempt order 2 and set the case for an

evidentiary hearing “to determine the amount of arrearage due.”

      The question of what child support payments had been made by Rex was

hotly contested.3      Patricia testified that she had received only fourteen

payments that Rex made through the Parker County child support office, that

she did not receive any payments directly from Rex, and that she had not

received a payment from Rex since 1989. Rex, however, testified that he

made payments directly to Patricia because she said that she needed the money

faster than the child support office could get it to her. Rex claimed that in

1988, the trial court had found that he had made payments directly to Patricia

because there were canceled checks; Rex pointed to the fact that at that time,

his arrearage was only $3,750 despite the fact that the administrative

payments records reflected only fourteen payments made by him since the

1978 divorce. Rex testified that Patricia never called to say that she had not

received a payment and never tried to collect this alleged arrearage between

1988 and 2005.        According to Rex, he had paid all of his child support



      2
          … Neither party challenges the 1988 wage withholding order on appeal.
      3
       … Patricia claims there was a stipulation on this issue, but the record
reflects that Rex stipulated only to the amount of payments he made through
the child support office and that Rex claimed he made additional, direct
payments to Patricia.

                                        3
obligation and then some.4    Rex’s wife, Janice, testified that she had sent

checks to Patricia until the youngest child turned eighteen; she explained that

they no longer had records of those payments because she and Rex had

remodeled their home and at that time had discarded the old canceled child

support checks.

      After hearing this evidence, the trial court found that the total amount of

the arrearage was “$21,014.46, inclusive of interest and costs, as of July 31,

2007“ and that Rex had made $1,400 in payments to the court registry,

leaving a total balance of $19,614.46. The trial court’s enforcement order

required Rex to pay $350 per month to Patricia and contained a provision

ordering any employer of Rex to withhold from Rex’s earnings this monthly

child support payment. The trial court also entered an employer’s order to

withhold from earnings for child support arrearages. The trial court did not

make findings of fact or conclusions of law.

      Patricia filed a notice of appeal, challenging the trial court’s order

confirming the child support arrearage because it failed to award her interest,

reasonable attorney’s fees, and court costs.




      4
      … The evidence revealed that Rex was currently making his daughter’s
student loan payments.

                                       4
                                    III. J URISDICTION

        Before reaching the merits of Patricia’s arguments, we must address

whether the trial court had jurisdiction to sign an enforcement order and a wage

withholding order. Rex argues here, as he did in the trial court, that the trial

court did not have jurisdiction to determine the arrearage owing, if any, under

the version of section 157.005(b) of the Texas Family Code that was in effect

at the time Patricia filed her motion to enforce requesting wage withholding.5

        The version of section 157.005(b) in effect when Patricia filed her

“Counter-Motion to Confirm Child Support Arrearage” provided, in pertinent

part,

        (b) The court retains jurisdiction to confirm the total amount of
        child support arrearages and render judgment for past-due child
        support if a motion for enforcement requesting a 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.

Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 21, 2005 Tex. Gen. Laws

3148, 3155 (amended 2007) (current version at Tex. Fam. Code Ann.

§ 157.005(b) (Vernon 2002)). Rex claims that under this provision, Patricia




        5
            … Rex did not file his own notice of appeal.

                                            5
was required to file her countermotion within ten years of the emancipation of

their youngest child, which she did not do.

      The trial court here, however, signed an enforcement order and an order

for wage withholding under chapter 158 of the family code; 6 it did not render

a cumulative judgment for past-due child support as prohibited by section

157.005(b).    And in 1997, the legislature amended family code section

158.102 to delete a four-year jurisdictional deadline imposed upon trial courts

to enforce child support obligations through income withholding and stated that

such amendment applies to any suit not already pending as of the effective date

of the legislation. See Act of May 21, 1997, 75th Leg., R.S., ch. 911, § 40,

1997 Tex. Gen. Laws 2864, 2872–73 (current version at Tex. Fam. Code Ann.

§ 158.102 (Vernon 2002)). Thus, section 158.102 now contains no express

deadline on the trial court’s jurisdiction to enter an order that provides for

income withholding and authorizes the entry of such an order “until all current

support and child support arrearages, interest, and any applicable fees and

costs have been paid.” Tex. Fam. Code Ann. § 158.102; accord In re A.D., 73

S.W.3d 244, 249 (Tex. 2002) (recognizing that administrative wage




      6
      … Section 157.001(c) specifically authorizes an enforcement action
under either chapter 157 or chapter 158. Tex. Fam. Code Ann. § 157.001(c)
(Vernon 2002).

                                      6
withholding by the Attorney General’s office is available regardless of how long

an obligor has avoided his court-ordered support duty); Attorney Gen. v.

Redding, 60 S.W.3d 891, 895 (Tex. App.—Dallas 2001, no pet.) (same). We

thus hold that, based on the plain language of family code section 158.102, the

trial court possessed jurisdiction to sign an enforcement order and to order

wage withholding. See, e.g., Tex. Fam. Code Ann. §§ 158.102, 157.269;

Tex. Gov’t Code Ann. § 311.011 (Vernon 2005). And Rex does not argue that

his child support obligation was extinguished for reasons other than family code

section 157.005(b)’s jurisdictional limitation, so we need not address any other

possible arguments.    See In re A.D., 73 S.W .3d at 249; see also Burnett-

Dunham v. Spurgin, 245 S.W.3d 14, 15, 18 (Tex. App.—Dallas 2007, pet.

filed) (applying affirmative defense of residual statute of limitations when

pleaded by respondent in child support arrearage suit). Thus, the trial court also

had jurisdiction to award interest, attorney’s fees, and costs.

                  IV. INTEREST, C OSTS, AND A TTORNEY’S F EES

      Patricia contends that the trial court abused its discretion by concluding

that the arrearage of $19,614.46 was inclusive of interest and costs and by

ordering each party to bear his or her own attorney’s fees. Generally, child

support issues are reviewed under the abuse of discretion standard.           See

Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.—El Paso 1998, no pet.).

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In determining whether an abuse of discretion has occurred, the question is not

whether the reviewing court would make the same decision given the same

facts and circumstances as presented in the trial court but whether the trial

court acted without reference to any guiding rules and principles. Duran v.

Garcia, 224 S.W .3d 309, 313 (Tex. App.—El Paso 2005, no pet.). The trial

court does not abuse its discretion if it bases its decision to award arrears on

conflicting evidence and some evidence supports its decision. See George v.

Jeppeson, 238 S.W.3d 463, 474 (Tex. App.— Houston [1st Dist.] 2007, no

pet.).

         Here, the amount of the arrearage purportedly owed by Rex was hotly

contested. Rex and his wife Janice both claimed that they had paid Patricia

directly, at her request.   This testimony is consistent with evidence in the

record that in 1988, the trial court calculated Rex’s arrearage at an amount well

below the arrearage that would be due if the only payments he had made were

those reflected in the administrative payment records. Additionally, Patricia

offered no cogent explanation for her decision to wait until 2005, until the

children were thirty-five and thirty-eight, to request payment of child support

she claims she did not receive from 1989 through 1992. She said that she had

waited because “[i]t was the right thing to do.”        Applying the abuse of

discretion standard to the trial court’s decision that the unpaid arrearage owed

                                       8
by Rex was $19,614.46 inclusive of interest and costs, we hold that because

some evidence supports the trial court’s implied finding that Rex in fact made

some direct payments to Patricia, the trial court did not abuse its discretion by

determining that the total arrearage owed by Rex was $19,614.46 inclusive of

interest and costs. See id. (deferring to trial court’s implied factual resolution

and the resulting determination that wife failed to meet her burden of proof

when she moved the trial court to confirm the arrearage that she claimed was

due and owing by her ex-husband under their 1997 decree); see also Longhurst

v. Clark, No. 01-07-00226-CV, 2008 WL 3876175, at *9 (Tex. App.—Houston

[1st Dist.] Aug. 21, 2008, no pet.) (mem. op.) (holding that there was some

evidence to support trial court’s finding that ex-husband owed $298,835 on

arrearages from 1992 when trial court took judicial notice of its 1992 Texas

order). We overrule Patricia’s first issue.

      Patricia next claims that the trial court abused its discretion by failing to

award her attorney’s fees. Patricia’s attorney testified that he was hired by

Child Support Network and that they were responsible for his attorney’s fees.

He also testified that the Child Support Network takes these types of cases on

a contingency fee and that his fee “will come out of her child support,

ultimately.” Patricia’s attorney testified that he had spent 71.4 hours on the




                                        9
case, billed $200 per hour, and claims he was entitled to $14,280 in attorney’s

fees.

        As noted above, by the time Patricia filed her countermotion to enforce,

the trial court had lost jurisdiction to enforce any past due child support

payments owed by Rex via a money judgment. See Act of May 29, 2005,

79th Leg., R.S., ch. 916, § 21, 2005 Tex. Gen. Laws 3148, 3155 (amended

2007) (current version at Tex. Fam. Code Ann. § 157.005(b)). The trial court

had not, however, lost jurisdiction to enforce past due child support via a wage

withholding order.    See Tex. Fam. Code Ann. § 158.102; In re A.D., 73

S.W.3d at 249. When entering such an order, the trial court is not required to

also order wage withholding for attorney’s fees. See Tex. Fam. Code Ann.

§ 158.0051 (Vernon 2002) (providing that the trial court may include an award

of attorney’s fees in a wage withholding order). Consequently, even if the trial

court erred or abused its discretion by ordering that each party bear his or her

own attorney’s fees, no harm occurred here because the trial court possessed

discretion in any event to not include attorney’s fees in the ordered wage

withholding (the only enforcement procedure sought by Patricia for which the

trial court possessed jurisdiction to grant). We overrule Patricia’s second issue.




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                                  V. C ONCLUSION

         Having overruled both of Patricia’s issues, we affirm the trial court’s

order.




                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

DELIVERED: November 13, 2008




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