                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                 §
                                                                 No. 08-05-00302-CV
                                                 §
                                                                   Appeal from the
 IN THE INTEREST OF J.I.M.,                      §
 A CHILD                                                     383rd Judicial District Court
                                                 §
                                                              of El Paso County, Texas
                                                 §
                                                                  (TC# 99-CM5892)
                                                 §


                                          OPINION

       This appeal arises from a trial court’s order granting petition to modify the parent-child

relationship in favor or J.I.M.’s father James A. Martinez. The order simultaneously denied a

motion for enforcement of child support filed by J.I.M.’s mother, Ana Carroll. Appellant, Ana

Carroll, raised two issues for our review. In Issue One, she contends the trial court abused its

discretion by retroactively reducing Mr. Martinez’s past-due child support obligations, which she

asserts had been reduced to a final judgment pursuant to Section 157.261(a) of the Texas Family

Code. In Issue two, Ms. Carroll argues the trial court also abused its discretion by refusing to

enter a judgment in response to her motion for enforcement for unpaid child support. We reverse

and remand.

       Ana Carroll and James Martinez were divorced on December 16, 1999. There is one

child from the marriage, J.I.M., who was born in June 1997. In the final divorce decree,

Ms. Carroll and Mr. Martinez were appointed joint managing conservators, with Ms. Carroll

granted the right to establish the primary residence of the child. Mr. Martinez was initially
ordered to pay child support in the amount of $800 per month beginning January 1, 2000.

Pursuant to a formula in the final divorce decree, upon any change in Mr. Martinez’s salary after

October 1, 2000, the monthly child support amount would automatically adjust by a percentage

equal to the percentage change in Mr. Martinez’s salary. Mr. Martinez was also ordered to pay

Ms. Carroll, twenty percent of the net amount of bonuses received by him from his employer as

additional child support, beginning December 1, 2000. Finally, Mr. Martinez was required

generally to notify Ms. Carroll of changes in his salary, including bonuses.

       In the three years following the divorce decree, Mr. Martinez’s salary and employment

changed several times. On October 8, 2002, Mr. Martinez filed a motion to modify his child

support obligation pursuant to Section 156.401 of the Texas Family Code. The petition

requested a reduction of support due to a material and substantial change in circumstances, and

because the previously ordered support payments were not in compliance with the support

guidelines provided by Chapter 154 of the Code. See TEX .FAM .CODE ANN . § 156.401(a)(Vernon

2002).1 At the time the motion was filed, Mr. Martinez’s child support obligation under the

divorce decree was in excess of $2,000 per month.

       Ms. Carroll was served with the petition on October 23, 2002 and filed her answer on

October 28, 2002. On November 19, 2003, Ms. Carroll filed a motion for enforcement of child

support under Chapter 157 of the Family Code. In her motion, Ms. Carroll requested that the

trial court find Mr. Martinez in contempt for failing to pay the full amount of child support based

on salary increases and bonuses received between December 2002 and November 2003.


       1
         The original petition in this case was filed in 2002, prior to the effective date of the most
recent amendments to the Texas Family Code. Accordingly, we will review and apply the
relevant provisions of the code as they existed in 2002.

                                                 -2-
Ms. Carroll moved for the entry of a money judgment for the total amount of the arrearages,

including interest, attorney’s fees, and costs.

       On December 10, 2003, the trial court heard evidence and argument regarding both

motions. Mr. Martinez testified that at the time he filed his motion, he was paying $1,200 per

month. He argued that the $1,200 payments constituted the statutory maximum provided by the

support guidelines, and because there was no evidence that the child’s needs exceeded that

amount, he was entitled to a reduction. However, he admitted that his payments were less than

the amount he was obligated to pay under the divorce decree which was still in effect at the time

of the hearing. Without disagreeing that he had failed to comply with the divorce decree,

Mr. Martinez stated that his motion to modify included a request for a retroactive reduction of his

obligation back to the date of his motion to modify. Ms. Carroll argued that despite

Mr. Martinez’s requested reduction, he remained obligated to make support payments in

accordance with the decree, and that because he had failed to pay in full, she was entitled to a

money judgment for the amount of the arrearage.

       The trial court entered a judgment granting Mr. Martinez’s motion to modify, and

denying Ms. Carroll’s motion for enforcement on June 14, 2005. Relying on TEX .FAM .CODE

ANN . § 156.401, the trial court determined that it could modify the order as of the date of service

of citation or appearance. Furthermore, the court held that because the modification resulted in a

reduction of Mr. Martinez’s support obligation during the pendency of his motion to modify, the

court denied Ms. Carroll’s request for enforcement of the terms of the divorce decree during the

same time period as moot. It also ordered each party to bear their own attorney’s fees and costs.

Ms. Carroll has appealed the trial court’s denial of her motion to enforce in two issues. In Issue


                                                  -3-
One, she argues that trial court’s decision to retroactively reduce a child support obligation,

which has not been paid, as part of a modification proceeding constitutes an abuse of discretion.

In Issue Two, Ms. Carroll contends that the trial court had no discretion to refuse to enter a

judgment on a proven arrearage in response to a motion for enforcement.

                                            ANALYSIS

       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.). 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 and principles. Duran v.

Garcia, 224 S.W.3d 309, 313 (Tex.App.--El Paso 2005, no pet.), citing Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279,

90 L.Ed.2d 721 (1986). As a result, a trial court abuses its discretion by misapplying the law.

See Concha v. Concha, 808 S.W.2d 230, 231 (Tex.App.--El Paso 1991, no writ). When statutory

construction is required to determine whether the trial court acted in accordance with the law, the

reviewing court conducts a de novo review. See NCED Mental Health, Inc. v. Kidd, 214 S.W.3d

28, 32 (Tex.App.--El Paso 2006, no pet.). A statute must be construed to give effect to all its

provisions, with the ultimate objective being to determine and give effect to the Legislature’s

intent. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003).

       In the situation before us, the trial court was presented with two, potentially conflicting

motions; one to modify and reduce a child support obligation, and one to enter judgment on an

arrearage. The trial court concluded that its power to decrease Mr. Martinez’s support obligation


                                                 -4-
under Sections 156.401 and 154.126 included the ability to erase Ms. Carroll’s claim for

arrearages, rendering her claim for enforcement moot.2 In doing so, the trial court failed to

recognize the distinction between its broad discretion to modify child support obligations, and its

lack of discretion to enter judgment on a proven arrearage.

       Mr. Martinez’s motion to modify was filed pursuant to Section 156.401 of the Texas

Family Code. In October of 2002, when the motion was filed, Section 156.401 paragraphs (a)

and (b) provided:

       (a)     Except as provided by Subsection (b), the court may modify an order that
               provides for the support of a child if:

               (1)     the circumstances of the child or a person affected by the order
                       have materially and substantially changed since the date of the
                       order’s rendition; or

               (2)     it has been three years since the order was rendered
                       or last modified and the monthly amount of the
                       child support award under the order differs by either
                       20 percent or $100 from the amount that would be
                       awarded in accordance with the child support
                       guidelines.

       (b)     a child support order may be modified only as to obligations accruing after
               the earlier of:

               (1)     the date of service of citation; or

               (2)     an appearance in the suit to modify.

TEX .FAM .CODE ANN . § 156.401(a) and (b)(Vernon 2002).



       2
         Although Ms. Carroll’s notice of appeal indicated her disapproval with the modification,
her appellate arguments are limited to whether the trial court’s denial of her motion for
enforcement based on a retroactive reduction of Mr. Martinez’s support obligation. Therefore,
we will limit our discussion to the court’s decision to deny the enforcement motion. We express
no opinion on the modification itself.

                                                 -5-
       While Mr. Martinez’s motion to modify was pending, Ms. Carroll filed a motion for

enforcement of the existing child support order, contending that Mr. Martinez was not paying the

required amount of child support. Ms. Carroll’s motion was filed pursuant to Sections 157.261,

157.262, and 157.263. The relevant paragraphs of these sections state:

       § 157.261. Unpaid Child Support as Judgment

       (a)    A child support payment not timely made constitutes a final judgment for
              the amount due and owing, including interest as provided by this chapter.

       (b)    For the purposes of this subchapter, interest begins to accrue on the date
              the judge signs the order for the judgment unless the order contains a
              statement that the order is rendered on another specific date.

TEX .FAM .CODE ANN . § 157.261 (Vernon 2002).

       § 157.262. Reduction of Arrearages; Abeyance of Enforcement

       (a)    Except as provided by this section, in a contempt proceeding or in
              rendering a money judgment, the court may not reduce or modify the
              amount of child support arrearages.

TEX .FAM .CODE ANN . § 157.262(a)(Vernon 2002).

       § 157.263. Confirmation of Arrearages

       (a)    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.

       (b)    a cumulative money judgment includes:

              (1)     unpaid child support not previously confirmed;

              (2)     the balance owed on previously confirmed arrearages or
                      lump sum or retroactive support judgments;

              (3)     interest on the arrearages; and

              (4)     a statement that it is a cumulative judgment.


                                               -6-
TEX .FAM .CODE ANN . § 157.263 (Vernon 2002).

       As a result of the interaction of these provisions, the trial court’s generally broad

discretion to modify child support obligations is limited by a mandatory duty to render judgment

on a proven arrearage.3 See Williams v. Patton, 821 S.W.2d 141, 145 (Tex. 1991); Marriage of

Vogel, 885 S.W.2d 648, 651 (Tex.App.--Amarillo 1994, writ denied).

       On one hand, the trial court has broad discretion to modify a child support obligations.

See TEX .FAM .CODE ANN . § 156.401; Wright v. Wright, 867 S.W.2d 807, 812 (Tex.App.--El Paso

1993, writ denied). This discretion includes the ability to make a final modification retroactively

effective to the earlier of the date of service of citation, or an appearance in the suit to modify.

See TEX .FAM .CODE ANN . § 156.401(b). On the other hand, a trial court “shall confirm the

amount of arrearages and render one cumulative money judgment” when presented with an

enforcement motion and proof of an arrearage. TEX .FAM .CODE ANN . § 157.263(a); see also

TEX .FAM .CODE ANN . § 157.005(b)(Vernon 2002)(trial court retains jurisdiction to confirm

amount of arrearages and render judgment for past due child support). The code does not

provide an exception to the trial court’s duty to enter judgment on a proven arrearage during a



        3
          Mr. Martinez cites two published opinions which stand for the general proposition that a
trial court has the discretion to retroactively modify, increase, or decrease a support obligation by
making the modification effective on the earlier of the date of service of citation or appearance in
the modification proceeding. Willis v. Willis, 826 S.W.2d 700, 702 (Tex.App.--Houston [14th
Dist.] 1992, no writ); Edwards v. Edwards, 624 S.W.2d 635, 638 (Tex.App.--Houston [14th
Dist.] 1981, no writ). While we agree that generally the trial court’s discretion under Section
156.401 allows for a retroactive reduction of support, that is not the end of the inquiry. Unlike
both Willis and Edwards, here we are faced, not only with a motion to modify, but also with a
motion for enforcement. See Willis, 826 S.W.2d at 701 (stating that the agreed motion which
was the subject of the underlying suit was a motion to modify, not a motion for enforcement);
Edwards, 624 S.W.2d at 639 (holding that the trial court exceeded its jurisdiction in modification
proceeding by forgiving payments accrued prior to the motion to modify).

                                                  -7-
modification proceeding. See TEX .FAM .CODE ANN . § 157.262 and § 157.263; see also In re

Gonzalez, 981 S.W.2d 313, 315 (Tex.App.--San Antonio 1998, pet. denied)(use of “shall” in

Section 157.263 indicates legislative intent to place affirmative duty on trial court).

       An order setting or modifying child support imposes an obligation to make periodic

payments in support of the child. See TEX .FAM .CODE ANN . § 154.001 (Vernon 2002). Periodic

payments which accrue between the earlier of service of citation or an appearance, and entry of a

modification order can be modified under Section 156.401. TEX .FAM .CODE ANN . § 156.401.

However, the trial court’s discretion to retroactively modify the amount due during that period

does not affect the obligor’s ongoing duty to pay in accordance with the previous order until the

date the modification order is entered.4 Whether a modification motion is pending, or not, once a

support payment has come due, any non-payment constitutes an arrearage upon which the trial

court must enter a judgment pursuant to an enforcement motion. See TEX .FAM .CODE ANN .

§ 157.261; see also TEX .FAM .CODE ANN . § 157.262 (pendency of a motion to modify not

included in list of exceptions).

       By reducing a proven arrearage as part of its modification order, the trial court effectively

added a new exception to Section 157.262. See TEX .FAM .CODE ANN . § 157.262(b)(pendency of


       4
          In a case where the obligor has continued to make full payments in accordance with the
existing support order, the trial court retains the discretion to make a modification order
retroactive to the date the suit was filed, or the date of service. See TEX .FAM .CODE
ANN .§ 156.401(b); In the Interest of J.G.Z., 963 S.W.2d 144, 146 (Tex.App.--Texarkana 1998,
no pet.). Should the modification result in a reduction of the child support obligation, the obligor
may be entitled to a credit to be applied to future support payments for “overpayment” during the
pendency of the motion. See Beck v. Walker, 154 S.W.3d 895, 903 (Tex.App.--Dallas 2005, no
pet.). In the alternative, the movant has the option to file a motion for temporary orders. See
TEX .FAM .CODE ANN . § 156.006 (Vernon 2002). If the trial court is persuaded to enter such an
order, the obligor may be able to avoid over or under-payment during the modification
proceeding.

                                                 -8-
modification proceeding not listed as an exception to provision that court may not reduce or

modify an arrearage). Moreover, the court’s decision rendered Section 157.263’s mandate to

render judgment on a proven arrearage null in this case despite Ms. Carroll’s motion. Finally,

given the strong public policy in favor of child support as a duty to the child, we cannot agree

that the Legislature intended Section 156.401 to provide an avenue for a parent to ignore an

existing support order in the hope that the trial court will ultimately reduce his or her obligation

and therefore erase an arrearage. See George v. Jeppeson, 238 S.W.3d 463, 472 (Tex.App.--

Houston [1st Dist.] 2007, no pet.), citing Williams, 821 S.W.2d at 145.

       The pendency of a motion to modify does not change the obligation under an existing

order. Instead, the Legislature has provided a number of tools and defenses for an obligor who is

unable to pay all or part of the ordered support to avoid an arrearage. See, e.g., TEX .FAM .CODE

ANN . § 157.008 (Vernon 2002)(proving affirmative defenses to a motion for enforcement of

child support); TEX .FAM .CODE ANN . § 156.006 (Vernon 2002)(providing that a court may render

a temporary order in a suit for modification). An obligor who chooses not to take advantage of

these provisions runs the risk of facing an arrearages judgment which the trial court has no

discretion to reduce or modify. See TEX .FAM .CODE ANN . § 157.261-157.263.

       Mr. Martinez has not disputed, either in the trial court, or during this appeal, that he failed

to fulfill his child support obligation during the pendency of his motion to modify. As such,

there is no factual dispute that Mr. Martinez was in arrears at the time the trial court entered its

modification order. In accordance with Sections 157.261 and 157.263, Ms. Carroll was entitled

to a money judgment for the total amount of the arrearages, and the trial court had no discretion

but to enter such an order. Therefore, the trial court abused its discretion by determining


                                                 -9-
Ms. Carroll’s motion for enforcement was moot. Accordingly, Issues One and Two are

sustained.

       Having sustained both of Appellant’s issues, we reverse the trial court’s judgment and

remand the case for further proceedings consistent with this opinion.5



August 21, 2008
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., Barajas, C.J. (Ret.), and Ables, Judge
Barajas, C.J. (Ret.)(Sitting by Assignment)
Ables, Judge (Sitting by Assignment)




       5
          In her prayer for relief, Ms. Carroll asks this Court to render judgment in her favor for
the “full child support arrearage in the amount of $7,776.82 plus interest.” Because the trial
court determined that the issue of arrearages was moot, we do not have the benefit of a fact
finding establishing the actual amount of arrearages owed. Without such a finding, we cannot
render a money judgment as Ms. Carroll requests. On remand, the trial court need only review
the existing record to determine the amount due in arrearages so that it may enter a judgment in
accordance with Section 157.261.

                                                -10-
