                                            OPINION
                                        No. 04-10-00187-CV

                           IN THE INTEREST OF R.G., a Minor Child

                     From the 225th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 1978-CI-04930
                               Honorable Larry Noll, Judge Presiding

Opinion by:      Catherine Stone, Chief Justice

Sitting:         Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: May 11, 2011

REVERSED AND REMANDED

           In the underlying cause, Sophie Gonzales sought and obtained both the foreclosure of

child support liens and a judicial writ of withholding. From the record, it appears that the liens

were not based upon an accumulation of missed child support payments.                 Rather, the

“arrearages” upon which Sophie staked her claim appear to be an accumulation of interest on late

child support payments made by her former husband, Frank Garcia, more than twenty-five years

ago. On appeal, Frank asserts numerous complaints; however, Frank’s primary contention is that

the trial court erred in concluding that section 158.309 of the Texas Family Code deprived the

trial court of jurisdiction to consider Frank’s evidence and defenses. Because we hold the trial
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court had jurisdiction to consider Frank’s evidence and defenses, we reverse the trial court’s

judgment and remand the cause to the trial court for further proceedings.

                                          BACKGROUND

       Sophie and Frank were divorced in 1978. They had one child, R.G. In the divorce

decree, Frank was required to pay child support in the amount of $40 per week through the child

support registry until R.G. turned 18 or became emancipated. R.G. turned 18 on October 5,

1985. At that time, the Bexar County Child Support Payment Record showed that Frank was

$630 in arrears; however, over the next two years, Frank continued to make additional payments

through the child support registry totaling $710.

       On April 1, 2009, Sophie served Frank with a Notice of Application for Judicial Writ of

Withholding, stating that Frank owed $33,759.98 in child support arrears, including interest, as

of March 13, 2009, and requesting that $1,489.07 be withheld by Frank’s employer each month.

Within a few days, Frank filed a motion to stay the issuance of the judicial writ of withholding,

stating that he was not behind in paying child support. Sophie did not file the Notice of

Application with the district clerk until April 23, 2009.

       On October 28, 2009, Sophie filed her “First Amended Answer . . ., Request for

Affirmative Relief, and Notice of Hearing.” In her pleading, Sophie asserted that she issued

Notices of Child Support Lien pursuant to section 157.312 of the Texas Family Code (“Code”)

on March 31, 2009, and that she issued a Notice of Application for Judicial Writ of Withholding

pursuant to section 158.301 of the Code the same day. Her pleading contains a section entitled

“Affirmative Defenses.” In this section of the pleading, Sophie specifically objected to “the

untimely attempt by [Frank] to contest the arrears” and further asserted “[t]he child support

arrears in the amount of $33,759.98 as of March 13, 2009, was established as a matter of law on



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April 11, 2009.” Subject to these “affirmative defenses,” Sophie alternatively requested that the

trial court make a determination of the amount of the child support arrears “pursuant to section

157.323 and/or section 158.301, et seq.” of the Code. Sophie also requested that she be granted

the right to foreclose on her child support liens and that she recover attorney’s fees.

       Frank responded to Sophie’s pleading with his own Defendant’s Original Answer; Plea in

Abatement; Plea to the Jurisdiction; Motion to Rule for Costs; Motion for Relief for Frivolous

Pleadings under CPRC 9.001 et. seq.; Motion for Sanctions under CPRC Chapter 10; Original

Counterclaim and Jury Demand. In his pleading, Frank noted that his bank had filed a separate

interpleader lawsuit based on the actions taken by Sophie, and the interpleader proceeding was

set for trial on December 2, 2009. Frank requested an abatement of the underlying proceeding

until the conclusion of the interpleader proceeding. Frank asserted that the procedures used by

Sophie provided him with legal options to oppose and dispute the alleged child support debt. He

also asserted affirmative defenses of collateral estoppel, estoppel, laches, statute of limitations,

and waiver. Additionally, Frank asserted claims against Sophie for conversion, unlawful debt

collection practices, violation of the Texas Unlawful Debt Collection Act, unlawful garnishment,

and defamation.

       A hearing was held on November 13, 2009. At the conclusion of the hearing, the trial

court signed an order finding that Frank was served with the notice of application of writ of

withholding on April 1, 2009, and that he failed to request a hearing on his motion to stay within

thirty days. Based on this finding, the trial court determined “as a matter of law” that the amount

of the child support arrearage was $33,759.98. The order also sustained Sophie’s objection to

Frank’s failure to request a hearing on his motion to stay within thirty days. The trial court’s

order further provided that Sophie was “granted and rendered a judgment and confirmation of



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arrears under §157.323 and § 158.309 of the Texas Family Code for child-support arrearages,

including accrued interest against [Frank] in the amount of $33,759.98,” plus post-judgment

interest. The order further stated that “all funds liened shall be paid to [Sophie] and shall be

credited against the Judgment set forth herein.” Finally, the order awarded a judgment for

attorney’s fees in the amount of $15,546.50 to be paid directly to Sophie’s attorneys, plus

additional conditional appellate attorney’s fees in the event of an appeal.

                        JURISDICTION TO CONSIDER FRANK’S DEFENSES

   A. Right to Present Defenses under Section 158.309

       Chapter 158 of the Texas Family Code governs the withholding of earnings for child

support, and subchapter D of chapter 158 governs judicial writs of withholding. TEX. FAM.

CODE ANN. §§ 158.001, et seq. (West 2008 & Supp. 2010). Section 158.301 permits an obligee

to file a notice of application for judicial writ of withholding if a delinquency occurs in child

support payments in an amount equal to or greater than the total support due for one month.

TEX. FAM. CODE ANN. § 158.301 (West 2008). Section 158.307 allows the obligor to stay the

issuance of a judicial writ of withholding by filing a motion to stay not later than the 10th day

after the obligor receives the notice of application. Id. at § 158.307(a). If a motion to stay is

filed, section 158.309(a) provides “the court shall set a hearing on the motion and the clerk of the

court shall [send notice to the parties] of the date, time, and place of the hearing.” Id. at

§ 158.309(a). Section 158.309(b) provides, “The court shall hold a hearing on the motion to stay

not later than the 30th day after the date the motion was filed.” Id. at § 158.309(b). Finally,

section 158.309(c) provides that after a hearing, the trial court shall either grant the motion to

stay or render an order for income withholding that includes a determination of the amount of

child support arrearages including interest. Id. at § 158.309(c). A judicial writ of withholding



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directs the obligor’s employer or a subsequent employer to withhold from the obligor’s

disposable income an amount that is consistent with the provisions in Chapter 158 regarding

orders of withholding. Id. at § 158.314; see also § 158.009 (establishing maximum income

amount that can be withheld).

       Within the context of the procedural requirements of Chapter 158 of the Code, the

question arises here of whether Frank’s failure to timely request a hearing on his motion to stay

barred him from presenting evidence. The trial court found that it lacked jurisdiction to consider

Frank’s defenses. Sophie primarily relied on two appellate decisions to convince the trial court

that it lacked jurisdiction to consider Frank’s defenses because he failed to timely request a

hearing. First, in Attorney General’s Office v. Mitchell, the court considered the effect of an

obligor’s failure to timely file his motion to stay. 819 S.W.2d 556, 558 (Tex. App.—Dallas

1991, no writ). The Dallas court held that the failure to timely seek judicial review barred the

obligor’s complaints from being heard. Id. at 559. The Dallas court analogized the issuance of

the writ of withholding to decisions by administrative agencies and held that the trial court did

not have jurisdiction to consider the obligor’s complaints because he failed to seek timely

review. Id. at 559-60. The second decision cited by Gonzales was an unpublished opinion from

this court following the holding in Mitchell and holding that an obligor failed to invoke the

jurisdiction of the trial court by untimely filing a motion to stay. Effner v. Moore, No. 04-01-

00294-CV, 2002 WL 269116, at *1 (Tex. App.—San Antonio Feb. 27, 2002, no pet.) (not

designated for publication); see also Cobb v. Gordy, No. 01-09-00764-CV, 2011 WL 494801, at

*4 (Tex. App.—Houston [1st Dist.] Feb. 20, 2011, no pet. h.) (mem. op.) (same).

       In Glass v. Williamson, 137 S.W.3d 114, 116-17 (Tex. App.—Houston [1st Dist.] 2004,

no pet.), the Houston court disagreed with the holding in Mitchell. In Glass, the appellate court



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considered the obligee’s argument that the trial court was without jurisdiction to consider the

obligor’s contest of the amount of arrearages because the obligor failed to timely file a motion to

stay. 137 S.W.3d at 116. The court first noted that in 2000, the Texas Supreme Court overruled

prior precedent characterizing a plaintiff’s failure to establish a statutory prerequisite as

jurisdictional. See id. at 117 (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000)).

The Houston court further noted that after Dubai, the focus shifted from whether the district

court had subject matter jurisdiction to whether the party requesting relief was entitled to the

relief sought. Id. The court held that the obligor’s failure to timely file a motion to stay did not

divest the trial court of jurisdiction. Id. Instead, the issue became whether the obligor was

entitled to the relief sought, i.e., entitled to assert his defenses to the arrearage. Id. The court

also criticized the Dallas court’s analogy to administrative adjudications. Id.

       All three of these decisions are distinguishable from the instant case because Frank

timely filed his motion to stay. As a result, Frank timely sought judicial review. Thus, the issue

in this case is further narrowed to whether section 158.309 imposes a duty on the trial court to

conduct the hearing or requires the obligor to request the hearing. Construing the meaning of

section 158.309 is a question of statutory construction, and issues involving statutory

construction are questions of law that are reviewed de novo. Marks v. St. Luke’s Episcopal

Hosp., 319 S.W.3d 658, 663 (Tex. 2010).

       As previously noted, section 158.309 provides that if a motion to stay is filed, the trial

court shall set a hearing and shall hold a hearing on the motion to stay not later than the 30th day

after the date the motion was filed. TEX. FAM. CODE ANN. § 158.309 (West 2008). In addition,

section 158.302, which governs the required content of a Notice of Application, requires the

Notice of Application to “describe the procedures for contesting the issuance and delivery of a



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writ of withholding” and to “state that if the obligor contests the withholding, the obligor will be

afforded an opportunity for a hearing by the court not later than the 30th day after the date of

receipt of the notice of contest.” Id. at § 158.302(4), (5).

       Although Frank and Sophie each cite case law interpreting language contained in other

statutes or rules similar to the language in section 158.309, we need look no further than the

Texas Family Code to determine the meaning of section 158.309. Chapter 157 of the Code

governs the enforcement of a child support order. Id. at § 157.001(a). Section 157.001(c) of the

Code states a trial court “may enforce a final order for child support as provided in this chapter

or Chapter 158.” Id. at § 157.001(a). With regard to the procedure to be followed in setting a

hearing on a motion for enforcement, section 157.061 provides:

       (a) On filing a motion for enforcement requesting contempt, the court shall set the
           date, time, and place of the hearing and order the respondent to personally
           appear and respond to the motion.

       (b) If the motion for enforcement does not request contempt, the court shall set
           the motion for hearing on the request of a party.

Id. at 157.061. Accordingly, section 157.061 reveals that the Texas Legislature has drawn a

distinction, at least in cases seeking to enforce child support obligations, between imposing the

obligation on the trial court to set a hearing and imposing the obligation on the party to request a

hearing. See id. The language in section 157.061(a) imposes a “statutorily required ministerial

duty” on the trial court to set a hearing. In re Taylor, 39 S.W.3d 406, 413 (Tex. App.—Waco

2001, orig. proceeding). Given that Chapter 157 and Chapter 158 both govern child support

enforcement, there is no reason for this court to conclude that the Texas Legislature did not

intend to impose the same obligation on the trial court under section 158.309 of the Code as it

imposed under section 157.061(a). This interpretation also is consistent with other provisions of

Chapter 158, including the requirement that the notice of application state the obligor will be

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afforded an opportunity for a hearing and the requirement that “both the obligor and the obligee”

must agree to waive the right to have the motion to stay heard within thirty days. TEX. FAM.

CODE ANN. §§ 158.302(5), 158.309(b) (West 2008). Because the trial court had the burden to set

the hearing on Frank’s motion to stay, the trial court erred in concluding that it did not have

jurisdiction to consider Frank’s defenses based on Frank’s failure to timely request the hearing. 1

    B. Right to Present Defenses under Section 157.323

         Even if the trial court had been correct with regard to Frank’s right to present defenses

under section 158.309, which we have held it was not, Sophie sought relief under both Chapter

158 and Chapter 157. Moreover, the trial court granted relief under both Chapters. The trial

court’s order confirms the amount of the arrears under both section 157.323 and section 158.309.

The trial court’s order further permitted Sophie to foreclose the child support liens she had filed

which also is governed by section 157.323. Under Chapter 157, Sophie had the obligation to

request a hearing on her action to foreclose, and no provision prohibited Frank from raising his

defenses. See TEX. FAM. CODE ANN. § 157.323 (West 2008) (noting obligor may dispute the

amount of arrearages stated in the lien and providing that procedures generally applicable to

motions for enforcement apply); TEX. FAM. CODE ANN. § 157.061 (West 2008) (setting forth

procedure for setting hearing). Therefore, because Frank was entitled to assert his defenses to

the amount of the arrearages under Chapter 157, the trial court erred in concluding it did not have

jurisdiction to consider the defenses.




1
  We recognize that placing the burden to set a hearing on the trial court rather than on the litigants may be
burdensome, especially in jurisdictions like Bexar County where a centralized presiding docket system is used.
Nonetheless, the language of the statute is clear, and this court is not at liberty to disregard the statutory language
chosen by the Legislature. See Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 860 (Tex. 2005)
(quoting Simmons v. Arnim, 110 Tex. 2309, 220 S.W. 66, 70 (Tex. 1920)) (courts must take statutes as they find
them).

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       During the hearing, Sophie’s attorney referred to res judicata as establishing the amount

of the arrearage. Presumably, her attorney believed that by obtaining an arrearage determination

under the relief requested under Chapter 158, the arrearage determination was res judicata with

regard to the relief requested under Chapter 157. In order for the principle of res judicata to

apply, however, there must have existed a prior final determination on the merits by a court of

competent jurisdiction. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). In this

case, there was no prior final determination. Instead, the relief under both Chapter 157 and

Chapter 158 was requested and granted in a single hearing.

   C. Preservation of Right to Present Evidence

       In her brief, Sophie asserts that Frank failed to preserve his complaint regarding the

exclusion of the evidence because he failed to offer the evidence. We disagree. The reporter’s

record of the hearing demonstrates that Frank’s attorney made numerous efforts to offer

evidence. Those efforts were, however, thwarted by the trial court’s determination that it lacked

jurisdiction to consider the evidence.

       Sophie also asserts Frank’s offer of proof was not made in the presence of the trial court;

therefore, the complaint is not preserved. Rule 103(a)(2), however, states that error may not be

predicated upon a ruling excluding evidence unless “the substance of the evidence was made

known to the court by offer, or was apparent from the context in which questions were asked.”

TEX. R. EVID. 103(a)(1) (emphasis added); see also Akin v. Santa Clara Land Co., 34 S.W.3d

334, 339 (Tex. App.—San Antonio 2000, pet. denied) (noting substance of testimony was

apparent from discussion at hearing and assuming error preserved). From the reporter’s record

of the hearing, it is clear that the trial court understood the substance of the evidence related to

Frank’s defenses against the alleged arrearage.       For example, Frank’s attorney repeatedly



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focused the trial court’s attention on a letter from the Attorney General’s office stating that Frank

had paid all child support owed. Although Sophie’s attorney raised hearsay objections to the

admissibility of the letter, it is apparent from the record that the trial court was aware that Frank

intended to call the assistant attorney general as a witness to elaborate on the factual information

he discussed in the letter regarding the child support payments. Frank’s attorney even informed

the trial court that a trial judge in a separate hearing had granted a protective order with regard to

documents Frank requested in subpoenaing the witness; however, the trial judge had ruled that

the witness would be permitted to testify. Moreover, Frank’s attorney informed the trial court

that part of his offer of proof was that Frank and his wife had visited the office of Sophie’s

attorney and had offered proof that they had paid the child support in full. From the context of

this statement, it was apparent that Frank and his wife intended to testify that the child support

had been paid in full. Accordingly, Frank properly preserved his complaint for our review.

                                                 SUFFICIENCY

        In his fourth point of error, Frank contends the evidence is legally insufficient to support

the amount of the arrears because interest did not accrue on the unpaid child support and the

Bexar County Child Support Payment Record established that he paid the principal amount of

the child support in full. Prejudgment interest is, however, recoverable on unpaid child support

as a matter of right. See In re M.C.R., 55 S.W.3d 104, 108 (Tex. App.—San Antonio 2001, no

pet.); Medrano v. Medrano, 810 S.W.2d 426, 428 (Tex. App.—San Antonio 1991, no writ).

Accordingly, Frank’s legal sufficiency complaint is based on a flawed premise and is overruled. 2


2
 Although we acknowledge the saying that a trial court acts as “a mere scrivener” and “mechanically tallies the
amount of arrearages,” see In re M.C.R., 55 S.W.3d at 109, calculating the amount of arrears in this case from the
three documents introduced into evidence would be a mathematical challenge a trial judge should not be required to
undertake. Given the necessary mathematical calculations, a trial judge in these circumstances would not abuse its
discretion in requiring additional detailed evidence and mathematical assistance from the parties apart from the
divorce decree and child support payment registry. Certainly, this court would not be receptive to being called upon
to decipher the math without any additional record support. We further acknowledge, however, that the trial court’s

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                                                 CONCLUSION

        We have determined that the trial court erroneously concluded it was without jurisdiction

to hear Frank’s evidence offered in defense of the claims asserted against him. Accordingly, the

trial court’s order is reversed, and the cause is remanded to the trial court for further proceedings.

                                                          Catherine Stone, Chief Justice




erroneous application of section 158.309 likely skewed the manner in which the trial court determined the arrearage.
Under its procedural approach to the case, the trial court may have believed that the arrearage amount listed in
Sophie’s self-serving Notice of Application for Judicial Writ of Withholding established the arrears “as a matter of
law” despite the absence of any other evidence supporting the arrearage calculation. See Cobb, 2011 WL 494801, at
*4.

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