






In the Interest of Lee Children
















IN THE
TENTH COURT OF APPEALS
 

No. 10-99-051-CV

IN THE INTEREST OF LEE CHILDREN

 

From the 13th District Court
Navarro County, Texas
Trial Court # 445-80
                                                                                                                
                                                                                                         
O P I N I O N
                                                                                                                

      After Danny Lee had paid the entire face amount of a judgment for child support, the Attorney
General sought to recover interest.  The AG argues that by statute, all judgments for child support
accrue interest, whether or not the judgment specifically provided for post-judgment interest at the
time it was signed.  The trial court did not grant the AG’s request for post-judgment interest.  We
affirm the judgment of the trial court.
BACKGROUND FACTS AND PROCEDURAL HISTORY
      In 1980, Lee was divorced and ordered to pay child support.  By 1987, he was $16,900
behind in his payments.  This balance was reduced to judgment.  The judgment did not require
pre-judgment or post-judgment interest.  The judgment ordered withholding by Lee’s employer. 
No appeal was taken from this 1987 judgment.
       According to the AG’s record, the last regular child support payment was due May 15, 1994. 
However, because the total judgment of $16,900 had not been repaid, the employer continued to
withhold wages pursuant to the 1987 judgment and withholding order.  In 1998, the AG, acting
in its capacity as the Title IV-D agency for the State of Texas, sought to increase the amount being
withheld from Lee’s wages.  Lee contested any further withholdings and argued that based on the
AG’s own pay history, he had actually paid more than he owed.
      The parties agree that the dispute relates to whether Lee is liable for interest on the judgment
for past due child support.  The parties have some disagreement about what evidence was
introduced and who has the burden of proof.  The AG relies on a summary of a payment history
of Lee.  Lee does not dispute that the history of his payments as reflected on the AG’s summary
is accurate.  
      In addition to the pay history, the summary also contains entries for the accrual of amounts
of interest.
  It is the accrual of interest, not the amount of the payments, that is in dispute.  The
AG’s office argues that Lee never offered his own computation of interest due.  As we understand
Lee’s argument, it is that the judgment did not require the payment of interest, thus post-judgment
interest cannot be collected and accordingly there was no need for him to present his own
computation for the accrual of interest. 
      According to the AG’s schedule, in addition to the $16,900 due pursuant to the 1987
judgment, $34,000 of child support payments became due and owing, for a total child support to
be paid of $50,900.  The AG’s schedule reflects that $51,308.84 had been paid by Lee.  Lee has
affirmatively waived any claim for a refund of an overpayment.
      If Lee is liable for and owes more than $408.84 in interest, the judgment and subsequently
accruing child support obligations have not been satisfied.
POST-JUDGMENT INTEREST
      Interest on judgments has been allowed by statute long before the 1987 judgment.  The rate
for judgments was revised by Art. 5069–1.05 (codified at Tex. Fin. Code Ann. § 304), which
went into effect October 1, 1967, and amended Title 79, Art. 1.05 of the Revised Civil Statutes
of Texas, 1925.  Interest on child support obligations is now addressed in Texas Family Code
Subchapter F § 157.261 et seq.  The AG takes the position that because the statute specifies the
interest rate and also provides that all judgments shall bear the statutory rate of post-judgment
interest, the judgment need not specify that post-judgment interest is to be paid by the judgment
debtor.  We disagree.
      In a case on remarkably similar facts, the Fort Worth Court of Appeals has determined that
the trial court has no jurisdiction to order the payment of pre- or post-judgment interest, years
after the entry of a judgment that did not order the payment of interest.  Moore v. Brown, 993
S.W.2d 871 (Tex. App.—Fort Worth 1999, pet. denied).  The court in Moore held as follows:
Moore contends that the trial court erred by granting summary judgment because she
was entitled to pre- and post-judgment interest on the December 6, 1991 installment
judgment.  The law in effect on the date that the trial court ordered Brown to pay
$15,441 in child support arrearages allowed for prejudgment and post-judgment interest
on child support arrearage judgments.  See Act of June 16, 1991, 72nd Leg., R.S., ch.
467, 1991 Tex. Gen. Laws 1693 (amended 1993 & 1995) (current version at  Tex. Fam.
Code Ann. § 157.264, 157.265 (Vernon 1996)); Act of May 17, 1983, 68th Leg., R.S.,
ch. 107, § 1, 1983 Tex. Gen. Laws 518, 518-19, repealed by Act of June 19, 1997, 75th
Leg., R.S., ch. 1008, § 6, 1997 Tex. Gen. Laws 3601, 3602; State v. Johnican, 830
S.W.2d 215, 217 (Tex. App.—Houston [14th Dist.] 1992, no writ).  However, the trial
court did not order Brown to pay any interest, pre-or post-judgment.  Even if Moore was
entitled to pre- and post-judgment interest on the unpaid child support, as of December
6, 1991, the trial court had no jurisdiction to modify its December 6, 1991 installment
judgment seven years later.  The trial court lost its plenary power sometime in early
1992, and the court's attempt to modify the December 6, 1991 installment judgment after
plenary power expired would be void.  See Lundy [v. Lundy], 973 S.W.2d [687,] at 688
[(Tex. App.—Tyler 1998, pet. denied)]; Ex parte Balazik, 631 S.W.2d [198,] at 200
[(Tex. App.—Fort Worth 1982, no writ)].

Id. at 874.
      Neither the AG nor Peggy Ann Lee took any action to modify or appeal the 1987 judgment. 
The AG cites Williams v. Patton, 821 S.W.2d 141, 143 (Tex. 1991) for the proposition that the
trial court could not “forgive, reduce or modify child support arrears.”
  With this statement of
the law we have no disagreement.  However, the trial court cannot modify a judgment that has
long since become final to add an obligation that was not originally included therein.  Moore, 993
S.W.2d at 874.
      The AG also cites a line of cases, including Golden v. Murphy, 611 S.W.2d 914, 916 (Tex.
Civ. App.—Houston [14th Dist.] 1981, no writ), for the following proposition:  “The interest
which an award bears is a creature of statute and although it may be specified by the terms of the
judgment, it is authorized and recoverable under the statute even if the judgment makes no
reference to its recovery.”  Id.
  However, Golden and the other cases relied upon by the AG for
this proposition, are cases in which the appellate court was modifying the judgment on direct
appeal because the judgment made no mention of post-judgment interest.  These were not cases
such as this one, where the judgment creditor was seeking to modify a judgment years later by
trying to collect interest that was not awarded as part of the judgment.
CONCLUSION
      We agree with the Fort Worth Court of Appeals that if the judgment did not award payment
of post-judgment interest at the time that it was signed, the judgment creditor may not enforce
collection of post-judgment interest long after the judgment became final.
      The 1987 judgment did not require the payment of post-judgment interest.  Further, the
undisputed evidence established that Lee has paid more in child support than the amount of the
1987 judgment and the subsequently accruing child support obligation.  Accordingly, we hold that
the trial court did not err in granting judgment that the Attorney General and Peggy Ann Lee take
nothing from Danny Lee and permanently enjoining the Attorney General from seeking an
administrative writ of withholding.


                                                                         TOM GRAY
                                                                         Justice

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Affirmed
Opinion delivered and filed April 18, 2001
Publish
