
NO. 07-00-0241-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

DECEMBER 5, 2002

______________________________


IN THE INTEREST OF S. L. M. 
AND J. A. M., CHILDREN
_________________________________

FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

NO. 39,974-C; HONORABLE PATRICK PIRTLE, JUDGE

_______________________________


Before REAVIS and JOHNSON, JJ., and BOYD, S.J. (1) 
OPINION ON MOTION FOR REHEARING
	Our opinion dated August 15, 2002, is withdrawn and the following opinion is issued
in its place. 
 Appellant Sharon Lee (Moore) Cooper appeals from a judgment on her Motion for
Enforcement and a Motion to Modify filed by appellee Sammy Wayne Moore.  Sharon
challenges the trial court's (1) commencement date for the calculation of accrued child
support, (2) failure to enter judgment until a later hearing, (3) jurisdiction to enter
conservatorship and possession orders, (4) retroactive modification of child support
obligations, (5) allowing offsets against accrued child support, (6) failure to issue a wage
withholding order, (7) failure to award attorney's fees and costs to appellant and (8) failure
to award interest on child support arrearage.  We affirm the judgment and remand for
issuance of a wage withholding order.
FACTUAL BACKGROUND
	Sharon and Sammy are the parents of two children: S. L. M., born May 16, 1981;
and J. A. M., born April 18, 1984.  Sharon, Sammy and the children were the subject of
proceedings involving the parent-child relationship in cause number 39,974-C in the 251st
District Court of Randall County.  On February 26, 1997, (2) the trial judge signed an Order
on Motion to Modify in Suit Affecting the Parent-Child Relationship which had been agreed
to and approved by Sharon and Sammy.  The order continued Sharon and Sammy as Joint
Managing Conservators with Sharon to have possession of the children at all times not
specifically awarded to Sammy, or as mutually agreed between Sharon and Sammy.  The
order also (1) directed Sammy to pay child support to Sharon in the amount of $782.80 per
month in payments of $381.40 on the first and fifteenth of each month, with the first
payment due on January 15, 1997, and (2) provided that the child support payments would
be in the amount of $610.24 per month in the event any of certain specified contingencies
occurred which would result in only one child being eligible for support payments.  Sammy
was also ordered to pay 50% of all uninsured health care expenses incurred by or on
behalf of the children.  
	In April, 1998, S.L.M. moved from Sharon's residence to Sammy's residence. 
Sharon acquiesced in the move.  After S.L.M.'s move, Sammy provided all of her support
and began paying 100% of her uninsured medical bills.  Following payment of his child
support due on May 1, 1998, Sammy discontinued paying any child support to Sharon. 
	On December 2, 1998, Sharon filed a Motion for Enforcement of Child Support. 
Sammy's response, filed on December 17, 1998, included a Motion to Modify the 1997
order.   He also pled for an offset or credit for money he expended in support of S.L.M. and
for medical expenses he paid for her benefit while she was residing in his home.  
	On December 17, 1998, the trial court heard evidence on Sharon's Motion to
Enforce.  The trial judge declined to hold Sammy in contempt.  The judge also deferred
determining if any child support arrearage existed, and if so, the amount of the arrearage,
until Sammy's Motion to Modify could be heard.  On May 11, 1999, a hearing was held on
Sammy's Motion to Modify.  The court granted Sammy's motion and took the issues of
child support arrearage and future child support under advisement. (3)  An additional hearing
was held on December 21, 1999, at which the court took further evidence on both pending
motions.
	On February 9, 2000, the judge signed orders as to both Sharon's Motion for
Enforcement of Child Support and Sammy's Motion to Modify.  The order on Sammy's
motion modified his child support obligation as of December 17, 1998, to reflect his support
obligation for J.A.M., who still lived with Sharon, and ordered imposed on Sharon the
obligation to pay child support to Sammy for S.L.M., also effective as of December 17,
1998.  In regard to possession of S.L.M. the order (1) provided that it was effective on the
date that it was entered, (2) provided that Sammy had the sole right to establish the
primary residence of S.L.M., and (3) modified the periods of possession so that Sammy
had the right to possession of S.L.M. at all times not specifically awarded to Sharon. 
	The order on Sharon's motion included findings based on proceedings and
evidence presented up to and including the filing of an affidavit by Sammy on January 14,
2000, as to S.L.M.'s medical expenses.  Among other provisions, the order (1) stated that
Sammy was entitled to offset for actual support provided for S.L.M. during periods of
possession in excess of court-ordered periods of possession; (2) stated that Sharon failed
to pay one-half of S.L.M.'s uninsured medical expenses as specified by the 1997 order and
that Sammy was entitled to offset $6,668.11 for such expenses; and (3) provided that
Sharon was obligated to Sammy in the amount of $6,909 as the result of her obligation to
pay child support to Sammy beginning in April, 1998, and that Sammy was entitled to offset
for that amount.  The order directed that Sammy's accrued and unpaid child support of
$12,556.80, be subject to offset of $13,577.11.  No accrued child support, reimbursement
or attorney fees were awarded to either Sharon or Sammy, and all relief requested and not
granted was denied.   
	The court filed Findings of Fact and Conclusions of Law as to each of the motions. 
The findings of fact as to Sharon's motion to enforce included findings that: (1) Sammy was
entitled to an offset for actual support provided during periods of possession in excess of
court-ordered possession; (2) the amount spent by Sammy in support of S.L.M. from April,
1998, to May 11, 1999, was $13,737.64; (3) Sammy was entitled to offset for his
entitlement to child support from Sharon from December 17, 1998 (the effective date of
modification) through December 21, 1999 (the second hearing date), and his equitable
right to child support from Sharon from April, 1998, through December 17, 1998; (4) the
amount of offset for Sammy's entitlement to child support was $6,909; (5) Sammy was
entitled to offset in the amount of $6,668.11 for Sharon's unpaid one-half of S.L.M.'s
uninsured medical bills.  The conclusions of law as to Sharon's motion to enforce included
conclusions that: (1) Sammy was entitled to an offset for actual support provided during
periods of possession in excess of court-ordered possession; (2) Sammy was entitled to
offset for uninsured medical expenses he paid and to which Sharon did not contribute; and
(3) Sammy was entitled to offset for Sharon's obligation to him for child support.    
	Sharon appeals from both orders.  By 12 issues she challenges the trial court's
actions in (1) modifying and reducing Sammy's child support obligations effective as of
December 17, 1998, (the date his Motion to Modify was filed) and imposing on Sharon the
obligation to pay child support for S.L.M. effective December 17, 1998, because no
pleadings existed to support such orders; (2) miscalculating Sammy's child support
arrearage by using an erroneous beginning date for calculating the arrearage; (3) failing
to enter judgment on her Motion for Enforcement based on the evidence presented at the
hearing of December 17, 1998, instead of delaying entry of judgment until after two more
hearings were held and additional evidence offered as to Sammy's offsets and credits
against child support arrearage; (4) entering an order as to possession and
conservatorship of S.L.M. on February 9, 2000, because she turned 18 on May 16, 1999;
(5) modifying Sammy's child support obligation retroactively, in that there are no pleadings
to support such modification; (6) ordering Sharon to pay retroactive child support, in that
there are no pleadings to support such modification; (7) allowing an offset to Sammy's
child support arrearage for an "equitable right to child support" from Sharon as of April,
1998, when S.L.M. went to reside with Sammy with Sharon's permission; (8) allowing an
offset to Sammy in excess of the amount of his periodic child support payment arrearage;
(9) allowing an offset to Sammy's child support arrearage for one-half of the uninsured
medical expenses he paid for S.L.M.; (10) failing to enter a wage withholding order as to
Sammy; and (11), (12) failing to award Sharon attorney's fees, costs of suit, and interest
on the child support arrearage.  
ISSUES 1 AND 2: SAMMY'S ACCRUED CHILD SUPPORT
 Sharon's first two issues challenge the legal sufficiency of the evidence to support
the trial court's finding regarding the date of the commencement of Sammy's support
obligation pursuant to the February 26, 1997 order and the trial court's calculations based
on that date. Sharon asserts that the court erroneously calculated support from March 1,
1997, because the February 26, 1997 order required the altered support amount to be
started as of January 15, 1997.  She also claims that the amount of support due through
the hearing date of December 17, 1998, is conclusively established by the evidence to be
$17,952.80 instead of $16,781.60 as the trial court found.				
 Findings of fact in a case tried to the bench have the same force and dignity as a
jury's verdict upon questions.  See Anderson v. City of Seven Points, 806 S.W.2d 791, 794
(Tex. 1991).  A trial court's findings of fact are reviewable for legal and factual sufficiency
by the same standards applied in reviewing the sufficiency of the evidence supporting a
jury's finding.  Id.  
	The record of the December 21, 1999 hearing reflects that the trial court took
judicial notice of the February 26, 1997 order, as well as all other orders in the case.  In
doing so, the trial court noted that the order would "speak for itself" when ruling on an
objection as to the child support parts of the order.  We agree that the order speaks for
itself.   
	The order directs Sammy to begin paying child support of $381.40 on the 1st and
15th of each month, beginning on January 15, 1997.  The trial court erroneously based its
calculations on the payments beginning March 1, 1997.  The trial court thus calculated
Sammy's total support due as of December 17, 1998, based on 44 payments instead of
47 payments.  The amount of support due from Sammy was $17,925.80.  Moreover, our
review of the record does not support Sammy's assertion that Sharon effectively "invited"
the trial court's erroneous use of the March 1, 1997 date to calculate Sammy's support
obligations.  Sharon did not urge the trial court to use the date of March 1, 1997, as the
first date Sammy was required to pay the modified child support amount.  See Northeast
Tex. Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487-88 (1942). Sharon's
motion to enforce the child support obligation of Sammy was based on Sammy's failure to
make any support payments after his payment of May 6, 1998.  She alleged that specific
payments were not made, beginning with the payment due on May 15, 1998.  Neither (1)
the amount paid by Sammy, (2) the fact that he discontinued payments after May 6, 1998,
(3) the amount Sammy was to pay twice per month and the date payments were to begin
(January 15, 1997) pursuant to the order of February 26, 1997, were in dispute.  Omission
of the three payments by the trial court caused an error in the trial court's calculation of
Sammy's accrued support obligation by the amount of $1,144.20.  However, for reasons
set out in our discussion of Sharon's issues 11 and 12, we conclude that the error did not
probably cause the rendition of an improper judgment, and we overrule issues one and
two.    
ISSUE 3: FAILURE OF TRIAL COURT TO ENTER
JUDGMENT FOLLOWING FIRST HEARING ON MOTION TO ENFORCE
	Sharon's third issue asserts that the trial court erred in waiting to enter judgment on
her Motion for Enforcement until after evidence was presented during hearings held
subsequent to the hearing of December 17, 1998.  She claims that her case for child
support arrearage, attorney's fees and costs was fully proved on December 17th, and the
trial court was required to enter judgment as of that date.  She requests rendition of
judgment in her favor based on evidence as of December 17, 1998, because Tex. Fam.
Code Ann. § 157.061(c) (Vernon 1966) (4) provides that the court shall give preference to
a motion for enforcement of child support in setting a hearing date and may not delay the
hearing because suit for modification of the child support order has been or may be filed. 
 The setting and hearing of or continuing of pending motions are matters committed
to the trial court's discretion.  See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865
(Tex. 1988).  The exercise of such discretion will not be disturbed on appeal unless the
record discloses a clear abuse of discretion.  See id.;  Villegas v. Carter, 711 S.W.2d 624,
626 (Tex.1986).  Furthermore, in a bench trial it is within the discretion of the trial court to
permit evidence to be offered at any time when it clearly appears to be necessary to the
administration of justice.  See Tex. R. Civ. P. 270; (5) In re J.A.H., 996 S.W.2d 933, 935
(Tex.App.--Waco 1999, no pet.).  Among factors the trial court may consider in exercising
its discretion to allow additional evidence in a matter are whether (1) due diligence was
exercised by the parties in obtaining the evidence, (2) the additional evidence is decisive,
(3) allowing additional evidence will cause undue delay and (4) allowing additional
evidence will cause injustice.  See id.  The trial court does not abuse its discretion merely
because it decides a matter differently than an appellate court might decide the matter. 
See id.     
	At the conclusion of the hearing of December 17, 1998, the trial court denied
Sharon's motion to hold Sammy in contempt.  The court also stated, in response to
Sharon's objection to the court's failure to enter judgment for an arrearage, that it declined
to rule on the arrearage owed by Sammy, if any, because of insufficient facts and some
question as to how the law would apply to the factual and procedural record presented. 
Some of the facts sought by the court were going to be involved in determination of
Sammy's Motion to Modify.  The trial court set a further hearing in the matter for February
23, 1999. 
	S.L.M. was 16 years old when she went to live with Sammy in April of 1998, and
when she filed a verified choice of Sammy to be her managing conservator in May, 1998. 
Sharon did not assert that S.L.M. stayed with Sammy without Sharon's permission.  Sharon
agreed that after S.L.M. moved to Sammy's home in April, Sharon did not pay any support
for S.L.M., nor any of her medical bills incurred after April.  Sammy testified that he had
paid part of S.L.M.'s medical incurred after April, but that almost $10,000 remained
outstanding.  Sammy's answer pled that Sharon voluntarily relinquished the actual
possession and control of S.L.M. and that Sammy was entitled to an offset for actual
support he provided to S.L.M. during periods she stayed with him in excess of court-ordered possession.   
	We cannot say that the trial court clearly had no basis to allow further evidence on
the issue of whether Sammy owed arrearage of child support, and if so, how much.  The
record of the December 17th hearing contains some evidence to support a conclusion by
the trial court that additional evidence would be persuasive, if not decisive, on the amount
of offset or credit to which Sammy would be entitled, and that delaying a ruling on the
arrearages until after presentation of additional evidence would not cause an injustice.  At
the conclusion of the hearing the trial court scheduled another hearing date two months
in the future for taking additional evidence.   
	An abuse of discretion does not exist if some evidence in the record shows the trial
court followed guiding rules and principles.   See In re Epic Holdings, Inc., 985 S.W.2d 41,
57 (Tex. 1998).  Because some evidence supports the trial court's decision to take
additional evidence before ruling on matters in Sharon's motion other than the contempt
assertion, the trial court did not abuse its discretion in failing to enter a judgment based
on the record and evidence presented at the December 17, 1998 hearing.  Sharon's third
issue is overruled.       	ISSUE 4: ENTRY OF CONSERVATORSHIP ORDERS 
AFTER CHILD'S 18TH BIRTHDAY 
 In issue four, Sharon urges that any questions of conservatorship and possession
as to S.L.M. became moot after S.L.M. turned 18 years old on May 16, 1999, and that the
February 9, 2000 order establishing conservatorship and possession as to S.L.M. is invalid
because S.L.M. was over 18 at the time the order was entered.  Sharon urges that the trial
court lacked jurisdiction to enter conservatorship and possession orders as to an adult. 
She relies on the language of Family Code § 155.001 which provides that a court acquires
continuing jurisdiction of a "child," in conjunction with Family Code § 101.003(a) and (c),
which define "child" as a person under the age of 18 years and "adult" as a person who is
not a child.  She also cites Birdwell v. Birdwell, 819 S.W.2d 223 (Tex.App.--Fort Worth
1991, writ denied).         
	The February 9, 2000 order was signed pursuant to Sammy's Motion to Modify filed
on December 17, 1998.  Sharon does not question the trial court's jurisdiction over S.L.M.
and jurisdiction to enter modification orders as of the date the motion was filed: in
response to Sammy's Motion to Modify filed while S.L.M. was still 17 years old in
December, 1998, Sharon agreed that Sammy should be designated as primary custodian
with the right to establish residence and the domicile of S.L.M.  To the extent that the trial
court had subject matter jurisdiction as to conservatorship and possession of S.L.M. prior
to her 18th birthday, it retained jurisdiction after her birthday to enter orders as to
conservatorship and possession for periods prior to S.L.M.'s 18th birthday on May 16,
1999.  See McLendon v. Allen, 752 S.W.2d 731, 733 (Tex.App.--Corpus Christi 1988, no
writ).  Sharon does not claim, and has not shown, how she has been harmed by that part
of the order providing for conservatorship and possession after S.L.M. turned 18.  If the
trial court's order was erroneous, the error was harmless as to Sharon.  We overrule issue
four.    
ISSUE 5: DO SAMMY'S PLEADINGS SUPPORT
MODIFICATION OF PRIOR CHILD SUPPORT ORDER?
	Sharon's issue five urges that no pleadings support the court's February 9, 2000
order modifying child support obligations of Sammy effective as of December 17, 1998. 
We disagree.  
	Sammy's Motion to Modify was included as part of the pleading containing his
Answer and was filed on December 17, 1998.  See TRCP 85.  The certificate of service
shows that the pleading was faxed and mailed to counsel for Sharon on December 16,
1998.  Sharon appeared at and participated in the December 17th enforcement hearing. 
See Family Code § 157.063.  Her counsel was aware of Sammy's pleading at the time of
the hearing on December 17th, and did not dispute service of the pleading in accordance
with the certificate of service.  Nor does Sharon dispute service by fax and mail in her
appellate brief.  
	Sammy's answer and motion to modify alleged that S.L.M. filed a document
expressing her choice of Sammy as managing conservator and that she had been with him
in excess of court-ordered times of possession.  The pleading also asserted that prior
support orders are not in substantial compliance with the Family Code and requested,
among other matters, that if prior orders were modified to give Sammy the exclusive right
to establish the primary residence and domicile of S.L.M., then the prior support order
should be modified so as to order Sharon to make child support payments.  Sharon filed
no special exceptions to the pleadings.  
	Service of Sammy's answer and motion to modify by fax or mail is authorized by
TRCP 124 and 21a.  Support orders may be modified as to obligations accruing after the
date of service or appearance in the suit to modify.  Family Code § 156.401(b). The
pleadings of Sammy are sufficient to both give fair notice of the issue, see Holley v. Holley,
864 S.W.2d 703, 707 (Tex.App.--Houston [1st Dist.] 1993, writ denied), and to support the
February 9, 2000 order modifying child support.  See TRCP 301.  Sharon's fifth issue is
overruled. 


ISSUE 6: DO SAMMY'S PLEADINGS SUPPORT THE ORDER
 THAT SHARON HAD AN OBLIGATION TO PAY CHILD SUPPORT?

	By issue six Sharon urges that Sammy's pleadings are insufficient to support the
trial court's order that she was obligated to pay child support for S.L.M. either as of
December 17, 1998, or the time that S.L.M. went to live with Sammy in April, 1998.  Sharon
characterizes the child support as "retroactive" child support.  
	Sammy responds that the trial court's order was authorized by Family Code §
156.401.  We agree, in part, with both parties. 
 The term "retroactive support" has been used in two different contexts.  In one
context, the trial court can order retroactive support if child support has not been
previously ordered.  See Family Code § 154.009; In Interest of J.G.Z., J.N.Z., and J.B.Z.,
963 S.W.2d 144, 146 (Tex.App.--Texarkana 1998, no pet.).  As the term is used in the
second context, the trial court may "retroactively" modify existing child support obligations
to be effective as early as the time of service of citation or appearance in the suit to modify. 
See Family Code § 156.401; J.G.Z., 963 S.W.2d at 147.    
	Child support obligations of the parents and the children during April, 1998, and
subsequent times were the subject of an existing order.  Thus, any "retroactive" support
would be authorized only as the term is used in the second context.  See Peterson v.
Office of Att'y Gen., 990 S.W.2d 830, 832-33 (Tex.App.--Fort Worth 1999, no pet.).  In
addressing Sharon's fifth issue we determined that pursuant to Family Code § 156.401(b),
the answer and motion to modify served by Sammy's counsel on December 16, 1998, and
file-marked December 17, 1998, were sufficient to support the trial court's order modifying
Sammy's support obligations as of December 17, 1998.  We also conclude that Sammy's
pleadings seeking modification of the parent-child relationship were sufficient to both give
fair notice that he sought an order that Sharon pay child support for S.L.M., see Holley,
864 S.W.2d at 707, and to support the trial court's February 9, 2000 order that Sharon pay
child support as of December 17, 1998.  See TRCP 301.  The Family Code, however, does
not permit modification of the 1997 order to require her to pay support before December
17th.  See Peterson, 990 S.W.2d at 832-33.  
 Sammy's pleadings supported modification of the 1997 order and ordering  Sharon
to pay support as to periods on or after December 17, 1998.  But, the Family Code does
not authorize the order imposing on Sharon an obligation for child support for periods
before December 17, 1998.  For the reasons set out in our discussion of Sharon's issues
11 and 12, however, we conclude that the trial court's order imposing a child support
obligation on Sharon for the period prior to December 17, 1998 did not probably cause the
rendition of an improper judgment.  We overrule issue six.   
ISSUE 7: OFFSET OF SAMMY'S ACCRUED 
SUPPORT BY RETROACTIVE SUPPORT SHARON
WAS ORDERED TO PAY 

	Sharon's seventh issue asserts error by the trial court in crediting Sammy's
arrearage with an amount calculated at $329 per month beginning in April, 1998.  The
amount attributable to months between April and December 17th was categorized by the
trial court as arising from an "equitable right" of Sammy to receive child support from
Sharon during the time S.L.M. resided with Sammy before December 17, 1998, when
Sammy's Motion to Modify was filed.  The amount attributable to months after December
17, 1998, when Sammy filed his pleading seeking offset and modification of the 1997
order, was the amount Sharon was ordered in the February 9, 2000 order to pay as
support for S.L.M. effective December 17, 1998.  
	In response to Sharon's sixth issue, we have determined that the Family Code did
not allow the trial court to retroactively impose a child support obligation on Sharon for the
time prior to December 17, 1998.  To the extent the trial court allowed offset to Sammy for
an "equitable right" to receive child support from Sharon between April, 1998, and
December 17, 1998, the trial court erred.  For the reasons set out in our discussion of
Sharon's issues 11 and 12, however, we conclude that the error did not probably cause
the rendition of an improper judgment. 
	In response to Sharon's sixth issue, we have determined that the trial court was
authorized by the Family Code to modify the February 26, 1997 order and to order Sharon
to pay child support effective December 17, 1998. (6)  To the extent that Sharon asserts error
by the trial court in allowing an offset to Sammy for both the child support she was ordered
to pay effective December 17, 1998, and for actual expenditures Sammy made on behalf
of S.L.M. after that date, we conclude that, for the reasons set out in our discussion of
Sharon's issues 11 and 12, the error did not probably cause the rendition of an improper
judgment. Accordingly, we overrule issue seven.  
ISSUE 8: OFFSET IN EXCESS OF
PREVIOUSLY-ORDERED PERIODIC PAYMENTS 
	Sharon's eighth issue asserts that the trial court erroneously granted offsets to
Sammy in excess of the previously-ordered periodic payments he had been ordered to
make.  She argues that because the 1997 order provided for reduced support if one of the
children married, died, had disabilities of minority removed, or was emancipated, then any
offset allowed to Sammy was limited to the difference between the support for two children
($762.80 per month) and the reduced contingent amount for one child ($610.24 per
month).  She refers us to Family Code § 157.008(e) in regard to this assertion.   She
additionally urges that the trial court erred in allowing Sammy offset for her retroactive
support payments for the same time period that Sammy's actual expenditures were allowed
as an offset. 
	In her Motion for Enforcement, Sharon sought confirmation of and judgment for the
amounts ordered in the 1997 order for two children.  Sammy's response sought offset for
amounts of actual support he provided during the period S.L.M. was in his possession. 
He did not seek reimbursement of his expenditures as a counterclaim.  Sharon does not
contest the trial court's finding of fact that she voluntarily relinquished actual possession
and control of S.L.M. to Sammy in excess of court-ordered periods of possession and
access, and that Sammy supplied all actual support and medical attention for S.L.M. during
those periods.  
	The trial court's findings of fact included findings that Sammy was entitled to offset
for both $6,668.11 as one-half of S.L.M.'s medical bills which Sharon failed to pay, and
accrued retroactive child support from Sharon in the amount of $6,909 calculated at the
rate of $329 per month from April, 1998, through December 21, 1999.  Additionally, the
trial court found that Sammy had expended $13,737.64 in support for S.L.M. from April,
1998, until May 11, 1999.  From April, 1998, until February 9, 2000 (the effective date of
modification of the court-ordered periods of possession of S.L.M.), Sammy had possession
of S.L.M. for periods in excess of court ordered periods of possession. 
   	The court entered conclusions of law that Sammy was entitled to offset for actual
support he provided during periods of possession in excess of court-ordered possession,
as well as for the accrued retroactive child support obligation from Sharon and her half of
the uninsured medical expenses.  Sammy urges that the findings were supported by
evidence; Sharon disagrees.  
	We agree with Sammy:  the record contains documentary evidence supporting the
trial court's findings as to actual support by Sammy and the total amount of medical
expenses incurred by S.L.M. which the trial court could have relied on to make its findings. 
Sammy introduced and testified about a document setting out amounts which he actually
expended for S.L.M.'s support.  He supplied testimony and an affidavit to support the
amount and his payment of S.L.M.'s uninsured medical expenses.
	The amount of $6,909 which was offset for Sharon's retroactive child support
obligation in its entirety was less than the $13,737 found by the trial court as a fact to have
been Sammy's actual support for S.L.M. and for which Sammy was entitled to an offset. 
The factual findings of $6,668.11 as Sharon's obligation for uninsured medical expenses
and $13,737 for actual support supplied by Sammy yield an offset amount which exceeds
the amount Sharon claims as Sammy's arrearage, without allowing offset for any of the
$6,909 found as Sharon's retroactive support obligation. (7)  If the trial court erred in allowing
offset for retroactive child support covering the same period for which Sammy's actual
support was supplied, a question which we do not decide, the error did not probably result
in entry of an improper judgment.     
	We disagree that the trial court was limited to allowing Sammy an offset for the
difference between the support set by the 1997 order for two children ($762.80 per month)
and the reduced amount set for one child ($610.24 per month).  The 1997 order did not
set separate amounts for each of the two children.  Nor did it set an amount for one child
except in the event of specified contingencies, none of which occurred.  As relevant to this
issue, the 1997 order was determinative of the amount of child support Sammy owed,
subject to proof of (1) a contingency specified by the order which would change the
amount which Sammy was to pay, (2) amounts of support paid and (3) offsets and credits. 
The trial court did not err in allowing an offset for the full amount of Sammy's child support
arrearage measured by the language of its 1997 order which ordered him to pay $762.80
per month, instead of allowing offset for only the amount by which that support obligation
would have been reduced had one of the contingencies occurred to change Sammy's child
support to $610.24 per month.   
	In sum, the trial court's 1997 order did not apportion Sammy's child support between
the two children as Sharon contends.  The amount of Sammy's offset was not limited to the
difference between child support ordered for two children and that ordered for one child
in the event of contingencies which did not occur.  The trial court made controlling findings
of fact as to the amounts of uninsured medical expenses for which Sharon was responsible
and actual support Sammy provided to S.L.M.  The amounts found for S.L.M.'s uninsured
medical expenses and actual support by Sammy were sufficient to support offset of what
Sharon contends was Sammy's accrued child support obligation.  We conclude that any
error by the trial court as urged in issue eight was not such that it probably caused the
rendition of an improper judgment, and overrule issue eight. 
ISSUE 9: OFFSET OF ACCRUED CHILD SUPPORT BY
UNPAID MEDICAL EXPENSES
 By issue nine Sharon asserts that an offset for Sammy's unreimbursed medical
expenditures on behalf of S.L.M. should not have been allowed because it was not before
the court by any pleadings.  We disagree.  
	Sammy's Answer to the Motion for Enforcement specifically stated that he "has
supplied actual support and medical attention" during the periods in excess of court-ordered possession for which he had possession and control of S.L.M.  He then pled that
he was entitled to an offset for actual support provided during those periods.  Sharon did
not specially except to his pleadings or object to the trial court that Sammy's pleadings did
not support trial of the issue of S.L.M.'s medical expenses.  See TRCP 90, 91.  Evidence
as to the cost of and payment for S.L.M.'s medical care was introduced without objection
and without claim of surprise by Sharon at each of the three hearings.  The trial court,
without objection, allowed Sammy to file an affidavit of payment of S.L.M.'s medical
expenses following the last hearing.  
	We conclude that Sammy's pleadings were sufficient basis for the trial court to allow
offset for one-half of S.L.M.'s uninsured medical expenses which Sammy paid.  We
overrule issue nine.  ISSUE 10: WAGE WITHHOLDING ORDER
	By her tenth issue, Sharon claims that the trial court erred in failing to issue a wage
withholding order in accordance with Family Code § 154.001 [sic].  Sammy's brief
specifically disclaims objection to entry of such an order.  We sustain issue ten.
ISSUES 11 AND 12: ATTORNEY'S FEES,
 COURT COSTS AND INTEREST  
	Sharon's issues 11 and 12 claim that the trial court erred in failing to award her pre-and post-judgment interest on Sammy's child support arrearage, together with attorney's
fees and court costs.  She cites Family Code § 157.167 and In re Marriage of Williams,
998 S.W.2d 724, 730 (Tex.App.--Amarillo 1999, no pet.) on the issue of attorney's fees
and costs.  She cites Family Code § 157.265(a) and Castle v. Harris, 960 S.W.2d 140, 144
(Tex.App.--Corpus Christi 1997, no pet.) on the issue of interest.  She calculates that at
$762.80 per month from January 15, 1997, until December 21, 1999, Sammy should have
paid a total of $27,079.93 in support.  She agrees that he paid $12,204.80.  His arrearage,
she calculates, was $14,874.60.  Based on her assertion in issue eight that Sammy's offset
was limited to the difference between the amount of $762.80 specified for two children by
the 1997 order, and the amount of $610.82 specified by the order for one child if any of
certain contingencies occurred, Sharon contends that Sammy's maximum allowable offset
was $2,974.92 for the period from April, 1998, when S.L.M. went to live with Sammy, until
December 21, 1999.   
	Sammy responds that appellant's citations are inapposite.  He notes that the trial
court's findings of fact and conclusions of law supported the determination that Sammy's
offsets exceeded any arrearage.  He concludes that because the offsets exceeded any
arrearage, the trial court was not required to award attorney's fees and costs to Sharon
and did not err by failing to do so.
	We agree that the trial court was not required to award attorney's fees and costs
to Sharon.  In considering Sharon's issue eight, we have previously determined that
Sammy's offset was not limited to the difference between the amount of child support set
by the 1997 order for two children and the amount set for one child.  Thus, the trial court
was not precluded from allowing Sammy an offset for the amount of actual support he
provided during his periods of possession of S.L.M. in excess of court-ordered periods of
possession, and for one-half of S.L.M.'s uninsured medical expenses.           	  
	As we discussed in regard to issue eight, the trial court concluded that Sammy was
entitled to an offset for Sharon's unpaid one-half of S.L.M.'s uninsured medical expense
($6,668.11) and actual support Sammy provided to S.L.M. during his periods of possession
which were in excess of court-ordered periods of possession ($13,737.64).  Even
disregarding the amount of $6,909 found as Sharon's child support obligation, the trial
court's findings of fact support its judgment awarding no arrearage, because Sammy's
offset without including the $6,909 totaled $20,405.75 and exceeded the amount of his
arrearage which Sharon calculates was $14,874.60.  Sharon's calculation includes the
three payments prior to March 1, 1997, which we have agreed were improperly excluded
from the trial court's calculations, and does not take into account the reduction of Sammy's
support effective December 17, 1998, pursuant to the court order on his motion to modify. 
The trial court specifically found as a fact and concluded as a matter of law that the actual
support Sammy paid and one-half of S.L.M.'s uninsured medical should be offset.  See
Family Code §§ 157.006, 157.008.  We are to uphold the trial court judgment if the
controlling findings of fact support a correct legal theory. See Hitzelberger v. Samedan
Oil Corp., 948 S.W.2d 497, 503 (Tex.App.--Waco 1997, writ denied). 
	The trial court did not err in denying Sharon a judgment against Sammy for accrued
child support.  In the absence of a judgment for accrued support, the court did not abuse
its discretion in failing to award attorney's fees, costs and interest to her.  See Family Code
§ 157.167(a).  We overrule her issues 11 and 12.          
CONCLUSION
	We remand for further proceedings in accordance with Sharon's issue ten, and
direct the trial court to cause a wage withholding order to issue as to Sammy's child
support obligations.  In all other aspects, we affirm the judgment of the trial court.    	
							Phil Johnson
							    Justice




Publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
2. The actual date on the order is February 26, 1996.  Neither party complains of the
error in the date.  We will refer to the order, as do the parties, as the February 26, 1997
order, or, simply as the 1997 order.
3. S.L.M. turned 18 on May 16, 1999.  She was to graduate from her high school
course of instruction in May, 2000.  
4. Further references to the Family Code will be by reference to "Family Code § _."
5. Further references to a Rule of Civil Procedure will be by reference to "TRCP
______."
6. The 1997 order designated Sharon and Sammy as joint managing conservators
with each having the right at all times to receive and give receipt for periodic payments for
support of the children and to hold or disburse funds for the benefit of the children.  Those
parts of the 1997 order were not modified by the trial court's order on Sammy's Motion to 
Modify.  
7. Neither party urges a conflict in the findings of fact that Sammy expended
$13,737.64 in actual support of S.L.M., Sharon's obligation for child support was $6,909,
Sharon's obligation for uninsured medical was $6,668.11, and that Sammy was entitled to
offset or credit of $13,577.11.  We note that findings of fact occupy the same position as
the verdict of a jury.  See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986).  We
have the duty to reconcile conflicting findings if at all possible.  See Signal Oil and Gas Co.
v. Universal Oil Products, 572 S.W.2d 320, 326 (Tex. 1978); Rios v. Texas Dept. of Mental
Health and Mental Retardation, 58 S.W.3d 167, 171 (Tex.App.--San Antonio 2001, no
pet.).  The trial court's findings, did not limit Sammy's offset to a particular amount; the
findings were of several amounts to which he was entitled to offset or credit.      

2.0pt;mso-no-proof:
yes'> 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE COUNTY COURT AT LAW NO. 2
OF LUBBOCK COUNTY;
 
NO. 2008-450,254; HONORABLE DRUE FARMER, JUDGE

 

 
Before QUINN,
C.J., and HANCOCK and PIRTLE, JJ.
 
 
MEMORANDUM OPINION
 
 
Appellant, Megan Crittenden, was
convicted of driving while intoxicated (DWI)[1]
and sentenced to 90 days confinement in the Lubbock County Jail.  Appellant appeals,
contending that the trial court committed reversible error by not conducting a
hearing outside the presence of the jury regarding the voluntariness of her
confession.  Further, appellant
alleges that the trial court committed reversible error by failing to grant a
jury instruction pursuant to article 38.23(a) of the Texas Code of Criminal
Procedure.[2]  We affirm.
Factual and Procedural Background
            Appellant
was arrested for the offense of DWI on March 24, 2006, while driving her car on
the Texas Tech University campus. 
According to Officer Wainscott of the Texas
Tech University Police Department, he first observed appellant driving at a
speed faster than the posted speed limit, but was unable to verify his
observation by radar or by pacing appellants car.  Wainscott followed
appellants car for a short distance. 
During this time, Wainscott testified, he
observed the car weave within its lane of travel and ultimately pull up to a
stop sign, where it failed to come to a complete stop before proceeding.  At this moment, Wainscott
activated his emergency lights and pulled appellant over.  
            Wainscott proceeded to question appellant and, as a result
of the questioning, determined she had been consuming alcoholic beverages.  After asking appellant to exit the car, Wainscott proceeded to administer a number of field
sobriety tests.  Based upon her
performance in completing the field sobriety tests, Wainscott
decided to arrest appellant for DWI. 
Appellant was asked to give a breath specimen for testing purposes and
agreed.  After appellant was transported
to the Lubbock County Jail, an intoxilyzer test was
administered to appellant.  The record
reflects that the result of the test was above the legal limit at .109.
            After
being charged with the DWI, appellant and trial counsel initially reached an
agreement with the State that appellant would enter a pre-trial diversion
program.  According to the record,
appellant applied for pre-trial diversion on August 30, 2006.  Appellant was accepted into the program, and
the program contained a number of terms and conditions.  Among those were that she avoid
the use or possession of alcohol or alcoholic beverages for 24 months.  Additionally, she was not to go to
restaurants and bars that had, as their primary source of income, the sale of
alcohol or alcoholic beverages.  The
pre-trial diversion program also required that appellant acknowledge and waive
her constitutional rights and sign a judicial confession.  Appellants application further acknowledged
that, should she fail to complete the pretrial diversion program, the charges
would be refiled and the judicial confession could be
used against her.  Appellant agreed to
the terms and, subsequently, on December 21, 2007, appellants charges were
dismissed.  
            On
April 25, 2008, appellant was arrested for a subsequent offense.  As a result of this arrest, the original DWI
charges were refiled and the case tried.  That trial resulted in appellants conviction
for DWI and sentence of 90 days in the Lubbock County Jail.  Appellant, by two issues, attacks the
judgment of conviction.  We disagree with
appellant and affirm the trial courts judgment.
Trial
Courts Failure to Hold Hearing on
 Voluntariness of Appellants Confession
            Appellants
first issue contends that the trial court committed reversible error because it
failed to conduct a hearing outside the jurys presence about the voluntariness
of appellants confession.  See
art. 38.22, § 6. 
The confession at issue is the judicial confession contained in
appellants application for pre-trial diversion.  
Preservation of Error
            Prior
to reaching the merits of appellants contention, we must consider whether
appellant has properly preserved this issue for appeal.  We must take this preliminary step for two
reasons.  First, the statute requires the
hearing which appellant contends was lacking only in cases where a question is
raised as to the voluntariness of a statement of an accused . . . .  Id. 
Therefore, if the issue of voluntariness is not brought to the trial
courts attention, there is no requirement for a hearing.  Secondly, the courts in Texas recognize that
preservation of error is a systemic requirement that must be reviewed by the
courts of appeals regardless of whether the issue is raised by the
parties.  Haley v.
Smith, 173 S.W.3d 510, 515 (Tex.Crim.App. 2005).  While, here, the issue of preservation has
been raised by the State, Haley simply reinforces the requirement and
the reason for the requirement of preservation. 
According to our appellate rules, in order to preserve a complaint for
appellate review, an appellant must have made a timely objection or motion that
stated the grounds for the ruling that the complaining party sought from the
trial court with sufficient specificity to make the trial court aware of the
complaint.  See Tex. R. App. P. 33.1(a)(1)(A).
            Appellant
points out that there are three ways in which a defendant can raise the issue
of voluntariness of a confession in order to trigger the requirements of article
38.22, section 6.  An explicit request
for a hearing on the matter can be made. 
See  McNeill
v. State, 650 S.W.2d 405, 407 (Tex.Crim.App.
1983).  Or, an appellant can make an
explicit objection on the grounds of voluntariness of the confession.  See Wicker v. State, 740 S.W.2d 779, 782 (Tex.Crim.App.
1987).  Finally, an appellant can,
through objections, motions, or the evidence presented, draw the attention of
the trial court to a factual scenario that presents the question of whether the
statement was made voluntarily.  See
Reed v. State, 518 S.W.2d 817, 820 (Tex.Crim.App.
1975) (concluding that the context of the objection made, based on the custody
of the defendant and the fact that the defendant was not taken before a
magistrate for judicial warnings, spoke to the issue of voluntariness); see
also Page v. State, 614 S.W.2d 819, 819-20 (Tex.Crim.App.
1981) (equating the issue of mental competency of appellant to waive his rights
while confessing to a challenge as to the voluntariness of the
confession).  With this background, we
begin to look at the precise objections appellant made to the use of the
confession. 
First, appellant contends that there
was a pre-trial motion that requested a hearing be held outside the presence of
the jury regarding the admissibility of appellants prior statements.  To state the obvious, an appellants
statement could be inadmissible for any number of reasons.  In this case, a review of the motion reveals
that it is a boiler-plate motion that lists every possible objection that a
similarly situated appellant could make to the admission of a statement.  Specifically, paragraph III of the motion
states that:
This request is based on the Fifth, Sixth and Fourteenth Amendments to
the United States Constitution, Article I, Section 10 and 19 of the Texas
constitution, and Articles 1.04, 1.05, 1.051(a), 38.21, 38.22, and 38.23 of the
Texas Code of Criminal Procedure.
At the pre-trial hearing, the issue
of the motion was discussed; however, nowhere in the discussion did the subject
of voluntariness of appellants confession ever appear.  In fact, the record reveals that the subject
of appellants confession was not even mentioned during the hearing; rather,
appellants counsel seemed focused on possible oral statements of appellants
that might appear on the in-car video of the arresting officer.  Under these facts, we cannot say that an
issue regarding the voluntariness of the confession was raised.  See art. 38.22, § 6.  
            Turning
our attention to the objections made at the time the State was offering
appellants confession, we see that trial counsel
lodged three separate objections.  First,
trial counsel objected that the introduction of the confession violated Rules
408 and 410 of the Texas Rules of Evidence. 
See Tex. R. Evid. 408, 410.[3]  Rule 408 deals with compromise and offers to
compromise.  Nothing in Rule 408
mentions, alludes to, or could be considered to encompass the voluntariness of
a confession.  Rule 410 deals with
inadmissibility of pleas, plea discussions, and related statements.  While it is correct that Rule 410 has an
application in criminal law, it is directed at the use of statements made
during unsuccessful plea negotiations.  See
Bowie v. State, 135 S.W.3d 55, 60-61 (Tex.Crim.App. 2004). 
Nothing in Rule 410 is directed at the voluntariness of an appellants
statement.  Therefore, we can be assured
that trial counsels initial objection did not put the trial court on notice
that appellant was seeking to contest the voluntariness of her confession.
            Trial
counsel next objected to the use of the confession based upon the contractual
nature of the pre-trial diversion agreement. 
According to this theory, since the State could withdraw the pre-trial
diversion agreement unilaterally, the contract is not only unilateral in nature
but is also an illusory contract.  Thus,
according to the appellant, the contract is an illegal contract.  Because no evidence obtained in violation of
the provisions of the laws of the State of Texas is admissible at trial under
the provisions of article 38.23, appellant reasons that the confession is not
admissible.  Without regard to whether article
38.23 even applies in this contractual arena, the point is that nothing in this
objection mentions or alludes to the voluntariness of appellants
confession.  Again, the trial court was
not put on notice that voluntariness of the confession was at issue.
            Finally,
the third objection lodged at trial was that the use of the confession was simply
a backdoor-way of getting [appellant] to testify.   By this objection, appellant contends that
the use of the confession by the State was simply a way to force appellant to
testify in derogation of her Fifth Amendment rights.  Whether this theory of appellants is correct
is of no moment, for the question is: Does this objection place the trial court
on notice that appellant contends that the confession was involuntarily
made?  The answer is no.  
            Having
reviewed the pre-trial motion and all three objections lodged at trial, we
conclude that appellant did not make an objection that stated the grounds for
the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint.  See Tex.
R. App. P. 33.1(a)(1)(A).  Accordingly, appellants issue preserves
nothing for review regarding the voluntariness of the confession.  Wilson v. State, 71 S.W.3d 346, 350 (Tex.Crim.App. 2002) (citing Thomas v. State, 723
S.W.2d 696, 700 (Tex.Crim.App. 1986)).  Appellants first issue is overruled.
Article 38.23 Instruction
            Appellant
next contends that the trial court committed reversible error when it refused a
request to instruct the jury pursuant to article 38.23.  The standard of review for jury charge error is set
out in Almanza v. State, 686 S.W.2d 157,
171 (Tex.Crim.App. 1984) (op. on rehg),
and reaffirmed in Middleton v.
State, 125 S.W.3d 450, 453 (Tex.Crim.App.
2003).  We first determine if error
exists in the courts charge.  Id. (citing Hutch v. State,
922 S.W.2d 166, 171 (Tex.Crim.App.
1996)).  If we find charge error, then we
analyze the error for harm with the type of harm analysis we employ dependent
on whether the error was preserved.  Id.  Under Almanza, for
preserved error, we must reverse if we conclude the defendant suffered
"some harm."  Almanza, 686 S.W.2d
at 171.  If error was not properly
preserved, we will reverse only if the record establishes, as a result of the
courts error, the defendant suffered "egregious harm."  Id.         
Analysis
To determine if there has been error,
we turn to the seminal case of Madden v. State, 242 S.W.3d 504, 510 (Tex.Crim.App. 2007). 
There, the Court of Criminal Appeals set forth three requirements to
obtain a charge pursuant to article 38.23, 
(1) The
evidence heard by the jury must raise an issue of fact;
(2) The
evidence on that fact must be affirmatively contested; and
(3) That
contested factual issue must be material to the lawfulness of the challenged
conduct in obtaining the evidence. 
Id.  
            Appellants
argument centers around Wainscotts testimony that
appellant failed to come to a complete stop at the stop sign immediately before
he initiated the traffic stop.  At the
trial, the State introduced the video taken by Wainscotts
in-car video camera.  Upon showing the
same to the jury, Wainscott pointed to the fact that,
if you watched the rear tires of appellants vehicle, you could see that they
never came to a complete stop. 
Appellants trial counsel vigorously cross-examined Wainscott
about this issue.  However, Wainscotts testimony never changed.  Trial counsel also argued that, on the video,
you could hear appellant state that she knew the officer was back there and,
therefore, did come to a complete stop. 
However, our review of the video does not lead to that conclusion.  Appellant did start making a statement about
knowing the officer was behind her. 
However, she never finished the statement, and she cannot be heard
saying affirmatively that she stopped at the stop sign.  We are therefore left with a situation that
is much like that discussed in Oursbourn v.
State, 259 S.W.3d 159, 177 (Tex.Crim.App. 2008),
where the Court of Criminal Appeals said that the factual dispute necessary for
a jury instruction, pursuant to article 38.23, can be raised only by
affirmative evidence, not by mere cross-examination questions or argument.  The court in Oursbourn
went on to point out a hypothetical that made the courts position even
clearer.  The court said:
For example, the officer in our hypothetical may deny, on
cross-examination, that he held a gun to the defendants head to extract the
confession.  The implication by counsel,
that the officer did perform that act, does not, by itself, raise a disputed
fact issue.  But if the defendant (or
some other witness) testifies that the officer held a gun to his head, then a
disputed fact issue exists.  And the jury
must resolve that disputed fact issue.
Id.  Just as the court in Oursbourn, we do not have a disputed fact issue
raised by affirmative evidence.  See
Madden, 242 S.W.3d at 510.  All we
have is the cross-examination of the officer and the argument of counsel.  See Oursbourn,
259 S.W.3d at 177. 
Accordingly, the trial court did not err in denying the requested
instruction pursuant to article 38.23. 
Appellants second issue is overruled.
Conclusion
            Having
overruled appellants issues, we affirm the judgment of the trial court.
 
                                                                                                Mackey
K. Hancock
                                                                                                            Justice
 
Do not publish.  
Pirtle, J., concurring in
result only.  
 
 
            



 




[1] See Tex.
Penal Code Ann. § 49.04(a)
(Vernon 2003).
 


[2] Further reference to the Texas Code of Criminal
Procedure will be by reference to art. ___ or article ____.


[3] Further reference to the Texas Rules of Evidence will
be by reference to Rule ___.


