Reversed and Remanded and Majority and Dissenting Opinions filed May 29,
2014.




                                      In The

                      Fourteenth Court of Appeals

                               NO. 14-13-00301-CV

                       VICTORIA V. OCHSNER, Appellant
                                        V.

                        PRESTON A. OCHSNER, Appellee

                      On Appeal from the 247th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2001-54131

                                 OPINION

      Victoria V. Ochsner appeals the trial court’s order denying her motion for
enforcement of child support order against Preston A. Ochsner. We reverse the
trial court’s order denying the motion for enforcement of child support order and
remand this case to the court below with instructions to enter a judgment for child
support arrearages.
                                    BACKGROUND

      Victoria and Preston were divorced in December 2001.           During their
marriage, the couple had one child, A.B.O. The divorce decree ordered Preston to
pay child support, in relevant part, as follows:

      IT IS ORDERED AND DECREED that PRESTON A[.] OCHSNER
      shall pay to VICTORIA V. OCHSNER child support in the amount of
      $240[.]00 per month, in two (2) installments per month of $120[.]00
      each, with the first installment being due and payable on January 1,
      2002, and the second installment of $120[.]00 being due and payable
      on January 15, 2002, and a like installment being due and payable
      each 1st and 15th day of each month thereafter until the date of the
      earliest occurrence of one of the following events[:]
                      *                    *               *
      the child no longer attends Enron’s Kid’s Center day care;
                      *                    *               *

      On the first day of the month following discontinuation of the child’s
      day care at Enron Kid’s Center[,] PRESTON A. OCHSNER is
      obligated to pay and shall pay to VICTORIA V[.] OCHSNER child
      support of $800[.]00 per month, in two (2) installments per month of
      $400[.]00 each, with each payment being due and payable on the 1st
      and 15th days of each month thereafter until the first month following
      the date of the earliest occurrence of one of the events specified
      below:
                      *                    *               *

      IT IS ORDERED AND DECREED that all payments shall be made
      through the Harris County Child Support, P.O. Box 4367, Houston,
      TX 77210-4367, and then remitted by that agency to VICTORIA V.
      OCHSNER for the support of the child . . . .
A.B.O. stopped attending Enron Kid’s Center on or before September 30, 2002.
Preston continued to pay $240 per month in child support. After A.B.O. stopped
attending Enron’s Kid’s Center, Preston paid for her to attend the following


                                           2
daycare and private schools: Crayon Clock Daycare from October to December
2002; St. Nicholas Episcopal School from January 2003 to May 2004; South
Hampton School from June 2004 to June 2006; and St. Thomas School from
September 2006 to December 2010.             The parties agree that Preston paid
$78,206.06 to these facilities during October 1, 2002 through January 1, 2011.
Preston testified that after A.B.O. stopped attending Enron’s Kid’s Center, he
agreed with Victoria that instead of paying increased monthly child support
payments, he would pay A.B.O’s daycare and tuition. He also testified that this
agreement was not reduced to writing or presented to the trial court for approval.

      Victoria filed a motion for enforcement of child support order and order to
appear on January 12, 2011, alleging that Preston failed to pay $800 per month in
child support that was due beginning October 1, 2002 and ending January 1, 2011.
Attached to the motion was a copy of the Harris County Child Support records,
which reflected that Preston made monthly payments of $240 in child support and
did not increase his monthly payments to $800 after A.B.O. stopped attending
Enron Kid’s Center. The parties agree that the difference between what Preston
paid in child support and what he was required to pay by the divorce decree is
$55,569.40.

      The trial court conducted a hearing on Victoria’s motion for enforcement
and denied Vitoria’s motion, concluding that the divorce decree did not contain
language ordering Preston to make periodic child support payments after A.B.O.
stopped attending Enron’s Kid’s Center. Victoria appealed to this court. This
court determined that the trial court erred in concluding that no underlying order
existed that required Preston to make child support payments after A.B.O. stopped
attending Enron’s Kid’s Center and remanded the case to the trial court for
proceedings consistent with its findings. See Ochsner v. Ochsner, 14-11-00395-

                                         3
CV, 2012 WL 1854743, at *5 (Tex. App.—Houston [14th Dist.] May 22, 2012, no
pet.) (mem. op.).

       The trial court heard the matter again on January 30, 2013, and concluded
that Preston was not in arrears based on the evidence that he paid daycare and
private school tuition in excess of what he owed in child support. The trial court
signed an order denying Victoria’s motion for enforcement on February 15, 2013.
Each party was ordered to pay his and her own attorney’s fees. This appeal
followed.

                                            ANALYSIS

       In one issue on appeal, Victoria asserts that the trial court abused its
discretion by denying her motion for enforcement of child support order.1

I.     Standard of Review

       A trial court’s decision to grant or deny the relief requested in a motion for
enforcement is reviewed for abuse of discretion. Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990); McBride v. McBride, 396 S.W.3d 724, 730 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied). A trial court abuses its discretion when it
acts without reference to any guiding rules or principles, or when it fails to analyze
or apply the law correctly. Worford, 801 S.W.2d at 109; In re A.L.S., 338 S.W.3d
59, 65 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). When no findings of
fact and conclusions of law are filed, we imply that the trial court made all findings

       1
          Preston asserts that Victoria waived review of her sole issue because she failed to cite to
the record or provide any substantive analysis. We disagree and conclude that Victoria’s brief
complies with Texas Rule of Appellate Procedure 381(i). See State v. PR Invs. & Specialty
Retailers, Inc., 180 S.W.3d 654, 670 n.16 (Tex. App.—Houston [14th Dist.] 2005) aff’d, 251
S.W.3d 472 (Tex. 2008) (“In applying the Texas Rules of Appellate Procedure, including Rule
38.1, the Texas Supreme Court has instructed courts of appeals to construe these procedural rules
reasonably, yet liberally, so that a party’s right to appeal is not compromised by imposing
requirements that are not absolutely necessary to effect the purpose of the rule in question.”).

                                                 4
necessary to support the judgment and will uphold those findings if supported by
sufficient evidence.      Chenault v. Banks, 296 S.W.3d 186, 189 (Tex. App.—
Houston [14th Dist.] 2009, no pet.).

II.    Child Support Arrearages

       Victoria argues that the trial court erred in calculating child support
arrearages by crediting Preston’s payments to a daycare and private school. As a
preliminary matter, Preston argues that he was entitled to credit on his child
support arrearage for the tuition payments he made, which totaled $78,206.06.2

       The trial court’s discretion is limited in calculating child support arrearages.
Id. A trial court may not reduce or modify the amount of child support arrearages
except as specifically provided in the Family Code. Act of June 19, 2009, 81st
Leg., R.S., ch. 540, § 1, sec. 157.262, 2009 Tex. Gen. Laws 1242, 1242, repealed
by Act of June 17, 2011, 82nd Leg., R.S., ch. 508, § 24, 2011 Tex. Gen. Laws
1270, 1270;3 Chenault, 296 S.W.3d at 189.                   “Thus, as with child support
arrearages, the trial court’s child support calculations must be based on the
payment evidence presented, not the trial court’s assessment of what is fair or
reasonable.” In re A.L.S., 338 S.W.3d at 66.

       Nevertheless, a money judgment for arrearages may be subject to a


       2
          Preston also argues that language in the divorce decree allowed the trial court to
determine whether Preston’s tuition payments constituted payment of child support. The
relevant portion of the decree states: “Failure of a party to make child support payments to the
place and in the manner required by a Court Order may result in the party not receiving credit for
the payment.” We conclude that this language does not support Preston’s position. Instead, it
supports the position that Preston’s tuition payments did not constitute child support.
       3
          Because the action was brought on January 12, 2011, former section 157.262 of the
statute applies. See In re M.C.C., 187 S.W.3d 383, 384 (Tex. 2006). Nevertheless, the current
version of the statute contains similar language, under which a trial court may not reduce or
modify the amount of child support arrearages except as provided by the Family Code. See Tex.
Fam. Code Ann. § 157.263 (b-1) (Vernon 2014).

                                                5
counterclaim or offset as provided by the Family Code. See Act of June 19, 2009,
81st Leg., R.S., ch. 540, § 1, sec. 157.262, 2009 Tex. Gen. Laws 1242, (repealed
2011). A counterclaim or offset may be given “for monies paid by an obligor for
actual support of a child during certain time periods and lump-sum monies
received by the obligee from an obligor’s disability payments.” Office of Attorney
Gen. of Tex. v. Scholer, 403 S.W.3d 859, 864 (Tex. 2013) (citing Tex. Fam. Code
Ann. §§ 157.008(d), 157.009 (Vernon 2014)).

      The governing statutory scheme reflects important public policy goals.
Child support is not a debt; rather, it is a duty owed to the child that cannot be
affected by the “quarrels, iniquities, or mutual agreements” of the parents.
Scholer, 403 S.W.3d at 866. “The trial court plays an integral role in child support
proceedings to ensure the protection of the child’s best interests.” Chenault, 296
S.W.3d at 190. Private agreements that alter child support obligations bypass this
protection, violate public policy, and are unenforceable. Id. Parents must obtain
court approval, conditioned on the best interest of the child, before they can agree
to modify child support. Scholer, 403 S.W.3d at 866.

      Neither Victoria nor Preston asked the trial court to modify the child support
obligations found in the original divorce decree to allow Preston’s payments to a
daycare and private schools to constitute child support. Thus, even if the trial court
found that the parties agreed that Preston’s payment to a daycare and private
school constituted child support, such an agreement is unenforceable and is not a
proper basis for reducing child support arrearages. See id. at 867 (If a father
believes that “his rights and his support obligations have been terminated, he
should ensure that a court order reflects that.”); Chenault, 296 S.W.3d at 190.
(Trial court abused its discretion by crediting a father’s tuition payment to the
Marine Military Academy as child support.); In re V.L.K., 02-10-00315-CV, 2011

                                          6
WL 3211245, at *4 (Tex. App.—Fort Worth July 28, 2011, no pet.) (mem. op.) (A
written agreement between a father and a mother that the father would no longer
pay child support was unenforceable.).

      Further, Preston’s daycare and tuition payments do not constitute a
counterclaim or offset as provided by the title. The title provides for counterclaims
or offsets “for monies paid by an obligor for actual support of a child during
certain time periods and lump-sum monies received by the obligee from an
obligor’s disability payments.” Scholer, 403 S.W.3d 859 at 864 (citing Tex. Fam.
Code Ann. §§ 157.008(d), 157.009).               This case does not involve voluntary
relinquishment of actual possession and control of the child; nor does it involve
disability payments. Therefore, subsection 157.008(d) and section 157.009 are not
implicated.

      Because private agreements that alter child support obligations are
unenforceable, we find that the trial court abused its discretion in concluding that
Preston was not in arrears. Accordingly, we sustain Victoria’s single issue on
appeal.

                                   CONCLUSION

      Having sustained Victoria’s single issue on appeal, we reverse the trial
court’s order denying the motion for enforcement of child support order and
remand this case to the court below with instructions to enter a judgment for child
support arrearages.


                                       /s/         William J. Boyce
                                                   Justice

Panel consists of Justices Boyce, Christopher, and Brown.             (Christopher, J.,
dissenting).

                                             7
