                                  NO. 07-10-0435-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                    APRIL 12, 2012

                         ______________________________


      UNDERWOOD, WILSON, BERRY, STEIN & JOHNSON, P.C., APPELLANT

                                           V.

                        VINCENT P. SPERRAZZA, APPELLEE


                       _________________________________

             FROM THE DISTRICT 108TH COURT OF POTTER COUNTY;

            NO. 62,277-E; HONORABLE DOUGLAS WOODBURN, JUDGE

                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Underwood, Wilson, Berry, Stein and Johnson, P.C., appeals the trial

court's October 4, 2010 Order Terminating Writ of Withholding and Lien. Presenting

three issues, Appellant maintains (1) the order is void because the trial court lacked

plenary power to vacate its prior orders; (2) alternatively, the trial court abused its

discretion when it terminated the withholding order; and (3) the trial court's October 27,
2009 Agreed Order Terminating Order for Withholding did not affect Appellant's rights.

We sustain Appellant's second issue and reverse and remand.


                                   Procedural History


       Appellee, Vincent P. Sperrazza, and his former wife divorced in 1999 in Bastrop

County, Texas. They are the parents of one child, Z.C.S. The final decree of divorce

appointed both parents as joint managing conservators, with Z.C.S.'s mother having the

right to establish the child's primary residence. The decree ordered Appellee to pay

child support and further directed his employer to withhold earnings to satisfy that

obligation.     In 2000, the case was transferred to Potter County, Texas.        Several

modification orders were subsequently entered.       In 2005, a modification order was

entered which provided:


       [t]he Court finds as attorney's fees and expenses rendered in this suit on
       behalf of Respondent [mother] were necessaries to the child, [Z.C.S.]. IT
       IS THEREFORE ORDERED that good cause exists to award the law firm
       of Underwood, Wilson, Berry, Stein & Johnson, P.C., a judgment of
       $8,000.00 for attorney's fees and expenses rendered in relation to the
       child and in the nature of child support . . . . The judgment, for which let
       execution issue, is awarded against VINCENT PAUL SPERRAZZA,
       Petitioner.

(Emphasis added.) This modification order was never appealed.

       In 2009, Appellee and his former wife entered into an agreed order wherein the

court ordered that Appellee have the exclusive right to determine the child's domicile,

terminated his child support obligation, and ordered that his former wife pay child

support.      Thereafter, on June 18, 2010, Appellant filed a Notice of Application for

Order/Notice to Withhold Income for Child Support (Judicial Writ of Withholding)



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requesting child support arrearages for the principal amount of $8,000.00 in attorney's

fees from the 2005 order, plus accrued interest. Appellee filed an answer to the notice

in which he claimed that the obligation for attorney's fees had been discharged in

bankruptcy. 1 On July 14, 2010, an order was entered directing Appellee's employer to

withhold from his income $600.00 per month for "[a]ttorney's fees judgment, plus

interest, as child support." On July 21, 2010, Appellee moved to stay issuance of that

writ of income withholding for child support. Appellant filed an answer alleging the

motion to stay was moot, without legal authority, and also pleaded affirmative defenses

of res judicata, collateral estoppel, waiver, estoppel and laches. In denying Appellee's

motion to stay, the trial court found that it had jurisdiction over the matter, but found

Appellee was not entitled to a hearing on the motion because it was untimely filed. That

order was not appealed.


       On July 29, 2010, prior to the denial of his motion to stay, Appellee also moved to

terminate the writ of income withholding. Appellant answered contending there was no

legal authority for a hearing on the motion to terminate and again pleaded various

affirmative defenses. A hearing was held on September 13, 2010, and the following

day, the trial court advised counsel that after researching the issue, it concluded the

attorney's fees awarded "'in the nature of child support' [was] void" and informed the

parties it would be entering an order terminating the July 14, 2010 writ of income

withholding. On October 4, 2010, the trial court memorialized its ruling terminating the

withholding order and also terminating any lien encumbering Appellee's property. It is

1
 According to several of Appellee's pleadings, his debts were discharged in bankruptcy in cause number
05-20455-7, on August 10, 2005. We express no opinion as to whether bankruptcy discharges a debt for
attorney's fees awarded "in the nature of child support."


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this order from which Appellant appeals. Findings of Fact and Conclusions of Law were

entered by the trial court on October 26, 2011.


       Both parties agree this appeal turns on the question of whether the 2005 order

awarding attorney's fees "in the nature of child support" is void or voidable. Therefore,

we begin by addressing Appellant's second issue by which it contends the trial court

abused its discretion by granting Appellee's motion to terminate the writ of withholding

and lien because the motion amounted to a collateral attack on a final judgment.

Appellee's reply is premised on the contention that the 2005 order is void, and because

it is void, as opposed to voidable, it is subject to attack at any time. For the reasons

expressed herein, we disagree with Appellee's contention.


                                      Standard of Review


       We review the trial court's order terminating a writ of withholding for abuse of

discretion. Beistel v. Allen, Nos. 01-06-00246-CV and 01-06-00276-CV, 2007 Tex. App.

LEXIS 4307 (Tex.App.--Houston [1st Dist.] May 31, 2007, no. pet) (mem. op.). 2 A trial

court abuses its discretion when it acts "without reference to any guiding rules and

principles." Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010)

(quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

Furthermore, a trial court abuses its discretion if "it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law." Johnson v. Fourth

Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).


2
 Appellee asserts we should apply a de novo review because the award of attorney's fees is a legal
conclusion. We disagree. This appeal is a review of a trial court's 2010 order terminating a writ of
withholding, not the 2005 order awarding attorney's fees in the nature of child support.

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I. Analysis


       A. Characterization of Attorney's Fees as Child Support


       The Legislature distinguishes between the award of attorney's fees and costs

awarded in modification suits and those awarded in child support enforcement actions

because of the potentially serious consequences that stem from an award of attorney's

fees in the nature of child support. See In re K.J.D., 299 S.W.3d 517, 518 (Tex.App.--

Dallas 2009, no pet.). Attorney's fees awarded in a modification suit may be collected

by any means available for the enforcement of a judgment for debt. Tex. Fam. Code

Ann. § 106.002(b) (West 2008); In re K.J.D., 299 S.W.3d at 518. By way of contrast,

attorney's fees awarded in a child support enforcement proceeding may be enforced by

any means available for the enforcement of child support, including contempt. Tex.

Fam. Code Ann. § 157.167(a) (West 2008); In re Moers, 104 S.W.3d 609, 611

(Tex.App.--Houston [1st Dist.] 2003, no pet.). Therefore, in an enforcement proceeding

attorney's fees may be awarded as additional child support. See In re K.J.D., 299

S.W.3d at 518. See also In re A.M.W., 313 S.W.3d 887, 893 (Tex.App.--Dallas 2010,

no pet.).


       B. Void versus Voidable


       An order awarding attorney's fees as child support cannot be reviewed by

collateral attack unless the order is void. See Austin Indep. Sch. Dist. v. Sierra Club,

495 S.W.2d 878, 881 (Tex. 1973) (holding that the judgment of a court of general

jurisdiction is not subject to collateral attack except on the ground that the court lacked

jurisdiction to enter that particular judgment). Jurisdiction refers to a court's authority to

                                              5
adjudicate a case. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003). As long as a

court entering a judgment has jurisdiction of the parties and the subject matter and does

not act outside its capacity as a court, the judgment is not void. Id. Errors other than

lack of jurisdiction, such as "a court's action contrary to a statute or statutory

equivalent," merely render the judgment voidable which is correctable through the

ordinary appellate process or other proper proceeding. Id.


                                        Discussion


       The 2005 modification order awarded Appellant $8,000.00 for attorney's fees and

expenses and characterized the award as being "in the nature of child support."

Because this was not an enforcement proceeding, the trial court's characterization of

the award as being in the nature of child support was contrary to statutory authority.

Notwithstanding the fact that Appellee and his former wife agreed to terminate a

withholding order for child support in 2009, the 2005 award of attorney's fees remained

unpaid and Appellant took action to enforce that award by filing a notice of application

for judicial withholding on June 18, 2010, pursuant to section 158.301 of the Family

Code. Accompanying the notice was a suggested form for Appellee to use to file a

verified motion to stay issuance of the writ pursuant to section 158.307(a). On July 14,

2010, the trial court entered an order directing Appellee's employer to withhold earnings

to satisfy that obligation. On July 21, 2010, more than a month after the notice was

originally filed by Appellant, Appellee filed a motion to stay delivery of the judicial writ of

withholding. Prior to obtaining a ruling on his motion to stay, he also filed a motion to

terminate the writ of withholding. The motion to stay was denied by order dated August



                                              6
5, 2010, which provided in part, that Appellee was not entitled to a hearing "having

failed to timely file his motion." 3


        Thirty-nine days after denying Appellee's motion to stay, the trial court held a

hearing on the pending motion to terminate the writ of withholding. At the conclusion of

that hearing the trial court announced the 2005 modification order awarding Appellant

attorney's fees was "void" and also announced it was terminating its July 14, 2010

withholding order. On October 4, 2010, the trial court signed its order terminating the

July 14, 2010 judicial writ of withholding and also terminating any lien encumbering

Appellee's property.         Appellant is now appealing the order terminating the writ of

withholding.


        The 2005 modification order awarding attorney's fees was not challenged by

Appellee by direct appeal. However, because the proceeding was a modification of

child support and not brought for enforcement of child support, the court's action in

awarding attorney's fees as child support was contrary to section 157.167(a) of the

Texas Family Code. However, the trial court's incorrect characterization of the award

does not render an order void. See Reiss, 118 S.W.3d at 443 (holding that "a court has

jurisdiction to characterize community property - even if it does so incorrectly.") Rather,

the order is voidable and can be attacked by direct appeal. Id. Here, the trial court

incorrectly characterized the award of attorney's fees as being "in the nature of child

support," but in doing so, it was not without appropriate jurisdiction. Because Appellee

did not appeal that order it became final.

3
 Section 158.307(a) provides that an obligor may stay issuance of a judicial writ of withholding by filing a
motion to stay . . . not later than the 10th day after the date the obligor receives notice. It is unclear from
the record when Appellee received notice; however, he does not raise the issue in his brief.

                                                      7
      Appellee relies on In re A.M.W., 313 S.W.3d at 893, in which the appellate court

deleted the characterization of attorney's fees awarded as child support in a

modification proceeding. However, In re A.M.W. was a direct appeal of a modification

order and not a collateral attack. When Appellee failed to appeal the 2005 modification

order to challenge the attorney's fees award characterized as child support, the order

became final and he may not now collaterally challenge that award. Reiss, 118 S.W.3d

at 443. Because the 2005 order was merely voidable and not void, the trial court

abused its discretion in so finding and in terminating the July 14, 2010 writ of

withholding.   Appellant's second issue is sustained.     Our disposition of issue two

pretermits consideration of issues one and three. Tex. R. App. P. 47.1.


                                      Conclusion


      Our conclusion that the 2005 order was voidable renders the July 14, 2010 writ of

withholding valid. See In re M.L.G., No. 04-02-00189-CV, 2002 Tex. App. LEXIS 8404,

at *2-4 (Tex.App.--San Antonio Nov. 27, 2004, pet. denied) (mem. op.). Because the

writ of withholding was valid, the trial court erred in setting it aside over Appellant's

objection. Accordingly, we reverse the trial court's October 4, 2010 Order Terminating

Writ of Withholding and Lien and remand the cause for further proceedings.




                                               Patrick A. Pirtle
                                                   Justice




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