      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00148-CV



                                     Matthew Lee, Appellant

                                                  v.

                                 Angela Lee Kaufman, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
      NO. D-1-FM-09-003978, HONORABLE RHONDA HURLEY, JUDGE PRESIDING



                              MEMORANDUM OPINION


               Appellant Matthew Lee filed a motion to enforce the child support provisions of a

Tennessee divorce decree, seeking a money judgment for the alleged arrearage. The trial court

denied Lee’s enforcement motion and subsequent motion for new trial. On appeal, Lee presents

eight issues in which he complains that (1) the evidence supporting the trial court’s judgment is

against the great weight and preponderance of the evidence; (2) the judgment is not in the best

interests of the children; (3) the judgment is based on an incorrect determination that the motion was

stale; and (4) the trial court erred in failing to award him reasonable attorney’s fees. We will affirm

the trial court’s judgment.
                         FACTUAL AND PROCEDURAL HISTORY

               Matthew Lee and Angela Kaufman divorced in Tennessee in 1999, and both moved

to Austin in 2004. The divorce decree required Kaufman to pay Lee $50 per week in child support

as well as reimburse him for half of the children’s uncovered medical expenses. In 2007 Kaufman

began making $200 per month payments through her bank. Prior to that time, the parties did not

engage in a formal payment system; rather, Lee simply requested money from Kaufman on an

as-needed basis. They did not keep formal records of the requests or payments.

               In July 2009, Kaufman filed in Travis County a petition to modify the divorce decree.

Lee responded and filed a counter-motion to modify, as well as a motion to enforce the child support

provisions of the decree, seeking $19,800 plus interest in arrearage. The parties entered into a

written agreement vis-à-vis the modification of the decree, leaving only Lee’s enforcement

motion pending.

               The trial court heard the enforcement motion in a bench trial. According to Lee, his

requests for child support and medical expenses during the years 1999 to 2007 were by and large

ignored by Kaufman, resulting in a significant arrearage. Kaufman countered that she always paid

what was asked of her, and that the sum of her payments was actually more than the total amount

required under the divorce decree for the time period in question.

               After the hearing, the trial court signed an order denying Lee’s motion. The trial court

subsequently entered findings of facts and conclusions of law and denied Lee’s motion for new trial.




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                                               DISCUSSION

               In his first, second, and fourth issues, Lee contends that the trial court’s denial of his

motion for enforcement is against the great weight and preponderance of the evidence and is

manifestly unjust. A trial court’s order concerning child support arrearage—like most appealable

issues in family law—is reviewed under an abuse-of-discretion standard.               Beck v. Walker,

154 S.W.3d 895, 901 (Tex. App.—Dallas 2005, no pet.). Under that standard, legal and factual

sufficiency are not independent grounds for reversal, but are instead relevant factors in assessing

whether the trial court abused its discretion. Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.

App.—Austin 1997, no pet.); Mai v. Mai, 853 S.W.2d 615, 618 (Tex. App.—Houston [1st Dist.]

1993, no writ). Thus, to determine whether the trial court abused its discretion because the evidence

is factually insufficient to support its decision, we engage in a two-pronged inquiry considering

(1) whether the trial court had factually sufficient evidence upon which to exercise its discretion, and

(2) whether it erred in its application of that discretion. Zeifman v. Michels, 212 S.W.3d 582, 587

(Tex. App.—Austin 2006, pet. denied); In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth

2002, pet. denied). Under the first prong, we apply the traditional factual sufficiency standard and

then, under the second prong, proceed to determine whether the trial court’s excercise of its

discretion was arbitrary or unreasonable. Zeifman, 212 S.W.3d at 587.

               In reviewing the factual sufficiency of the trial court’s order, we weigh and consider

all of the evidence in the record. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). A

court of appeals must not merely substitute its judgment for that of the trier of fact. Golden Eagle

Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Because the trial court issued findings



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of fact, we treat the court’s findings with the same force and dignity as a jury’s verdict on jury

questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Black v. City of

Killeen, 78 S.W.3d 686, 691 (Tex. App.—Austin 2002, pet. denied). When a party challenges the

factual sufficiency of an adverse finding (or failure to find) on an issue on which he has the burden

of proof, he must demonstrate on appeal that the adverse finding is against the great weight and

preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242. Moreover, unchallenged

findings are binding on the appellate court unless the contrary is established as a matter of law. See

McGalliard v. Kuhlman, 722 S.W.2d 694, 696-97 (Tex. 1986). The trial court is the sole judge of

the credibility of the witnesses and the weight to be given their testimony, and may believe one

witness, disbelieve others, and resolve inconsistencies in any witness’s testimony. Id.

               Lee focuses on two provisions of the family code. Section 157.263 provides: “If a

motion for enforcement of child support requests a money judgment for arrearages, the court shall

confirm the amount of arrearages and render one cumulative money judgment.” Tex. Fam. Code

Ann. § 157.263(a) (West 2008). Section 157.008 states:


       An obligor may plead as an affirmative defense in whole or in part to a motion for
       enforcement of child support that the obligee voluntarily relinquished to the obligor
       actual possession and control of a child. The voluntary relinquishment must have
       been for a time period in excess of any court-ordered periods of possession of and
       access to the child and actual support must have been supplied by the obligor.


Id. § 157.008(a)-(b) (West 2008). Lee acknowledges that section 157.263 of the family code

imposes on him the burden of proving the existence of the child support obligation. Id. § 157.263(a).

Once this burden was met, Lee argues, the court had a mandatory duty to confirm the amount of



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arrearage and render a money judgment, subject to any offset for actual support paid, which must be

proven by Kaufman under section 157.008. Id. § 157.008(a)-(b). Lee contends that he clearly met

his burden of proving the existence of a child support obligation, whereas Kaufman presented no

evidence in support of her affirmative defense of actual support paid.

               Kaufman counters that the trial court correctly determined that a court’s duty to

confirm the arrearage under section 157.263 arises only after the movant has first met his burden of

proving the existence not just of a child support obligation but of an arrearage—i.e., the difference

between the amount due under the child support obligation and the amount actually paid. And given

the conflicting nature of the testimony, Kaufman contends that the court did not abuse its discretion

in ruling that Lee failed to carry this burden. We agree.

               A trial court’s duty to confirm the arrearage under section 157.263(a) arises only

if the movant has met his burden of proving the amount of arrearage. See Curtis v. Curtis,

11 S.W.3d 466, 472 (Tex. App.—Tyler 2000, no pet.) (“Under these statutory provisions, [the

movant] had the burden of establishing the arrearage, i.e., the difference between the payments made

by [respondent] and the payments required under the divorce decree.”); Buzbee v. Buzbee,

870 S.W.2d 335, 339 (Tex. App.—Waco 1994, no writ) (“[T]he plaintiff in the action has the burden

of proving the dollar amount of the difference between payments made and the payments required

by the terms of a child-support order.”). Because Lee bore the burden of proof at trial, he must

demonstrate on appeal that the trial court’s ruling that he failed to carry this burden is against the

great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242.




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                Lee’s evidence at trial consisted almost entirely of his own testimony, in which he

claimed Kaufman failed to comply with his requests for child support. However, the trial court

issued an unchallenged finding of fact that called Lee’s credibility into question. Because Kaufman

testified that Lee was lying, this finding is supported by some evidence and thus, is binding.

McGalliard, 722 S.W.2d at 696-97.

                In addition to the above-described problems, Lee’s testimony was directly

controverted by Kaufman’s testimony that she always paid whatever amount Lee requested and that

the sum of her payments was actually more than the total amount required under the divorce decree.

This testimony was corroborated by Lee’s ex-wife Dr. Brenna Gerdelman. Moreover, Kaufman’s

testimony is supported by the fact that, despite considerable email communications over the years

between Lee and Kaufman, Lee provided no written evidence that even hints of a child support

dispute. Finally, Kaufman’s testimony is supported by the fact that Lee never sought to enforce the

divorce decree during the actual periods of alleged non-payment.

                Given this record, the trial court’s failure to find that Kaufman did not meet her child

support obligation is not against the great weight and preponderance of the evidence. And because

this particular finding is determinative, the trial court was well within its discretion in ruling that

Lee failed to carry his burden of proving the existence of an arrearage. We overrule Lee’s first,

second, and fourth appellate issues.

                In issues three and five, Lee contends that the trial court erred in rendering judgment

denying his enforcement motion because the judgment is not in the best interests of the children.

Lee’s brief fails to support this conclusion with arguments, legal authority, or citations to the record.



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Our appellate rules have specific requirements for briefing that require appellants to cite and apply

law that is applicable to the complaint being made, along with appropriate references to the record.

Tex. R. App. P. 38.1(i). By failing to comply with Rule 38, Lee has waived these points of error.

See Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied) (“We

find no argument, authority, or discussion regarding the motion for new trial. Consequently, this

point is waived.”); Harris County Mun. Util. Dist. No. 48 v. Mitchell, 915 S.W.2d 859, 866 (Tex.

App.—Houston [1st Dist.] 1995, writ denied) (“Although appellate courts generally construe the

briefing rules liberally, points of error unsupported by the citation of authority present nothing for

the court to review.”).

               Even if Lee had properly briefed these issues, however, the result would be the same.

Considerations of a child’s best interests are relevant in determining the child support obligation

itself, not in subsequent determinations of whether the obligation has been satisfied. Compare Tex.

Fam. Code Ann. § 154.122 (West 2008) (order of child support conforming to child support

guidelines is presumed to be in best interests of child) and Tex. Fam. Code Ann. § 154.123 (West

2008) (court can deviate from child support guidelines only if guidelines are shown to be not in best

interests of child) with Tex. Fam. Code Ann. §§ 157.001-.426 (West 2008) (no mention of best

interests of child). We overrule Lee’s third and fifth appellate issues.

               In issue eight, Lee contends that the trial court indicated a belief that the motion for

enforcement was stale, and that this belief is, at least in part, the basis for the court’s judgment.

However, a trial court’s indications of belief—like all comments made at the conclusion of a

bench trial—cannot function as a substitute for findings of facts or conclusions of law. In re W.E.R.,



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669 S.W.2d 716, 717 (Tex. 1984). As a result, we are not permitted to consider such free-floating

comments. Id.; see also Nesmith v. Berger, 64 S.W.3d 110, 119 (Tex. App.—Austin 2001, pet.

denied). Because these comments did not make their way into something we can consider—i.e., the

judgment or findings of facts and conclusions of law—we overrule Lee’s eighth appellate issue.

               In issues six and seven, Lee contends that the trial court erred in failing to award him

attorney’s fees. Under the family code, a movant is entitled to recover reasonable attorney’s fees

only if “the court finds that the respondent has failed to make child support payments.” Tex. Fam.

Code Ann. § 157.167(a) (West 2008). Because we have overruled Lee’s substantive arguments

regarding the arrearage, we overrule Lee’s sixth and seventh appellate issues.



                                          CONCLUSION
               The trial court did not abuse its discretion in ruling that Lee failed to meet his burden

of proving the amount of child support arrearage and, therefore, denying his enforcement motion.

We affirm the trial court’s judgment.




                                               J. Woodfin Jones, Chief Justice


Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: August 26, 2011




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