


 
IN THE
TENTH COURT OF APPEALS
 










 
 

No. 10-07-00027-CV
 
In re
Michael Speed
 
 

Original Proceeding
 
 

DISSENTING Opinion





 
In this proceeding we have received a document
from an inmate acting as his own attorney labeled “notice of appeal.”  A
majority of the Court has unilaterally decided that it is not a notice of
appeal but is instead a petition for a writ of mandamus.  Because the majority
has characterized it as a mandamus against a district clerk, they have voted to
dismiss it because we have no jurisdiction to issue a writ against a district
clerk, except to protect our jurisdiction.  But we have not given the
petitioner the opportunity to explain whether he intended an appeal or a
mandamus.  We do not know if Speed has already filed with the trial court a
petition for writ of mandamus against the clerk to compel the clerk to perform
the ministerial duty of filing the original petition and that the trial court
has not already denied it, thus making a direct appeal proper; nor has Speed
been given the opportunity to explain how, what the majority has characterized
as, a petition for writ of mandamus may be necessary to enforce our
jurisdiction.  Until the Clerk sends the fairly standard letter which asks the
author of the document to explain what it is and how the Court has jurisdiction
of it, the Court acts prematurely.  See Tex. R. App. P. 44.3; Hood v. Wal-Mart Stores, Inc.,
No. 05-0902, 2007 Tex. LEXIS 160, 50 Tex. Sup. J. 456 (Tex. Feb. 23, 2006); Higgins
v. Randall County Sheriff’s Office, 193 S.W.3d 898 (Tex. 2006).  I would
send such a letter, giving Speed the opportunity not only to characterize the
document but also to explain how we have jurisdiction to render the relief he
seeks.  Who knows, he may surprise us and have a perfectly proper legal answer
to these important questions.  Dismissal is premature.  I dissent.
 
 
                                                          TOM
GRAY
                                                          Chief
Justice
 
Dissenting opinion
delivered and filed March 14, 2007


 that because Jernigan signed the judgment indicating her approval “as to
form and content” and because her counsel signed the judgment indicating his
approval “as to form,” the judgment cannot be challenged on appeal.
          However,
appellate courts are divided on this issue.  Some courts have held that the
phrase “Approved as to Form and Substance” does not standing alone establish a
consent judgment.  See In re Broussard, 112 S.W.3d 827, 832 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding); Oryx Energy Co. v. Union Natl.
Bank of Tex., 895 S.W.2d 409, 417 (Tex. App.—San Antonio 1995, writ
denied); First Am. Title Ins. Co. v. Adams, 829 S.W.2d 356, 364 (Tex.
App.—Corpus Christi 1992, writ denied).  Other courts differentiate between
this phrase and the phrase “Approved as to Form.”  According to these courts,
the former phrase indicates a consent judgment while the latter does not.  See
Johnson v. Rancho Guadalupe, Inc., 789 S.W.2d 596, 603 (Tex. App.—Texarkana
1990, no writ); Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El
Paso 1990, no writ); Bexar County Crim. Dist. Atty.’s Off. v
Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ);[2]
Allied First Natl. Bank of Mesquite v. Jones, 766 S.W.2d 800, 801 (Tex.
App.—Dallas 1988, no writ); see also Hill v. Bellville Gen. Hosp., 735
S.W.2d 675, 678 (Tex. App.—Houston [1st Dist.] 1987, no writ) (“a signed
approval has the effect of making a judgment a consent judgment.  But in all
cases cited, the language was never less than ‘Approved as to form and
substance.’”).
          Here the
judgment makes no reference to an agreement of the parties regarding the terms
of the judgment.  Cf. Biaza v. Simon, 879 S.W.2d 349, 351 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (“The Court finds that the parties have
agreed and consented to the terms of this Decree.”).  Under these
circumstances, we agree with the observations of the San Antonio Court in Lohse
v. Cheatham.  705 S.W.2d 721 (Tex. App.—San Antonio 1986, writ dism’d).  “Nowhere
in the decree does it recite that the Court is making any disposition according
to an agreement of the parties.  The document contains the signatures of the
parties and their attorneys evidencing their approval of the document as
reflecting the trial court's actions.”  Id. at 725-26; accord Johnson,
789 S.W.2d at 602 (Bleil, J., dissenting).
          The dissent
cites three cases to support its position that Jernigan cannot challenge the
judgment on appeal.  First Natl. Bank of Beeville v. Fojtik, 775 S.W.2d 632,
633 (Tex. 1989) (per curiam); Mailhot v. Mailhot, 124 S.W.3d 775, 777-78
(Tex. App.—Houston [1st Dist.] 2003, no pet.); Morse v. Delgado, 975
S.W.2d 378, 381 (Tex. App.—Waco 1998, no pet.).  However, these cases are
distinguishable.  First National Bank involved plaintiffs who, after
receiving a jury verdict of zero damages, filed a motion for judgment plainly
stating their disagreement with the verdict.[3]  First
Natl. Bank, 775 S.W.2d at 633.  They approved the judgment in question as
to form only.  The Supreme Court recognized the plaintiffs’ “reservation of the
right to complain . . . [as] an appropriate exercise of such a right.”  Id.  However, the Court did not say whether anything different would suffice.
          Mailhot
likewise was a case in which the appealing party requested entry of the
judgment in question.  There, the parties reached a settlement agreement,
dictated the terms of the agreement on the record, and both testified that they
desired the court to render judgment accordingly.  Mailhot, 124 S.W.3d at
777.  This was an agreed judgment which could not have been challenged on
appeal regardless of the inclusion of the phrase “approved as to both form and
substance.”  In fact, it does not appear that the court relied on this phrase
as a basis for its holding.[4]  See
id. at 778 (“Husband has not preserved error to complain of the judgment,
which he ‘approved as to both form and substance.’”). 
          In Morse,
this Court held that counsel’s signature indicating that he did not oppose the
form of the judgment did not make it an agreed judgment.  See Morse, 975
S.W.2d at 381.  We stated that counsel’s signature of approval “did not
represent that he agreed with the substance of the judgment.”  Id.  However, this does not equate to a holding that inclusion of the phrase
“approved as to form and substance” in a judgment with counsel’s (and/or a
party’s) signature makes the judgment an agreed judgment.  Id. 
Therefore, Morse is not inconsistent with our holding here.
          For the
foregoing reasons, we conclude that the judgment in this case is not an “agreed
judgment”
 
Unreasonable Hardship
          Cunningham contends
that the monthly budget which he offered in evidence gave the court sufficient
information to find that a shorter repayment schedule would cause him “to
suffer unreasonable hardship” and that a longer payout is justified in part
because nearly $3,800 of the arrearages arose from unreimbursed medical
expenses which Jernigan did not present to him until the date of the hearing.
          Jernigan’s
issues all concern statutes in the Family Code providing for income withholding
to satisfy child support arrearages, including sections 158.004 and 158.007.  Chapter
158 of the Family Code governs income withholding for child support.  See
Tex. Fam. Code Ann. §§
158.001-158.507 (Vernon 2002 & Supp. 2004-2005).
          Section
158.001 requires income withholding “[i]n a proceeding in which periodic
payments of child support are ordered, modified, or enforced.”  Tex. Fam. Code Ann. § 158.001 (Vernon
2002).  Section 158.002 permits the suspension of income withholding “for good
cause shown or on agreement of the parties.”  Id. § 158.002 (Vernon 2002).
          Section
158.004 provides:
                   If
current support is no longer owed, the court or the Title IV-D agency shall
order that income be withheld for arrearages, including accrued interest as
provided in Chapter 157, in an amount sufficient to discharge those arrearages
in not more than two years.
 
Id. § 158.004 (Vernon 2002).  Section 158.004
applies here because the children the subject of this suit are older than
eighteen years of age and so Cunningham’s duty to pay “current support” has
terminated.[5]  Id. § 154.001(a)(1) (Vernon 2002), § 154.006(a)(4)(A) (Vernon Supp. 2004–2005).
          Trial courts
are generally invested with “broad discretion” to make child support
determinations.  See Hardin v. Hardin, 161 S.W.3d 14, 21 (Tex. App.—Houston [14th Dist.] 2004), appeal dismissed per settlement, 2005 WL 310076 (Tex.
App.—Houston [14th Dist.] Feb. 10, 2005, no pet.) (per curiam) (not designated
for publication);[6] In
re Marriage of Grossnickle, 115 S.W.3d 238, 245 (Tex. App.—Texarkana 2003, no pet.); In re
Z.B.P., 109 S.W.3d 772, 781 (Tex. App.—Fort Worth 2003, no pet.).  However,
a court has no discretion with regard to confirming child support arrearages
proven by an obligee in an enforcement proceeding and reducing those arrearages
to judgment.[7]  See
Tex. Fam. Code Ann. § 157.262
(Vernon 2002); In re S.R.O., 143 S.W.3d 237, 248 (Tex. App.—Waco 2004,
no pet.); In re M.C.R., 55 S.W.3d 104, 108-09 (Tex. App.—San Antonio 2001,
no pet.).
          Nevertheless,
a trial court does have discretion in setting the monthly payment for confirmed
arrearages and in extending the payout term for “a reasonable length of time”
on a finding “that the schedule for
discharging arrearages would cause the obligor, the obligor’s family, or
children for whom support is due from the obligor to suffer unreasonable
hardship.”  See Tex. Fam. Code
Ann. § 158.007 (Vernon 2002); In re M.C.R., 55 S.W.3d at 109; In
re Chambers, 5 S.W.3d 341, 343 (Tex. App.—Texarkana 1999, no pet.); Starck
v. Nelson, 878 S.W.2d 302, 308 (Tex. App.—Corpus Christi 1994, no writ).
          Here, the
parties do not dispute the amount of the arrearages.  Therefore, our review is
limited to the issue of whether the court abused its discretion by permitting
Cunningham to pay off the arrearages over a period which will exceed two
years.  An abuse of discretion in this context occurs when there is not a
sufficient factual basis in the record to support the decision.  See State v. $217,590, 18 S.W.3d 631, 633-34 (Tex. 2000); Holt Tex., Ltd. v. Hale, 144 S.W.3d 592, 595 (Tex. App.—San Antonio 2004, no pet.); Landon
v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 938 (Tex. App.—Austin 1987, no
writ).
          The total
arrearages of $8,768 consist of $5,001 in missed child support payments and
$3,767 in unreimbursed medical expenses.  The parties do not dispute that the
court’s order that these arrearages be paid with interest at $150 per month
will result in a payout period of more than five years.
          Cunningham
presents two arguments to support his position that the court did not abuse its
discretion by granting him an extended payout: (1) his monthly budget provided
the court sufficient information to find that a shorter repayment schedule
would cause him “to suffer unreasonable hardship”; and (2) nearly $3,800 of the
arrearages arose from unreimbursed medical expenses which Jernigan did not
present to him until the date of the hearing.  We begin with the latter
argument.
          Section
158.007 provides a limited basis for extending the payout of arrearages.  The
statute focuses on the financial situation of the obligor and his family—not on
the conduct of the obligee.  See Tex.
Fam. Code Ann. § 158.007.  Thus, we hold that the timing of Jernigan’s
request for reimbursement for medical expenses has no bearing on whether
Cunningham should receive a “hardship extension” under section 158.007.
          For about four
months before the first hearing,[8]
Cunningham had been voluntarily paying $100 per week toward the arrearages.  At
the hearing, Cunningham offered in evidence his monthly budget, showing $433
per month for child support.  Cunningham testified that he was “on a very
tight, tight, tight budget.”  However, the question of “unreasonable hardship”
was not raised in this hearing, and Cunningham did not ask the court to lower
his child support payment.
          Following the
hearing, the court advised the parties by letter that Cunningham would be
required to pay the arrearages at $150 per month.  Jernigan filed a motion to
clarify this ruling because the payout term exceeded the presumptive two-year
period provided by section 158.004.  At the hearing on Jernigan’s motion to
clarify, the parties focused on whether Cunningham would “suffer unreasonable
hardship” under a two-year payout.  See Tex. Fam. Code Ann. § 158.007.
          At this
hearing, Cunningham testified that he had “restructured [his] finances” because
of the court’s letter ruling.  He acknowledged that he had voluntarily paid
$100 per week before the enforcement hearing but explained that his primary
concern with making court-ordered payments in this amount is the possibility of
confinement if his financial circumstances change.
          The
biggest concern I have with the amount of payments is while I was making $100 a
week payments those were voluntary payments in an effort to reduce the debt. 
They didn’t carry with them a six-month jail sentence and according to the
decree haven’t waived any sort of fines if I hit a stump in the road and missed
one.
 
          Cunningham did
not provide any details as to how he had
“restructured [his] finances.”  His testimony suggests that his present
financial circumstances permit him to pay $100 per week but he is concerned
about the consequences of future financial difficulties.  This is simply not an
adequate factual basis to support a finding that requiring Cunningham to pay
the arrearages off in two years will result in an “unreasonable hardship.”
          Because the
record does not provide an adequate factual basis to support the court’s
implied finding of “unreasonable hardship,” we conclude that the court abused
its discretion by permitting Cunningham to pay off his arrearages over a period
of more than two years.  See $217,590, 18 S.W.3d at 633-34; Holt Tex., 144 S.W.3d at 595; Landon, 724 S.W.2d at 938.  Thus, we
sustain Jernigan’s issues.
We
reverse the judgment and remand this cause to the trial court for further
proceedings consistent with this opinion.
 
FELIPE REYNA
Justice
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
(Chief
Justice Gray dissenting)
Reversed and remanded
Opinion delivered and
filed October 12, 2005
[CV06]



[1]
          The term “section” as used
hereinafter refers to a section of the Family Code unless otherwise indicated.
 


[2]
          The San Antonio Court has issued
decisions on both sides of this issue.


[3]
          The plaintiffs’ motion for
judgment stated:
 
                        While
Plaintiffs disagree with the findings of the jury and feel there is a fatal
defect which will support a new trial, in the event the Court is not inclined
to grant a new trial prior to the entry of judgment, Plaintiffs pray the Court
enter the following judgment.  Plaintiffs agree only as to the form of the
judgment but disagree and should not be construed as concurring with the
content and result.
 
First
Natl. Bank of Beeville v. Fojtik,
775 S.W.2d 632, 633 (Tex. 1989) (per curiam). 
            


[4]
          Thus, this portion of the Mailhot
opinion is dictum.  See Lester v. First Am. Bank, 866 S.W.2d 361, 363 (Tex. App.—Waco 1993, writ denied) (“Dictum, which includes expressions of opinion on a
point or issue not necessarily involved in the case, will not create binding precedent
under stare decisis.”).


[5]
          Section 158.003 applies in cases
in which the obligor is paying “current support.”  That section, like section
158.004, provides for a presumptive 2-year payout for arrearages.
 
          (b)  The additional amount to
be withheld for arrearages shall be an amount sufficient to discharge those
arrearages in not more than two years or an additional 20 percent added to the
amount of the current monthly support order, whichever amount will result in
the arrearages being discharged in the least amount of time.
 
Tex. Fam. Code Ann. § 158.003(b) (Vernon 2002).
 


[6]
          The Fourteenth Court of Appeals
expressly stated in the dismissal order that it was not withdrawing its prior opinion
in the case.  See Hardin v. Hardin, No. 14-03-00342-CV, 2005 WL 310076
at *1 (Tex. App.—Houston [14th Dist.] Feb. 10, 2005, no pet.) (per curiam) (not
designated for publication).
 


[7]
          Nor does a court have discretion
in requiring the obligor to pay statutory interest on confirmed arrearages.  See
In re M.C.R., 55 S.W.3d 104, 108-09 (Tex. App.—San Antonio 2001, no pet.). 
Under limited circumstances however, a court may reduce the amount of
arrearages assigned to a Title IV-D agency.  See Tex. Fam. Code Ann. § 157.262(e) (Vernon 2002).


[8]
          Jernigan filed her motion to
enforce in February 2004.  The court conducted the first hearing on this motion
in June.  Shortly thereafter, the court mailed a letter to the parties
informing them that Cunningham would be ordered to make monthly payments of
$150 toward the child support arrearages.  Jernigan filed a motion to clarify
this ruling because it would extend the arrearages payout beyond 2 years.  The
court heard Jernigan’s motion to clarify in September.


