                        COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                               NO. 02-11-00283-CV


IN THE INTEREST OF W.M.R., A
CHILD




                                     ----------

            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

      Appellant M.R. (Father) appeals the trial court’s order modifying Father’s

child support obligation.    We modify the trial court’s order and affirm it as

modified.




1
See Tex. R. App. P. 47.4.
                                   Background Facts

      Father and J.M.R. (Mother) divorced on October 3, 2000. The only child of

the marriage was W.M.R., who was nine years old. The final divorce decree

stated:

            The court finds that [W.M.R.] suffers from muscular dystrophy
      and will be incapable of being self supporting after the age of
      eighteen.

            IT IS ORDERED AND DECREED that [Father] is obligated to
      pay and, shall pay to [Mother] child support of $1500.00 per month
      for [W.M.R.] in monthly installments . . . until the date of the earliest
      occurrence of one of the following events:

             a. the child dies;

             b. further order modifying this child support;

           c. $1,000 monthly payments are commenced to [W.M.R.]
      pursuant to New York Life Insurance Company annuity policy.

            Upon the commencement of the $1,000.00 monthly annuity
      payments set forth in paragraph c above[,] the support obligation of
      [Father] shall be reduced to $500.00 per month . . . and continuing
      thereafter until the first of the contingencies set forth in paragraph a
      and b above occurs.

Father’s employer was ordered to withhold child support from Father’s earnings.

“Earnings” was defined as “compensation paid or payable to [Father] for personal

services, whether called wages, salary, commission, bonus, or otherwise.”

Father was also required to provide and maintain medical insurance coverage for

W.M.R. and to pay for fifty percent of all health care expenses not covered by

insurance.




                                          2
      On August 16, 2001, the trial court modified the child support provisions of

the divorce decree. The 2001 order states,

      The prior Order of this Court entitled DECREE OF DIVORCE[,]
      which was signed by the Court on October 3, 2000[,] is hereby
      modified as follows:

      . . . [Father] shall pay to [Mother] child support of $870.75 each
      month . . . until the first month following the date of the earliest
      occurrence of one of the events specified below:

            (1) the child dies;

            (2) further order modifying this child support;

            (3) $1,000.00 monthly payments are commenced to [W.M.R.]
            pursuant to New York Life Ins. Co. annuity policy.

      Upon the commencement of the $1,000.00 monthly annuity
      payments set forth above the support obligation of [Father] shall be
      reduced by such sum commencing the first day of the first month
      following the commencement of the annuity payments.

The order also stated that Father should pay 20% “of the net after taxes of any

bonus he receives from his employment,” and required Father to deliver to

Mother a copy of the bonus check.

      The new order did not change Father’s duties regarding medical insurance

or uncovered medical expenses.

      When W.M.R. turned eighteen in October, 2008, Father stopped paying

child support. On September 22, 2010, Mother filed a “Petition to Enforce Child

Support Order and to Modify Parent-Child Relationship.” Mother alleged that

Father failed to pay any child support from his employment bonuses, and

because of W.M.R.’s disability, she asked the court to modify the child support


                                         3
order to extend child support payments “for an indefinite period” and to require

Father to pay, “as additional support, a portion of the uninsured expenses for

medical supplies, equipment, in-home care, over-the-counter medications, and

other related expenses, as well as repairs and maintenance on the wheelchair-

equipped van and replacement costs, if necessary.” She sought an arrearage for

the unpaid child support since W.M.R.’s eighteenth birthday. Father responded

to Mother’s motion, arguing that the order was incapable of enforcement because

it is ambiguous, and that the trial court did not have jurisdiction over the case.

      After a hearing, the trial court entered an order on July 7, 2011, finding that

Father owed Mother $38,158.73 in unpaid child support. The trial court ordered

Father to pay the arrearage plus $1,465.50 a month for W.M.R.’s needs, fifty

percent of W.M.R.’s medical expenses, and fifty percent of “all expenses to

replace the wheel-chair equipped van.” Father then filed this appeal.

                                    Discussion

1. Jurisdiction

      In Father’s first three issues, he challenges the trial court’s jurisdiction to

make the 2011 modification. A court acquires continuing, exclusive jurisdiction in

suits affecting the parent-child relationship by the rendition of a final order. Tex.

Fam. Code Ann. § 155.001(a) (West 2008). The court retains its jurisdiction until

(1) an order of adoption is rendered; (2) the parents have remarried each other;

or (3) another court assumes jurisdiction by rendering a final order based on

incorrect information that there was no court of continuing, exclusive jurisdiction.


                                          4
Id. §§ 155.002, 155.004(a) (West 2008).        A court with continuing, exclusive

jurisdiction may modify its prior order regarding child support.      Id. § 155.003

(West 2008). A suit for support for a minor or adult disabled child may be filed in

the court of continuing, exclusive jurisdiction as a suit for a modification.     Id.

§ 154.305(c) (West 2008).

      In this case, the court acquired jurisdiction in 2000 with the rendition of the

final divorce decree. Father argues that his child support obligation ended when

W.M.R. turned eighteen for two reasons.         First, he argues that the annuity

payment “zeroed out” his child support obligation, thereby ending it. The 2001

order states that once the annuity payments commenced, Father’s obligation

“shall be reduced by” the amount of the annuity payments. Because Father’s

obligation was for less than the amount of the annuity payments, Father argues

his obligation ended when the annuity payment began.            Father’s argument

ignores the language of the 2001 order which states that Father’s obligation

continues until W.M.R.’s death or further order by the trial court.             The

commencement of the annuity payments does not extinguish Father’s obligation,

it merely reduces it.

      Second, Father argues that the trial court did not make the required

findings to continue child support beyond W.M.R.’s eighteenth birthday. Section

154.302 of the family code states:

      (a) The court may order either or both parents to provide for the
      support of a child for an indefinite period and may determine the
      rights and duties of the parents if the court finds that:


                                         5
            (1) the child, whether institutionalized or not, requires
            substantial care and personal supervision because of a mental
            or physical disability and will not be capable of self-support;
            and

            (2) the disability exists, or the cause of the disability is known
            to exist, on or before the 18th birthday of the child.

Tex. Fam. Code Ann. § 154.302 (West 2008). Thus, the court cannot order

continued child support unless it finds that the child requires substantial care and

personal supervision and will not be capable of self-support. See id. Father

argues first that the 2001 agreed order “completely superseded all prior orders

regarding child support.”     Because the agreed order contains no findings

regarding W.M.R.’s disability, he continues, it is insufficient to support the trial

court’s order of support.   Second, he argues that the findings in the original

divorce decree that W.M.R. “suffers from muscular dystrophy and will be

incapable of being self[-]supporting after the age of eighteen” are insufficient

under the statute.    Father also argues that we may not imply the findings

necessary to support the judgment.

      In support of Father’s argument that the agreed order “completely

superseded” the divorce decree, he cites In re Clark for the proposition that “[a]n

order modifying a prior child custody or support order necessarily supersedes the

prior order . . . . Thus, an order modifying a prior child support order may . . .

‘terminate’ the obligation imposed by the prior order . . . .” No. 10-03-00037-CV,

2004 WL 1632768, at *5 (Tex. App.—Waco July 21, 2004, no pet.). Father’s use



                                         6
of ellipses contorts the original statement.       Clark actually says “An order

modifying a prior child custody or support order necessarily supercedes the prior

order to the extent a modification is ordered. Thus, an order modifying a prior

child support order may or may not ‘terminate’ the obligation imposed by the prior

order, depending on the circumstances.” Id. (emphasis added); see also Office

of Attorney Gen. of Tex. v. Wilson, 24 S.W.3d 902, 906 (Tex. App.—Dallas 2000,

no pet.) (holding that a modification order that changed the identity of the payee

of child support and did not change any other terms of paying child support left

those unaddressed terms “unchanged” and that the two orders read together

“specifically and unambiguously state the terms of Wilson’s child support

obligation”). The only change to Father’s child support obligations was a

reduction of his monthly payments from $1,500 to $870.75. The 2001 agreed

order made no modification to the findings that W.M.R. suffers from muscular

dystrophy and will be incapable of supporting himself after the age of eighteen.

Thus, those findings remain even after the changes imposed by the agreed

order.

         Turning to whether the trial court’s findings are sufficient to support an

order of child support beyond W.M.R.’s eighteenth birthday, we note that the

statute requires the trial court to find that W.M.R. (1) requires substantial care

and personal supervision because of a mental or physical disability and (2) will

not be capable of self-support. See Tex. Fam. Code Ann. § 154.302(a)(1) (West

2008).     The divorce decree includes the finding that W.M.R. would not be


                                          7
capable of self-support but does not explicitly state that W.M.R. requires

substantial care and personal supervision. Father argues that the finding that

W.M.R. requires substantial care and personal supervision must be stated in the

order and that we cannot imply the finding.

      Father did not request findings pursuant to rule 296 or rule 298 of the rules

of civil procedure, and there were no separately entered findings of fact or

conclusions of law after the divorce decree or any of the modification orders.

See Tex. R. Civ. P. 296, 298. Father acknowledged in his brief that while a trial

court’s findings should not be recited in a judgment, when they are, they are

given “probative value.” See Tex. R. Civ. P. 299a; Gonzalez v. Razi, 338 S.W.3d

167, 175 (Tex. App.—Houston [1st Dist.] 2011, pet. denied.); Hill v. Hill, 971

S.W.2d 153, 157 (Tex. App.—Amarillo 1998, no pet.).

      Father argues that rule 299 of the rules of civil procedure prohibit us from

implying a finding by the trial court that W.M.R. requires substantial care and

personal supervision.    Father argues that “when the Court makes express

findings in support of its judgment, it is improper to imply other findings

necessary to support the judgment.” However, the cases Father cites in support

do not stand for this proposition. See In re C.A.B., 289 S.W.3d 874, 881 (Tex.

App.—Houston [14th Dist.] 2009, no pet.); E. F. Hutton & Co., v. Fox, 518

S.W.2d 849, 856 (Tex. Civ. App.—Dallas 1974, writ ref’d n.r.e.).

All of these cases reference rule 299, which states,




                                        8
            The judgment may not be supported upon appeal by a
      presumed finding upon any ground of recovery or defense, no
      element of which has been included in the findings of fact; but when
      one or more elements thereof have been found by the trial court,
      omitted unrequested elements, when supported by evidence, will be
      supplied by presumption in support of the judgment.

Tex. R. Civ. P. 299. The cases that Father cites all involve a ground of recovery

or defense in which no elements were found by the trial court. See C.A.B., 289

S.W.3d at 881 (holding that it could not imply termination on one ground when no

findings were made on that ground and termination was expressly granted on

another ground); E.F. Hutton, 518 S.W.2d at 856 (noting that the issue was

“whether the court has made findings of any elements of contract or promissory

estoppel, so that ‘omitted unrequested elements’ may be supported by

presumption under the provisions of Rule 299”, and holding that none of the trial

court’s findings established “any element of either of these grounds of recovery”).

      In this case, the trial court found that W.M.R. will not be capable of self-

support after the age of eighteen.     Inability to self-support is one of the two

elements needed to support child support beyond W.M.R.’s eighteenth birthday.

Therefore, the omitted element of requiring substantial care and personal

supervision may, under rule 299, be supplied by presumption if it is supported by

the evidence. See Tex. R. Civ. P. 299.

      Although we do not have the record of the original divorce hearing, Father

does not contend that W.M.R.’s health has improved since that time, and the

evidence at the last hearing supports the implied finding that W.M.R. continues to



                                         9
require substantial care and personal supervision. As stated in the final divorce

decree, W.M.R. has muscular dystrophy. Mother testified that W.M.R.’s disease

is “incurable, and it is progressive,” and that people with muscular dystrophy

“eventually die because of heart and lung failure. But before that happens, they

are essentially paralyzed because their muscles have completely broken down.”

W.M.R.’s heart and lungs are impaired and he cannot lift his arms.          Mother

testified that she goes home every day at lunch to check on W.M.R. and that she

has to leave work unexpectedly “usually once or twice a week” to help him with

something he needs. She testified that she has to take him to the doctor and

pick up his medications. Mother testified that W.M.R. “is not able to feed or dress

himself or get himself a drink or go to the toilet alone or bathe himself or any of

those things.” Every morning, Mother dresses W.M.R., washes his face, brushes

his teeth, shaves him, and gets him into his wheelchair. She testified that it takes

her about an hour and a half to get him ready for bed, because she has to bathe

him, take care of his toiletries, give him his medications and breathing therapy,

and get him into bed. Mother wakes up every two hours to roll W.M.R. over.

She testified that W.M.R. can only be alone for about four hours before he needs

assistance. Mother has to get someone to stay with him when she is away.

      Although W.M.R. does not need constant supervision, the testimony at the

hearing was sufficient to support a finding that he requires substantial care and

frequent personal supervision. Thus, because the evidence supports the omitted

element that W.M.R. requires substantial care and personal supervision, we may


                                        10
supply that element under rule 299. Thus, the trial court’s findings are sufficient

to support an order of child support beyond W.M.R.’s eighteenth birthday. We

overrule Father’s first, second, and third issues.

2. Bonus

      In Father’s fourth and fifth issues, he argues that the trial court erred in

calculating Father’s arrearage to include commissions he earned.        The 2011

order included a finding that Father failed to pay $38,158.73 in child support.

Because the annuity payments covered all of Father’s child support obligation

after W.M.R.’s eighteenth birthday, this amount could only be based on that part

of the 2001 order which ordered additional child support in “a sum equal to 20%

of the net after taxes of any bonus [Father] receive[d] from his employment.”2

Mother argues that the term “bonus” includes payments Father received that

were labeled by his employer as commissions.3

      The 2001 modification order requires Father to pay 20% “of the net after

taxes of any bonus he receives from his employment,” and required Father to

deliver to Mother a copy of the bonus check. The modification order was an

agreed judgment, and as such, should be construed in the same manner as a

contract. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex. 2000). If

      2
       Mother does not dispute that the arrearage was calculated by including
Father’s commissions.
      3
        Mother testified at the hearing that she was asking the trial court to find
that “the terms bonus and commission are the same for the purposes of [the
2001 modification] order.”


                                         11
the modification order is so worded that it can be given a certain or definite legal

meaning or interpretation, then it is not ambiguous and the court will construe the

contract as a matter of law. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.

1983).

      Father testified that he was paid bonuses from previous employers, but he

has not received any bonuses with his current employer. At the time of the 2001

modification, he received bonuses based upon certain criteria such as “[s]ales

volume, management objectives, [and] strategic objectives.” He claims that he

made his salary plus bonuses but did not receive commissions.

      In 2004, Father accepted his current position. In his current job, Father

receives a base salary plus commission which is based “[s]trictly [on] sales

volume.”    He testified that his “regular pay” is his base salary plus the

commissions he receives. He also testified that his understanding of the word

bonus as used in the order is “a recognized achievement of a particular goal.”

      Mother testified that during their marriage, Father received his base salary

plus bonuses that he received “several times throughout the year.”           At the

hearing, she referred to the commissions that he received in his current job as

bonuses because “[t]hat’s how he’s always described it to me.” Mother argues

that her testimony regarding the parties’ understanding of the term “bonus”

demonstrates that they both understood the term in the 2001 modification order

to include commissions. However, Father testified that his payment in his current

position is structured differently than it was in his previous positions. Mother did


                                        12
not testify that after changing jobs to his current position that he continued to

refer to “bonuses” that he received. Mother’s testimony only demonstrates her

understanding of bonuses in Father’s previous payment structures, which were

structured as salary plus bonuses “throughout the year.”         Father’s current

payment structure is salary plus commissions that were included in his regular

wage checks. The 2001 modification order stated that Father was “ordered to

deliver to [Mother] within ten days of his receipt of any bonus check a copy of

such check.” The order did not state that Father was to deliver a copy of every

paycheck he received each month, implying that the bonuses that Father was to

pay 20% to Mother were occasional payments made in addition to his regular

wages.

      Father’s testimony explaining his different payment structures as well as

the language of the order itself support the dictionary definition of bonus and

commission and their common, ordinary usage. Black’s Law Dictionary defines

bonus as “a premium paid in addition to what is due or expected.” Black’s Law

Dictionary 206 (9th ed. 2009). In the context of employment compensation, a

bonus is “paid for services or on consideration in addition to or in excess of the

compensation that would ordinarily be given.” Id.; see also Webster’s Third New

International Dictionary 252 (3d ed. 2002) (defining bonus as “something given

or received that is over and above what is expected” and “money or an

equivalent given in addition to the usual compensation”). A commission is “a fee

paid to an agent or employee for a particular transaction, usu[ally] as a


                                       13
percentage of the money received from the transaction.” Black’s Law Dictionary

306; see also Webster’s Third New International Dictionary 457 (defining

commission as “a fee paid to an agent or employee for transacting a piece of

business or performing a service,” especially “a percentage of the money

received in a sale or other transaction paid to the agent responsible for the

business”).   That portion of Father’s regular monthly paycheck labeled as a

commission is not a bonus as the term is used in the 2001 modification order.

The words commission and bonus are not interchangeable. The original divorce

decree distinguished bonuses and commissions, noting that Father’s employer

was to withhold child support from Father’s “earnings,” which included “wages,

salary, commission, bonus, or otherwise.” Had the parties intended Father to

pay 20% of his commissions, they could have used the phrase in their agreed

order, like they had done in the past, and required him to pay 20% of his

commissions or bonuses.

      The 2001 modification order did not require Father to give Mother 20% of

his commissions. Further, because the trial court did not enter a modification

order after the hearing in 2011, any implied substantive change it made to add

the word commission to the 2001 order is error. See Escobar v. Escobar, 711

S.W.2d 230, 231–32 (Tex. 1986) (“The court can only correct the entry of a final

written judgment that incorrectly states the judgment actually rendered. Thus,

even if the court renders incorrectly, it cannot alter a written judgment which

precisely reflects the incorrect rendition.”).   The trial court therefore erred by


                                         14
calculating Father’s arrearage to include commissions he earned. We sustain

Father’s fourth and fifth issues.

3. Arrearage

      In Father’s sixth issue, he argues that the trial court erred in ordering

Father to pay an arrearage because the 2001 order is not sufficiently definite to

support the judgment. Specifically, he argues that there is no start date for the

payments, that the phrase “net after taxes” is too vague, that there is no firm due

date for payments, and that the order “does not specifically order [Father] to pay

any portion of future compensation, nor does it state that it applies to subsequent

employers.”

      To be enforceable by a money judgment, a child support obligation must

be “sufficiently definite and certain.”   See Wilson, 24 S.W.3d at 905 (citing

Villanueva v. Office of the Attorney Gen., 935 S.W.2d 953, 955 (Tex. App.—San

Antonio 1996, writ denied), and Gross v. Gross, 808 S.W.2d 215, 218–19 (Tex.

App.—Houston [14th Dist.] 1991, no writ)). To be enforceable by contempt, a

child support obligation must “set forth the terms of compliance in clear, specific

and unambiguous terms so that the person charged with obeying the decree will

readily know exactly what duties and obligations are imposed upon him.” Id. at

906 (quoting Ex parte Acker, 949 S.W.2d 314, 317 (Tex. 1997)).

      Regarding the start date, Father cites to Ex parte Whitehead, 908 S.W.2d

68, 71 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding). Whitehead is

inapposite. In Whitehead, a child support order was held to be unenforceable by


                                          15
contempt for a number of reasons, including that “the divorce decree did not

order [the father] to pay any amount of money to anybody at anytime for

insurance” but instead just ordered the father “to keep and maintain health

insurance on the children ‘at all times.’” Id. The appellate court specifically noted

that its opinion was “concerned only with the legality of the contempt findings”

and did not affect the trial court’s money judgment in favor of the mother, which

included the unpaid health insurance. Id. at 71 n.3. Father cites to no other case

supporting his proposition that a child support order is insufficiently definite to

support an arrearage because it does not set a start date for periodic payments.

Father was paid bonuses only occasionally, and there was no evidence that he

or anyone else could foresee with any accuracy when those bonuses would be

paid to him. It is clear from the order that any future bonus payment Father was

to receive, starting from the date of the order, he was to pay 20% “net after

taxes” to Mother. Further, Father conceded that he understood the order well

enough to know that the only bonus he received was subject to a 20% payment

to Mother.

      Father cites In re T.A.N., No. 07-08-0483-CV, 2010 WL 58334, at *4 (Tex.

App.—Amarillo, no pet.) (mem. op.), for his argument that a child support

obligation that requires a parent to pay a percentage of his net income is too

indefinite to support a judgment of arrearages. In T.A.N., the father was ordered

to pay 20 percent of his net income, calculated as of his wages on July 1, 2008.

Id. The parties agreed, however, that the father never provided evidence of his


                                         16
wages as of that date, and the calculation had not been done. Id. In this case,

the calculation was easily accomplished. Father testified that he received a $500

bonus and that Mother was entitled to 20% of his net income from that bonus

after taxes. Mother offered into evidence Father’s paystubs from 2003, including

the paystub for the $500 bonus. The paystub noted that $173.25 was deducted

for taxes, leaving Father a net bonus of $326.75. 20% of $326.75 is $65.35, a

calculation Father made in his brief on appeal and which he agrees he owes to

Mother. The phrase “net after taxes” is not so indefinite or ambiguous that a

judgment for an arrearage computed using the phrase cannot stand. See Dicker

v. Dicker, 434 S.W.2d 707, 712 (Tex. Civ. App.—Fort Worth 1968, writ ref’d

n.r.e.) (noting that a property settlement between a husband and wife which

orders the husband to “pay to the Wife the sum of One Hundred Thousand

($100,000.00[)] Dollars, net after taxes, if any” is “clear and it means what it

says”).

        Contrary to Father’s argument that there is no firm due date for payments,

the 2001 order expressly states that Father “is ordered to deliver to [Mother]

within ten days of his receipt of any bonus check . . . his personal check for such

20%.”     A ten-day timeframe to make payment to Mother is sufficiently clear,

definite, and unambiguous to support a money judgment. Father also argues the

order “does not specifically order [him] to pay any portion of future income, nor

does it state that it applies to subsequent employers.” The order requires him to

pay 20% “net after taxes” of any bonus he receives; it is an order to pay an


                                        17
amount that is a clearly defined portion of his income. Finally, the order states

that Father must make the 20% payment to Mother any time he receives “any

bonus . . . from his employment.” This too is clear enough that Father should

“readily know exactly what duties and obligations are imposed upon him.”

Wilson, 24 S.W.3d at 906. We therefore hold that the 2001 order is not so

indefinite that it cannot support a judgment for arrearages.         See Davis v.

Mangan, No. 14-04-00650-CV, 2005 WL 1692048, at *7 (Tex. App.—Houston

[14th Dist.] July 21, 2005, no pet.) (mem. op.) (holding that an order requiring the

father to “pay 50% of all health care expenses not paid by insurance that are

incurred by or on behalf of the parties’ children” clearly contemplated that the

mother would notify the father when such expenses were incurred and that it was

sufficiently definite and certain to permit its enforcement); In re Watson, No. 07-

00-00162-CV, 2000 WL 1179795, at *4 (Tex. App.—Amarillo Aug. 21, 2000, no

pet.) (not designated for publication) (“[A]n order imposing medical support

obligations, including health insurance, need not state a specific dollar amount

for such obligations to be enforceable.”). We overrule Father’s sixth issue.

4. Enforcement

      In his seventh issue, Father argues that because the 2001 order did not

expressly state that it was enforceable by contract, Mother cannot enforce the

order for any alleged child support obligations after W.M.R.’s eighteenth birthday.

The family code provides, “To promote the amicable settlement of disputes

between the parties to a suit, the parties may enter into a written agreement


                                        18
containing provisions for support of the child and for modification of the

agreement.” Tex. Fam. Code. Ann. § 154.124(a) (West 2008). However, the

agreement is not enforceable as a contract unless the order expressly states so.

Id. § 154.124(c); Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996); Elfeldt v.

Elfeldt, 730 S.W.2d 657, 658 (Tex. 1987).

      Father stated in his motion for new trial that Mother “did not sue for breach

of contract.”   His position now—that Mother is suing on a contract—is an

opposite and inconsistent position to the one he took in the trial court.     See

Brooks v. Brooks, 257 S.W.3d 418, 424 (Tex. App.—Fort Worth 2008, pet.

denied) (holding that it would be unconscionable to allow husband to enforce a

mediated settlement agreement after taking “the clearly inconsistent position” at

trial that it was unenforceable). Further, section 154.124 does not apply to cases

concerning disabled children. See Elfeldt, 730 S.W.2d at 658 (noting that the

“suit was brought as a contract action because a court of continuing jurisdiction

under the Family Code has no authority to order or to enforce support for a non-

disabled child over eighteen”) (emphasis added). Our opinion in In re K.M.J., No.

02–09–00303–CV, 2011 WL 3525439, at *6 (Tex. App.—Fort Worth July 28,

2011, no pet.) (mem. op.), to which Father cites, holds no differently. In K.M.J.,

we applied the exception for extended child support payments beyond age

eighteen to section 154.001, not section 154.302, the section under which the

trial court in this case had the authority to order W.M.R.’s support. See id.; see

also Tex. Fam. Code Ann. §§ 154.001, 154.302 (West 2008); Bruni, 924 S.W.2d


                                        19
at 367 (noting specifically that none of the children in that case were disabled);

Lambourn v. Lambourn, 787 S.W.2d 431, 432 (Tex. App.—Houston [14th Dist.]

1990, writ denied) (noting that section 154.124 (formerly section 14.06(d))

“clearly requires that the parties to an agreement concerning the support of a

non-disabled child over eighteen must expressly provide in the order

incorporating the agreement that its terms are enforceable as contract terms for

that remedy to be available”) (emphasis added). We overrule Father’s seventh

issue.

5. Confirmation

         In Father’s eighth issue, he argues that a trial court may not confirm an

arrearage when the support order does not contain a specific dollar amount. The

family code states, “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 Supp. 2012). Father does not cite to any case law for his

proposition that an arrearage based on a percentage cannot be confirmed. The

statute does not require a child support order to state a specific money amount in

order to be confirmed under section 157.263, nor have we found any cases in

which a confirmation was denied on this basis. On the contrary, we have found a

number of cases in which support payments calculated as a percentage were

required to be reduced to a cumulative money judgment. See, e.g., In re J.I.M.,

281 S.W.3d 504, 505, 508 (Tex. App.—El Paso 2008, pet. denied) (holding that


                                         20
the trial court was required under section 157.263 to confirm the amount of

arrearages and render an cumulative money judgment when the divorce decree

ordered that child support payments be calculated as a percentage of father’s

salary and that additional child support would be “twenty percent of the net

amount of bonuses received by him from his employer”); Davis, 2005 WL

1692048, at *1, *7 (upholding a cumulative money judgment under section

157.263 when the underlying order required father to pay 50% of uninsured

medical costs); In re S.R.O., 143 S.W.3d 237, 248 (Tex. App.—Waco 2004, no

pet.) (concluding that the trial court erred in not including in the cumulative

money judgment for arrearages fifty percent of the unreimbursed health care

expenses the children had incurred). We fail to see how, as Father argues, the

court is going beyond acting as a “mere scrivener” when it applies a simple

mathematical formula to determine a percentage of a proven amount. See Curtis

v. Curtis, 11 S.W.3d 466, 471 (Tex. App.—Tyler 2000, no pet.) (noting that under

section 157.262 “the trial court acts as ‘a mere scrivener’ who mechanically

tallies the amount of arrearages”) (quoting Lewis v. Lewis, 853 S.W.2d 850, 854

(Tex. App.—Houston [14th Dist.] 1993, no writ)). We overrule Father’s eighth

issue.




                                      21
6. Sufficiency of the evidence

      In Father’s ninth issue, he challenges the sufficiency of the evidence

supporting the arrearage amount. Because we sustained Father’s fourth and fifth

issues, we do not need to reach his ninth issue to the extent he complains of the

arrearage based on his commissions. See Tex. R. App. P. 47.1. As to the

arrearage based on his bonus, Father conceded that he received the $500 bonus

and that he owes Mother 20% of that bonus after taxes. We therefore overrule

Father’s ninth issue as to the $65.35 in arrearages.

7. Discretionary order

      In Father’s tenth issue, he argues that the trial court abused its discretion

by allowing Mother to purchase a van specially equipped to transport W.M.R.’s

wheelchair and by requiring Father to pay half of those expenses. Specifically,

Father complains that there is no reasonableness requirement or some other

mechanism that limits Mother’s ability to incur expenses for which Father would

be liable.

      Father offers no cases to support this argument.          However, there are

numerous cases in which the court upheld a child support order requiring one

parent to pay for unquantifiable expenses. See K.M.J., 2011 WL 3525439, at *1

(“The agreed order also required James to pay half of all medical expenses and

half of all costs associated with school activities.”); In re A.C.B., 302 S.W.3d 560,

562 (Tex. App.—Amarillo 2009, no pet.) (holding that evidence supported trial

court’s order requiring father to reimburse mother for half of private school tuition,


                                         22
fees, and extracurricular activities); Nordstrom v. Nordstrom, 965 S.W.2d 575,

577 (Tex. App.—Houston [1st Dist.] 1997), cert. denied, 524 U.S. 1142, 119

S. Ct. 1034 (1999)) (ordering Father to pay half of any necessary tutoring costs

and half of all uninsured medical costs); In Interest of J.M. & G.M., 585 S.W.2d

854, 855 (Tex. Civ. App.—San Antonio 1979, no writ) (noting that the divorce

decree ordered the father to pay for a college education for each of the children;

to remain responsible for one-half of their medical and dental expenses; and to

pay all tuition costs).

       Additionally, we note that Mother must pay the other half of the van-related

expenses, and the evidence was that her income is less than Father’s income.

Her ability to pay her share of the expenses is certainly one limitation on the

amount she will incur. Considering that there is no requirement that a court may

only order support in a definite amount, and considering that Mother is restrained

by her ability to pay the same amount of expenses that Father is required to pay,

we cannot say that the trial court abused its discretion by ordering Father to pay

half of any van-related expenses that Mother incurs.       See In re Marriage of

Grossnickle, 115 S.W.3d 238, 248 (Tex. App.—Texarkana 2003, no pet.)

(holding that, although not enforceable by contempt, trial court’s order that father

pay one half of daughter’s private school tuition, which “ha[d] the potential to

change from year to year,” was not an abuse of discretion). We overrule Father’s

tenth issue.




                                        23
8. Agreed Offsets

      In his eleventh issue, Father argues that the trial court did not credit Father

with the agreed offset of $1,000 for the annuity payments W.M.R. receives. First,

there is no evidence that the trial court did not credit Father for the offset. The

trial court’s award matches exactly the amount Mother calculated in the summary

she provided to the court. Mother’s summary credits Father with $1,000 a month

beginning at W.M.R.’s eighteenth birthday.       Secondly, we sustained Father’s

issue regarding the arrearage based on his commissions and reformed the

cumulative money judgment to $65.35 (20% of Father’s $500 bonus, net after

taxes), which was not subject to a reduction. We therefore overrule Father’s

eleventh issue.

9. Trial amendment

      In Father’s twelfth issue, he argues that the trial court abused its discretion

by not permitting his trial amendment, which he argues was necessary to

comport the pleadings with the proof adduced at trial.          Specifically, Father

focuses on his request to include an affirmative defense that Mother’s claim is

time barred by a four-year statute of limitations. The trial court held its hearing

on February 7, 2011, March 10, 2011, and May 13, 2011. Father filed his motion

for leave to amend his pleadings on June 29, 2011.            Texas Rule of Civil

Procedure 63 states that parties may amend their pleadings after trial by leave of

the court “unless there is a showing that such filing will operate as a surprise to

the opposite party.”   Tex. R. Civ. P. 63.     The decision to allow or deny the


                                        24
amendment rests with the sound discretion of the trial court, and the trial court’s

decision will not be overturned unless it constitutes a clear abuse of discretion.

G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 542 (Tex.

App.—Dallas 2005, no pet.).

      A trial amendment that asserts a new cause of action or defense is

“prejudicial on its face.” Hakemy Bros., Ltd. v. State Bank & Trust Co., Dallas,

189 S.W.3d 920, 924 (Tex. App.—Dallas 2006, pet. denied) (citing State Bar v.

Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994) (per curiam)). The party opposing

the amendment generally has the burden to show prejudice or surprise, but the

trial court may conclude the amendment is on its face calculated to surprise or

that the amendment would reshape the cause of action, prejudicing the opposing

party and unnecessarily delaying the trial. Id. at 924, 940; see Chapin & Chapin,

Inc. v. Tex. Sand & Gravel Co., Inc., 844 S.W.2d 664, 665 (Tex. 1992); Hardin v.

Hardin, 597 S.W.2d 347, 349 (Tex. 1980). In that situation, the opposing party’s

objection is sufficient to show surprise. Greenhalgh v. Serv. Lloyds Ins. Co., 787

S.W.2d 938, 940 n.3 (Tex. 1990).

      To support his argument that the amendment would have conformed the

pleadings to the evidence presented at trial by Mother, thereby creating no

surprise or prejudice, Father cites to Krishnan v. Ramirez, 42 S.W.3d 205, 225

(Tex. App.—Corpus Christi 2001, pet denied). In Krishnan, the appellate court

upheld the trial court’s decision to allow a post-trial amendment because the

“appellant did not make any showing to the trial court that her settlement strategy


                                        25
or her trial posture would have changed knowing that she risked full range

exposure at trial. She has not shown evidence of surprise or prejudice.” Id. In

Krishnan, the appellant contended that she was prejudiced because “the

amended pleadings exposed her to a full claim instead of the two-thirds claim

and her settlement strategy would have been greatly influenced by knowing that

she risked full range exposure at trial.”    Id.   Krishnan, however, is not fully

supportive of Father’s argument for two reasons. First, the appellee in Krishnan

sought to amend his pleadings during the trial, while here Father sought an

amendment forty-seven days after three hearings were concluded.             See id.

Second, in Krishnan the appellee was not seeking to add a new cause of action

or defense while here, Father has sought to add numerous new causes of action.

See id.

      Father also argues that Mother only offered general, conclusory, non-

specific contentions of being surprised or prejudiced; she did not offer a

supporting affidavit for her objection, and no witnesses were called at the hearing

testifying to specific facts to support her surprise or prejudice. Father, however,

does not cite any case law to support this argument that Mother must prove any

of these things to substantiate her surprise or prejudice. To the contrary, Mother

only had to object to the trial amendment alleging surprise or prejudice, because

in a situation where “the amendment would reshape the cause of action,

prejudicing the opposing party . . . the opposing party’s objection is sufficient to

show surprise.” Hakemy Bros., 189 S.W.3d at 924; see Chapin & Chapin, 844


                                        26
S.W.2d at 665 (“A party opposing a trial amendment does not have to prove

prejudice or surprise if the amendment is a substantive one which changes the

nature of the trial.”); Greenhalgh, 787 S.W.2d at 940 (“A newly plead affirmative

defense substantially changes the nature of a trial unlike adding a verified plea

conforming to issues already pleaded, amending the amount of damages

claimed.”). Father pointed to no evidence indicating that Mother should have

known that Father’s affirmative limitations defense would be at issue. See White

v. Sullins, 917 S.W.2d 158, 161 (Tex. App.—Beaumont 1996, writ denied)

(holding that trial court did not abuse its discretion in denying a trial amendment

adding a comparative negligence defense when “the record contains nothing

indicating the plaintiffs should have known comparative negligence was an

issue”). We cannot say that the trial court abused its discretion in denying the

trial amendment. See Hakemy Bros., 189 S.W.3d at 926; see also Burroughs

Corp. v. Farmers Dairies, 538 S.W.2d 809, 811 (Tex. Civ. App.—El Paso 1976,

writ ref’d n.r.e.) (“It is held that a trial amendment ordinarily should be denied

when sought after the evidence for both parties has been fully offered and when

it would change the theory of the trial.”).

      Father argues that, in the alternative, the statute of limitations issue was

tried by consent.     Father claims that the issue of the amount and date of

payments were fully litigated during the trial. He also argues that “[t]he evidence

adduced at trial made clear that the four year statute of limitations barred the

recovery sought by [Mother], because she was seeking to recover alleged


                                          27
payments which she claimed were due nearly ten years prior.” To determine

whether an issue was tried by consent, the court must examine the record not for

evidence of the issue, but rather for evidence of trial of the issue. In re P.D.D.,

256 S.W.3d 834, 840 (Tex. App.—Texarkana 2008, no pet.). Rule 67 applies

“where it clearly appears from the record as a whole that the parties tried out a

controverted issue and that the issue was fully developed.” Fiduciary Mortgage

Co. v. City Nat’l Bank of Irving, 762 S.W.2d 196, 202 (Tex. App.—Dallas 1988,

writ denied); See Tex. R. Civ. P. 67; Praeger v. Wilson, 721 S.W.2d 597, 603

(Tex. App.—Fort Worth 1986, writ ref’d n.r.e.). “A party’s unpleaded issue may

be deemed tried by consent when evidence on the issue is developed under

circumstances indicating both parties understood the issue was in the case, and

the other party failed to make an appropriate complaint.” Case Corp. v. Hi-Class

Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005, pet.

denied). However, “trial by consent is inapplicable when evidence relevant to an

unpleaded matter is also relevant to a pleaded issue; in that case admission of

the evidence would not be calculated to elicit an objection.” Id. (citing In re J.M.,

156 S.W.3d 696, 705 (Tex. App.—Dallas 2005, no pet.)).            In this case, the

amount and date of payment were raised to enforce the 2001 child support order;

nothing in the record indicates that Mother understood that limitations was at

issue or that the evidence of dates of payment should have elicited an objection.

Because the evidence to which Father cites in support of his limitations claim

was relevant to pleaded issues, trial by consent is inapplicable in this case. See


                                         28
P.D.D., 256 S.W.3d at 840; Case Corp., 184 S.W.3d at 771.              We overrule

Father’s twelfth issue.

10. Excessive support

      In Father’s thirteenth issue, he argues that the trial court abused its

discretion by ordering Father to pay excessive child support. He claims that the

trial court did not take into consideration Father’s ability to pay and his right of

self-subsistence. To determine the amount of support to be paid after a child’s

eighteenth birthday, section 154.306 of the family code states that the court shall

give special consideration to the following factors:

      (1) any existing or future needs of the adult child directly related to
      the adult child’s mental or physical disability and the substantial care
      and personal supervision directly required by or related to that
      disability;

      (2) whether the parent pays for or will pay for the care or supervision
      of the adult child or provides or will provide substantial care or
      personal supervision of the adult child;

      (3) the financial resources available to both parents for the support,
      care, and supervision of the adult child; and

      (4) any other financial resources or other resources or programs
      available for the support, care, and supervision of the adult child.

Tex. Fam. Code Ann. § 154.306 (West 2008).

      As to the first factor, the court heard testimony from Mother concerning

W.M.R.’s existing and future needs. Documentary evidence was also presented

and considered. See In re J.L.F., No. 04-01-00654-CV, 2002 WL 1625572, at *3

(Tex. App.—San Antonio July 24, 2002, no pet.) (not designated for publication)



                                         29
(holding that the evidence was sufficient to support the first factor when mother

testified that the adult child’s disability existed and required medical attention,

thus indicating that “it [was] likely that substantial care and personal supervision

are required to help [the adult child] with her disability”); see also In re Gonzalez,

993 S.W.2d 149, 159–60 (Tex. App.—San Antonio 1999, no pet.) (noting that no

expert testimony is required to determine if a child’s need exists).

      Turning to whether the parent pays or provides for the care or supervision

of the adult child, the trial court also considered substantial evidence to support

this factor. Both parents are not required to make equal monetary contributions.

Instead, each parent must “contribute money or services to the support and

maintenance of the children according to the respective ability of each parent and

the needs of the children.” Rose v. Rubenstein, 693 S.W.2d 580, 583 (Tex.

App.—Houston [14th Dist.] 1985, writ dism’d).        (“In determining child support

obligations, courts often recognize that parents make different contributions to a

child’s welfare.”).     The court heard substantial evidence about Mother’s

continuous care for W.M.R. as the primary caregiver. Father did not provide

daily care for W.M.R.

      Sufficient evidence was also presented for the third factor, the financial

resources available to both parents. The amount of child support that each

parent pays does not solely depend on their earnings.           Instead, “[t]he court

should consider the financial resources available to each parent, the respective

obligations borne by each parent, nonfinancial contributions made and the


                                         30
standard of living to which the children have been accustomed.” See id. (citing

Hazelwood v. Jinkins, 580 S.W.2d 33 (Tex. Civ. App.—Houston [1st Dist.] 1979,

no writ)). For 2010, Mother’s annual income was less than $70,000 and Father’s

annual income was approximately $90,000. Further, Mother was ordered to pay

for half of W.M.R.’s expenses even though she is the primary caregiver for

W.M.R. and her annual income and net resources are less than Father’s. Father

argues that the court did not consider his right to self-subsistence, citing Valaque

v. Valaque, 574 S.W.2d 608 (Tex. Civ. App.—San Antonio 1978, no writ), which

stands for the proposition that “[t]here is some minimum amount necessary for a

bare [subsistence], and less than such amount renders a child support order

unenforceable.” Id. at 609–610 (citing Anderson v. Anderson, 503 S.W.2d 124,

127 (Tex. Civ. App—Corpus Christi 1973, no writ)). However, the duty to pay

child support is not determined solely by an obligor’s ability to pay from earnings,

but also by his ability to pay from any and all sources that may be available. See

Tex. Fam. Code Ann. § 154.062 (West Supp. 2012); In Interest of S.B.C., 952

S.W.2d 15, 18 (Tex. App.—San Antonio 1997, no writ).            Here, evidence of

Father’s significant financial assets included a Toyota 4Runner, a motorcycle, a

BMW, an RV-Ford, a boat, a jet ski, a glider, a trailer, and a plane. See Krempp

v. Krempp, 590 S.W.2d 229, 231 (Tex. Civ. App.—Fort Worth 1979, no writ)

(ordering Father to pay $1000 in child support was not excessive after reviewing

evidence reflecting a Mercedes-Benz automobile and an airplane).           Father’s

financial information admitted into evidence showed two checking accounts with


                                        31
balances of roughly $58,000 and $26,000, a 401k with a balance of

approximately $55,000, and an IRA with a balance of almost $70,000. There

was no evidence presented by Father that he is unable to pay the support.

       Finally, the trial court considered sufficient evidence of other financial

resources for the support, care, and supervision of W.M.R.          This evidence

included the annuity payment that W.M.R. receives in the amount of $1,000 a

month. This amount, however, is not sufficient to cover all of W.M.R.’s monthly

expenses. See Rose, 693 S.W.2d at 583 (noting that “[t]he record is quite clear

that Eddie’s earnings of $560 per month do not cover his documented expenses

of $862 per month. . . . Our review of the record indicates that Eddie is not

currently self-supporting.”).   Mother testified that W.M.R.’s monthly expenses

were $3,931.     Mother’s estimation included items that Father was already

responsible for paying, such as medical expenses. It was reasonable for the trial

court to reduce Mother’s estimation by those expenses and then order Father to

pay half of the reduced amount. Father’s savings, salary, and other financial

assets demonstrate that he has the financial ability to support himself and his

son.   Because the trial court considered sufficient evidence to support each

factor, it did not abuse its discretion. See In re M.W.T., 12 S.W.3d 598, 607

(Tex. App.—San Antonio 2000, pet. denied) (“Because the record contains

information concerning all of the Section 154.306 criteria, the trial court did not

abuse its discretion in assessing current child support.”). The trial court’s child

support order is not excessive. We overrule Father’s thirteenth issue.


                                        32
11. Attorney’s Fees

      In his fourteenth issue, Father argues that the trial court abused its

discretion by awarding attorney’s fees to Mother without an adequate evidentiary

foundation. Specifically, Father makes two arguments: (1) that Mother failed to

introduce any evidence that the hourly rates charged by her attorneys were

reasonable; and (2) Mother’s attorney’s fees should not be allowed because the

fees were not segregated between the enforcement action and the modification

action.

      The trial court has broad discretion in awarding attorney’s fees in family

law matters that involve the parent-child relationship. Hardin, 161 S.W.3d at 24

(citing Tex. Fam. Code Ann. § 106.002 (Vernon 2002)); Bruni, 924 S.W.2d at

368). This award, however, must be supported by evidence. Id. (citing Thomas

v. Thomas, 895 S.W.2d 895, 898 (Tex. App.—Waco 1995, no writ)).              An

attorney’s sworn testimony concerning an attorney’s fees award is considered

expert testimony. Id. (citing Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714

S.W.2d 144, 148 (Tex. App.—Houston [1st Dist.] 1986, no writ)).

      Father argues that the evidence was insufficient to support the attorney’s

fee award because Mother’s attorney did not introduce evidence that the specific

hourly rate charged by each attorney and paralegal was reasonable. Specificity,

however, is not required.    Instead, “[t]o support a request for reasonable

attorney’s fees, testimony should be given regarding the hours spent on the

case, the nature of preparation, complexity of the case, experience of the


                                      33
attorney, and the prevailing hourly rates.”      Hardin, 161 S.W.3d at 24 (citing

Goudeau v. Marquez, 830 S.W.2d 681, 683 (Tex. App.—Houston [1st Dist.]

1992, no writ)). The court does not need to hear evidence on each factor but can

“look at the entire record, the evidence presented on reasonableness, the

amount in controversy, the common knowledge of the participants as lawyers

and judges, and the relative success of the parties.” Hagedorn v. Tisdale, 73

S.W.3d 341, 353 (Tex. App.—Amarillo 2002, no pet.) (citing Chilton Ins. Co. v.

Pate & Pate Enters., Inc., 930 S.W.2d 877, 896 (Tex. App.—San Antonio 1996,

writ denied)).

      In In re A.S.G., 345 S.W.3d 443, 451 (Tex. App.—San Antonio 2011, no

pet.), the attorney “did not testify to her hourly rate or exact number of hours

spent on the case, [but] she did specifically ask for $1,500 in attorney’s fees and

explained to the trial court their necessity and reasonableness.” The court held

that this comports with the basic requirements and was sufficient to support the

attorney’s fee award. Id. at 451–52.      In this case, Mother’s attorney testified

regarding each issue and presented an affidavit and billing record.              The

testimony reflected the attorney’s experience, the novelty and difficulty of the

issue in this case, and his opinion that his hourly rate of $250 was “traditional” for

Denton County. He also detailed his work and preparations for this case. The

attorney’s testimony and evidence is a reasonable basis for the award of

$29,495.51 for Mother’s attorney’s fees. See In re A.B.P., 291 S.W.3d 91, 98–99

(Tex. App.—Dallas 2009, no pet.) (concluding that attorney’s testimony that he


                                         34
believed his fees were reasonable and necessary, that he was familiar with the

customary fees in the community, and that he believed his fees fall within that

range was sufficient for attorney’s fee award); Henry v. Henry, 48 S.W.3d 468,

481 (Tex. App.—Houston [14th Dist.] 2001, no pet.)        (holding that testimony

“regarding the reasonableness of the fees, the hours worked, the rate charged,

and the services provided” was sufficient evidence for attorney’s fee award).

       Father also contends that Mother’s attorney’s fees should not be allowed

because the fees were not segregated between the enforcement action and the

modification action. Segregation of attorney’s fees is required when two or more

causes of action are involved. In such a case, “the party asserting those causes

must allocate the time spent between those for which attorneys’ fees may be

recovered and those for which they may not.” See S. Concrete Co. v. Metrotec

Fin., Inc., 775 S.W.2d 446, 449 (Tex. App.—Dallas 1989, no writ) (citing Bullock

v. Kehoe, 678 S.W.2d 558, 560 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d

n.r.e.)).   An exception exists “when the attorney’s fees rendered are in

connection with claims arising out of the same transaction and are so interrelated

that their ‘prosecution or defense entails proof or denial of essentially the same

facts.’” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11–12 (Tex. 1991).

However, “it is only when discrete legal services advance both a recoverable and

unrecoverable claim that they are so intertwined that they need not be

segregated.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313–314

(Tex. 2006). A court must examine the facts alleged in support of the claim to


                                       35
determine whether the claims are inextricably intertwined. See Kurtz v. Kurtz,

158 S.W.3d 12, 22 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (citing

Stewart Title, 822 S.W.2d at 11–12). If the prosecution or defense does not

entail proof or denial of essentially the same facts, the exception does not apply.

Air Routing Int’l Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 687

(Tex. App—Houston [14th Dist.] 2004, no pet.).

      Attorney’s fees are recoverable in both an enforcement action and

modification action. See Beck v. Walker, 154 S.W.3d 895 (Tex. App.—Dallas

2005, no pet.) (noting that “[w]hether to award attorney fees, pursuant to the

Family Code, to a child support obligee who successfully moves to enforce child

support is within the discretion of the trial court); In the Interest of H.S.N., 69

S.W.3d 829, 835 (Tex. App.—Corpus Christi 2002, no pet.) (finding no abuse of

discretion in award of attorney’s fees as child support regarding motion to modify

and motion to transfer). In this case, the modification action and the enforcement

action were based on the same facts.         Mother’s attorney testified as to the

similarity in preparation for the hearings on both issues. Mother was therefore

not required to segregate her attorney’s fees.     See Kurtz, 158 S.W.3d at 24

(holding that mother’s defense of father’s counterclaims to decrease child

support and his claim for offsets for payments made directly to mother, are

inextricably intertwined with her child support modification claims because those

claims “arise out of the same transaction and are so interrelated that their




                                        36
prosecution or defense entails proof or denial of essentially the same facts”). We

overrule Father’s fourteenth issue.

                                      Conclusion

      Having sustained Father’s fourth and fifth issues and overruled Father’s

other issues, we modify the trial court’s order to reduce the amount of the

arrearage to $65.35. We affirm the trial court’s order as modified.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DELIVERED: November 1, 2012




                                         37
