Affirmed in Part, Reversed and Remanded in Part, and Majority and
Dissenting Opinions filed March 24, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00718-CV

              IN THE INTEREST OF C.D.B., A MINOR CHILD


                   On Appeal from the 247th District Court
                           Harris County, Texas
                     Trial Court Cause No. 1995-25890

                     MAJORITY OPINION

      Appellant, Cedrick Brent, appeals the trial court’s order dismissing for lack
of subject matter jurisdiction Brent’s petition requesting several forms of relief
relative to a previous child-support order. Because we conclude the trial court had
jurisdiction over one such request for relief, we affirm in part and reverse and
remand in part.

                                I. BACKGROUND

      Brent and appellee, Shanda Elaine Mays, are the parents of C.D.B., who was
born in July 1994. Mays was appointed managing conservator of the child. Brent
was appointed possessory conservator and ordered to pay child support. The latest
order in the record imposing a support obligation was an agreed order in a previous
modification suit, signed by the trial court in March 2009. Under that order, Brent
was required to pay support of $385.38 semi-monthly until the latter of the child’s
eighteenth birthday or graduation from high school. It is undisputed that C.D.B.
graduated from high school in June 2012 and turned eighteen in July 2012.

      In January 2013, Brent filed what he entitled a “Petition to Modify the
Parent Child Relationship.” Brent alleged that C.D.B. lived with Brent from a
point during C.D.B.’s junior year until he graduated high school and Mays
voluntarily surrendered custody, but Brent continued to pay child support. As
discussed more below, we glean from the body of Brent’s petition that he
requested three cumulative or alternative forms of relief: (1) direct reimbursement
for support he paid during the period that Mays allegedly relinquished custody of
C.D.B. to Brent; (2) reimbursement of such payments as a counterclaim to Mays’s
claim for arrearages or an offset of support provided by Brent during such period
against his arrearages; and (3) retroactive support from Mays.

      Mays moved to dismiss the petition on the ground that C.D.B. had become
emancipated before Brent filed the petition and C.D.B. has no disability and thus
the trial court lacked jurisdiction over the petition. The trial court conducted a
hearing on the motion to dismiss. On May 16, 2013, the trial court signed an order
dismissing the petition on the ground that C.D.B. was emancipated and the court
lacked jurisdiction to “modify” its underlying order.

      Brent filed a motion for reconsideration. At the conclusion of a hearing, the
trial court orally announced that it overruled the motion, but the trial court did not
sign any written order; thus, the motion was overruled by operation of law. See
Tex. R. Civ. App. 329b(c). Brent now appeals from the dismissal order.

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                                II. STANDARD OF REVIEW

       In two interrelated issues, Brent contends the trial court erred by determining
it lacked jurisdiction over, and dismissing, his “Petition to Modify.” We construe
Mays’s motion to dismiss as a plea to the jurisdiction challenging Brent’s
pleadings.1 When a plea to the jurisdiction challenges the plaintiff’s pleadings, the
trial court must determine if the plaintiff alleges facts that affirmatively
demonstrate the court’s jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004). Whether the plaintiff has met this burden is a
question of law that we review de novo. Id. We construe the pleadings liberally in
favor of the plaintiff, consider the pleader’s intent, and accept as true the factual
allegations in the pleadings. Id. Unless the pleadings “affirmatively negate the
existence of jurisdiction,” the plea to the jurisdiction should not be granted without
allowing the plaintiff an opportunity to amend. Id. at 226–27.

                                       III. ANALYSIS

       In his appellate brief, Brent cites authority holding that a Texas court loses
continuing exclusive jurisdiction to modify its earlier child support order if the
child support order has terminated. See Moore v. Brown, 993 S.W.2d 871, 873
(Tex. App.—Forth Worth 1999, pet. denied). Under its own terms, the support
order in the present case terminated when C.D.B. became emancipated, which
undisputedly occurred before Brent filed his petition. Thus, there was no longer
any support order in effect that was subject to modification.



       1
          We note that Mays attached evidence to her motion to demonstrate C.D.B. had become
emancipated. Nevertheless, we construe the motion as challenging Brent’s pleadings, rather than
the jurisdictional facts; because Brent’s petition acknowledged C.D.B. had become emancipated,
the crux of the motion to dismiss was a contention that the pleading negated jurisdiction on its
face. See Miranda, 133 S.W.3d at 226–27 (recognizing plea to the jurisdiction may challenge
the pleadings or existence of jurisdictional facts).
                                               3
      Brent contends that, despite the title of his petition, he did not request
modification of the support order. We agree that a court considers the substance of
a pleading, not merely “the form of title given to it,” to determine the nature of the
relief sought. State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); see In
the Interest of A.M.K., No. 14–03–01308–CV, 2005 WL 3005636, at *5 (Tex.
App.—Houston [14th Dist.] Nov. 10, 2005, pet. denied) (mem. op.) (holding trial
court did not err by rendering judgment for child-support arrearages although
obligee’s pleading was entitled “Motion to Modify” because she included a request
for enforcement of arrearages).     Liberally construing the substance of Brent’s
petition, we determine that he requested three different forms of relief, and we
address the jurisdictional issue separately for each request. See Thomas v. Long,
207 S.W.3d 334, 338–39 (Tex. 2006) (stating it is proper for trial court to dismiss
claims over which it lacks subject matter jurisdiction but to retain claims in the
same case over which it has jurisdiction).

A.    Request for Direct Reimbursement

      First, Brent sought “to be reimbursed the overpayment of child support
payments made to [Mays] during the time period that she voluntarily relinquished
custody of the child . . . to [Brent].” As discussed more below, Brent’s petition as
a whole may be construed as requesting such reimbursement as a counterclaim
against a claim for arrearages.    However, reading the above-quoted sentence in
isolation, it may also be construed as a request for direct reimbursement
irrespective of whether Brent was in arrears.

      To the extent Brent made such a request, we construe it as essentially a
motion to modify. By requesting reimbursement for support payments made while
the child lived with Brent, irrespective of whether Brent was in arrears, Brent
sought, in effect, to retroactively modify the support order by eliminating his

                                          4
obligation to Mays for that period. Accordingly, we agree the trial court lacked
jurisdiction over such request. Moreover, we conclude that Brent is not entitled to
an opportunity to amend because his petition affirmatively negated jurisdiction.
See Miranda, 133 S.W.3d at 226–27.

B.    Request for Reimbursement or Offset Relative to Arrearages

      After the above-quoted sentence, Brent pleaded,          “Additionally and/ or
alternatively, [Brent] is seeking an offset against any and all arrearages in child
support payments that [Mays] claims are due and owing based upon the time
period that the child the subject of this suit was voluntarily relinquished to
[Brent].”     Considering both sentences together, we agree with Brent that he
requested (1) reimbursement for support he paid during the relinquishment period
as a counterclaim against Mays’s claim for arrearages, or (2) an offset for support
he provided during such period against Mays’s claim for arrearages. Therefore,
the trial court erred by treating the petition solely as a motion to modify.

      On appeal, Brent seems to focus on this requested relief relative to
arrearages.     Brent cites Family Code provisions governing a trial court’s
continuing jurisdiction to enforce its child support orders. Section 157.005(b)
provides,

      (b) The court retains jurisdiction to confirm the total amount of child
      support arrearages and render a cumulative money judgment for past-
      due child support . . . if a motion for enforcement requesting a
      cumulative money judgment is filed not later than the 10th
      anniversary after the date:
               (1) the child becomes an adult; or
               (2) on which the child support obligation terminates under the
               child support order or by operation of law.
Tex. Fam. Code Ann. § 157.005(b) ((West, Westlaw through 2013 3d C.S.).


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Section 157.269 more generally provides,

      A court that renders an order providing for the payment of child
      support retains continuing jurisdiction to enforce the order, including
      by adjusting the amount of the periodic payments to be made by the
      obligor or the amount to be withheld from the obligor’s disposable
      earnings, until all current support and medical support and child
      support arrearages, including interest and any applicable fees and
      costs, have been paid.
Id. § 157.269 (West, Westlaw through 2013 3d C.S.).

      Brent then cites section 157.008 entitled “Affirmative Defense to Motion for
Enforcement of Child Support”:

      (a) 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.
      (b) 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.
      ...
      (d) An obligor who has provided actual support to the child during a
      time subject to an affirmative defense under this section may request
      reimbursement for that support as a counterclaim or offset against the
      claim of the obligee.
      ...
Id. § 157.008 (a), (b), (d) (West, Westlaw through 2013 3d C.S.).

      Relying on these provisions, Brent suggests that, because the trial court
retained jurisdiction to enforce its support order until all arrearages were paid,
although C.D.B. is emancipated, it retained jurisdiction to entertain appellant’s
request for reimbursement or offset relative to a claim for arrearages. We agree
that Mays’s plea failed to negate jurisdiction over such request.


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       Mays did not assert a challenge to the jurisdictional facts underlying Brent’s
request. In her motion to dismiss, Mays did not differentiate between the several
forms of relief requested by Brent. Rather, Mays asserted that the trial court
lacked jurisdiction over the entire petition because C.D.B. had become
emancipated. Thus, Mays did not dispute Brent’s allegation that there was a claim
for arrearages, and we must accept the allegation as true. See Miranda, 133
S.W.3d at 226. Both parties agree that Brent was in arrears when the support order
terminated and when he filed his petition and the Attorney General was continuing
to garnish his wages to extinguish such arrearages when he filed the petition.2
Accordingly, we liberally construe his petition as asserting an affirmative defense
of offset or counterclaim as to a claim for arrearages.

       On appeal, Mays suggests that Brent may not obtain the requested relief
because there was no motion to enforce. Mays cites authority holding that the
statutory reimbursement or offset is “purely defensive” and does not grant the
obligor an independent right to seek reimbursement but rather provides for
reimbursement against the ‘claim of the obligee.’” In the Interest of A.M., 192
S.W.3d 570, 574 (Tex. 2006) (citing Tex. Fam. Code. Ann. § 157.008(d)). We
note there is no motion to enforce by either Mays or the Attorney General in our
record. However, nothing in the record negates that such a motion was filed.
       2
          Mays presented evidence of such garnishment in response to Brent’s motion for
reconsideration. In that motion, Brent suggested the support order had not terminated because
his wages were still being garnished. Mays presented the Attorney General’s records to show the
reason it continued to garnish wages was not because the order failed to terminate but because
there were arrearages. On appeal, Brent acknowledges the arrearages were the reason for the
continued garnishment. Further, we note that Mays’s comments at the hearing on her motion to
dismiss indicate that, despite acknowledging, and even subsequently presenting evidence, that
there were arrearages, she contended the trial court lacked jurisdiction because Brent included
his request related to the arrearages in a pleading entitled “petition to modify.” But, as discussed
above, the title does not control in determining the nature of the relief requested. See Heard, 603
S.W.2d at 833; In re A.M.K., 2005 WL 3005636, at *5.


                                                 7
Mays’s plea to the jurisdiction did not challenge that there was such a motion
because she challenged only Brent’s request for modification on the ground that
the child had been emancipated, and not his request for reimbursement or offset
against arrearages. Absent special exceptions, we consider Brent’s reference to a
“claim” for arrearages as sufficient to mean there was a motion to enforce.
Because the trial court retained jurisdiction over such a motion, see Tex. Fam.
Code Ann. §§ 157.005(b), 157.269, it retained jurisdiction over Brent’s request for
reimbursement or offset as an affirmative defense or counterclaim.

      Alternatively, although not exactly clear, Brent seems to acknowledge on
appeal that a motion to enforce was not filed because the Attorney General
continued to garnish his wages in order to extinguish the arrearages without the
necessity for such a motion. However, even if we consider Brent’s assertion as a
concession that there was no motion to enforce, he apparently suggests (1) the
garnishment of wages is functionally equivalent to such a motion and thus he may
seek reimbursement or offset, or (2) he may himself request confirmation of his
arrearages so that he may then seek reimbursement or offset. We conclude that the
dispute on whether there existed the sort of claim against which Brent may obtain
reimbursement or offset concerns the merits of his request. We do not hold that
Brent may necessarily obtain such reimbursement or offset absent Mays’s having
filed a motion enforce. For instance, we do not hold that the garnishment of wages
is necessarily the functional equivalent of a motion to enforce. However, Mays’s
plea to the jurisdiction did not implicate the merits of Brent’s request for
reimbursement or offset against a claim for arrearages. As mentioned above,
Mays’s plea was narrowly based on the contention that the trial court lacked
jurisdiction to modify Brent’s support obligation because the child had been
emancipated; the plea did not address Brent’s request for reimbursement or offset


                                        8
against a claim for arrearages. Because Brent pleaded for reimbursement or offset
against a claim for arrearages, Mays’s plea failed to negate the trial court’s
jurisdiction.

      Finally, we note that, after the trial court dismissed the “petition to modify,”
Brent filed an “Original Petition to Confirm Arrearage Recover/Reimburse Child
Support Payments Made.” In that petition, Brent requested reimbursement of child
support payments he made to Mays after the child was emancipated, confirmation
of arrearages, and reimbursement or offset relative to arrearages for support
provided during the period Mays allegedly relinquished custody. On appeal, Mays
argues that the request for reimbursement or offset relative to arrearages pleaded in
the earlier petition has been rendered moot because Brent requested the same relief
in his subsequent filing. The mootness doctrine precludes a court from rendering
an advisory opinion in a case where there is no live controversy. Robinson v. Alief
Indep. Sch. Dist., 298 S.W.3d 321, 324 (Tex. App.—Houston [14th Dist.] 2009,
pet. denied). Mays cites no authority that an earlier petition becomes moot merely
by virtue of the claimant filing a subsequent suit requesting the same relief. The
record does not reflect there has been any ruling on the subsequent petition, much
less a ruling granting the exact relief requested in the earlier petition.
Consequently, under the current state of our record, the portion of Brent’s earlier
petition requesting reimbursement or offset relative to arrearages presents a live
controversy.

      In summary, although the title of Brent’s pleading was “Petition to Modify,”
he requested other relief over which the trial court had jurisdiction.

C.    Request for Retroactive Support

      On appeal, Brent advances no argument and substantive analysis challenging
the trial court’s dismissal of Brent’s request for retroactive support from Mays.
                                           9
Therefore, we will uphold that portion of the trial court’s ruling. See Tex. R. App.
P. 38.1(i) (providing appellant’s brief must contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the
record); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—
Houston [14th Dist.] 2005, no pet.) (stating that, although our court reasonably and
liberally construes briefs, appellant must present some specific argument and
analysis to show record and law supports contention); see also Sonic Sys. Int’l, Inc.
v. Croix, 278 S.W.3d 377, 384–85 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied) (holding appellant waived challenge to summary judgment on certain
claims by advancing appellate argument only with respect to a different claim).

      Accordingly, we sustain Brent’s issues to the extent he challenges the trial
court’s dismissal of his request for reimbursement or offset relative to a claim for
arrearages. We thus reverse the portion of the trial court’s order dismissing that
request, remand for further proceedings consistent with this opinion, and affirm the
remainder of the order.




                                       /s/    John Donovan
                                              Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown. (Frost, C. J.
dissenting).




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