                                                                                              ACCEPTED
                                                                                          01-15-00685-CV
                                                                               FIRST COURT OF APPEALS
                                                                                       HOUSTON, TEXAS
                                                                                     8/10/2015 2:07:45 PM
                                                                                    CHRISTOPHER PRINE
                                                                                                   CLERK

                             No. _________________

In re Williams,                         §                             FILED
                                                            In the Court    IN
                                                                         of Appeals
                                                                 1st COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                        §                     First  Judicial  District
                                                                 8/10/2015 2:07:45 PM
                                                                 CHRISTOPHER A. PRINE
                                                                         Clerk
Relator                                 §                           Houston, Texas

              Relator’s Motion for Emergency Temporary Relief

      Relator asks this Court for emergency temporary relief to stay the trial court’s

order so the writ of income withholding may be reinstated pending the trial court

conducting an evidentiary hearing to determine the remaining balance on the

judgment for child support arrearages, attorney’s fees and court costs.

                                    Introduction

      Relator is Amy Williams, child support obligee. Respondent is the Honorable

Sheri Y. Dean, Judge of the 309th Judicial District Court of Harris County, Texas.

Real Party in Interest is Harold Holmes, child support obligor.

      Amy files her Petition for Writ of Mandamus concurrently with this Motion for

Emergency Temporary Relief and incorporates the petition and its exhibits herein as

if recited verbatim. Citations to an item in the appendix may be found in the appendix

to the Petition for Writ of Mandamus.

      This Court may grant temporary relief pending its determination of an original

proceeding. Tex. R. App. P. 52.10(b).

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      This emergency stay is necessary to preserve Amy’s vested child support rights

which were previously affirmed by this Court, to maintain the status quo of the parties

and to preserve this Court’s jurisdiction to consider the mentis of the original

proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex. App.–San Antonio 1995, orig.

proceeding).

      Amy attaches a certificate of compliance certifying that on August 10, 2015,

she notified Respondent and Obligor Holmes by email and/or fax that a motion for

temporary relief would be filed. Tex. R. App. P. 52.10(e).

      Amy attaches the affidavit of her attorney to establish facts that are not

included in the appellate record and are not known to this Court in its official

capacity. Id. 10.2.

                 Facts Supporting Emergency Temporary Relief

      On October 1, 2009, the trial court signed the Final Reformed Order

adjudicating Obligor Holmes’ total child support arrearages as of June 19, 2009, were

$55,486.78, comprising $49,934.70 in unpaid support, $5,000.00 in attorney’s fees,

$552.08 in court costs and conditional appellate fees of $3,000.00. (App. 1). Obligor

Holmes appealed that order. On May 19, 2011, this Court issued its opinion affirming

the trial court’s judgment. (App. 2). In its opinion, this Court stated the trial court

granted Amy a “Judgment for the total amount of child-support arrearages, including

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accrued interest, attorney fees and court costs.” Id. at 217. Pursuant to the judgment

granted by the trial court and affirmed by this Court, Amy issued a writ of income

withholding to collect child support, attorney’s fees and court costs.

      On April 13, 2015, Obligor Holmes asked Respondent to terminate the writ of

income withholding even though his own pleadings admit the judgment entered on

October 1, 2009, and affirmed by the this Court on May 19, 2011, remains

unsatisfied. (App. 3). Obligor Holmes’ Third Supplemental Motion to Confirm Child

Support Arrearage and Terminate Income Withholding expressly admits he “now

owes $526.41” and admits he has never paid the court-ordered attorney’s fees and

costs this Court affirmed and that he owes under the Judgment. (App. 4, 5). Without

conducting a hearing or receiving evidence of any kind, Respondent granted Obligor

Holmes’ request and terminated the writ of withholding. (App. 8).

      Amy has a vested child support right in the writ of income withholding and

monthly payments upon which she relies. Pursuant to the Texas Family Code, the writ

of income withholding remains effective until all child support, court-ordered

attorney’s fees and costs are paid. Tex. Fam. Code Ann. §158.102 (West 2014).

Because Obligor Holmes admittedly still owes “child support arrearages, interest, and

. . . ordered attorney’s fees and court costs,” Respondent had no authority to withdraw

the writ on July 28, 2015. Id.; In the Interest of T.L., 316 S.W.3d 78, 88 (Tex.

                                                                           Page 3 of 13
App.–Houston [14th Dist.] 2010, pet. denied).

      This is not the first time Obligor Holmes has sought to terminate or suspend the

writ of income withholding. While this case was originally on appeal, Obligor

Holmes filed a Motion to Suspend Judgment and for Remittitur, arguing the trial court

lacked jurisdiction to grant a judgment for child support arrearages, attorney’s fees

and court costs. This was a case of first impression and Justice Alcala initially agreed

and signed the Order Suspending Judgment on July 7, 2010. (App. 11).

      Amy then filed a Motion to Reconsider in this Court, arguing the trial court did

have jurisdiction to grant a judgment for unpaid child support, attorney’s fees and

court costs and arguing the writ of income withholding should be reinstated and the

withheld funds should be deposited into the registry of the trial court until the

resolution of the appeal. On August 6, 2010, Justice Alcala signed the Order

withdrawing the Order Suspending Judgment, reinstating the writ of income

withholding and ordering that all withheld funds be deposited into the trial court’s

registry pending the resolution of the appeal. (App. 12).

      The precedent Justice Alcala set in this case by withdrawing the Order

Suspending Judgment is incredibly important to this Motion for Emergency

Temporary Relief. Since the judgment was in force, as it is in this case, the only

appropriate solution was to order the withheld funds be deposited into the trial court’s

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registry. Even when this Court thought the trial court may have lacked jurisdiction to

grant a child support arrearage judgment–which would essentially have meant

Obligor Holmes owed $0.00 in child support arrearages, attorney’s fees and court

costs–this Court still ordered the writ of income withholding continue and the

garnished wages be deposited in the registry.

      Here, it is beyond dispute Obligor Holmes has not satisfied the child support

arrearage, court ordered attorney’s fees and costs. (App. 4, 5, 7, 8). Therefore, if this

Court thought it was improper to terminate the writ of income withholding when it

questioned, but ultimately affirmed, the trial court’s jurisdiction to award child

support arrearages, attorney’s fees and costs, then it is without a doubt improper to

terminate the writ of income withholding when Obligor Holmes admits he has not

fully paid the child support arrearage, court-ordered attorney’s fees and costs.

                   Necessity for Emergency Temporary Relief

      The necessity for this Motion for Emergency Temporary Relief stems from

Respondent’s order terminating the writ of income withholding. On July 28, 2015,

both parties’ motions were set for a hearing to determine the remaining balance of the

unpaid judgment for child support arrearages, attorney’s fees and court costs. (App.

8). After the call of the docket, all counsel in our case were called to the bench for an

off-the-record conference with the lawyers only. Id. Respondent advised us she would

                                                                             Page 5 of 13
not be able to hear any of the matters before the trial court in our case and the case

would have to be reset to October 2, 2015. Id.

      During the bench conference, Obligor Holmes’ counsel stated to the trial court

it was her belief the arrearages for monthly periodic support only would be overpaid

by the reset date. Id. No evidence of any kind was taken by Respondent or offered by

Obligor Holmes. Id. Obligor Holmes’ counsel then asked Respondent to withdraw the

writ of income withholding that had been issued pursuant to the judgment entered on

October 1, 2009, and affirmed by this Court on May 19, 2011. Id. The writ of income

withholding was a vested child support right of Amy. Without the introduction of any

evidence and without conducting a hearing, Respondent terminated the writ of

income withholding until October 2, 2015. Id. The monthly support that Amy had

been receiving and counted on for six years vanished. It is imperative the writ of

income withholding be immediately reinstated as Obligor Holmes’ next two paydays

are August 15 and September 1, 2015.

      On July 29, 2015, Amy filed a Motion to Deny Entry of Order and Motion to

Reconsider Withdrawal of Writ of Income Withholding requesting that her motion be

set before the entry of any order. (App. 9). Respondent did not do so. On July 31,

2015, without notice, the form ordering withdrawal of the writ of income withholding

was signed. (App. 10, 13). No evidence of any kind was presented by the Obligor

                                                                          Page 6 of 13
Holmes before the writ was terminated nor did Respondent conduct a hearing. (App.

8). Respondent has not set a hearing on the motion to reconsider.

      The writ of income withholding was Amy’s vested child support right affirmed

by this Court and Respondent terminated it without the introduction of any evidence

and without conducting a hearing. This was improper. It is well-settled law a trial

court cannot limit the enforcement of a child support judgment. In re Dryden, 52

S.W.3d 257, 263 (Tex. App.–Corpus Christi 2001, no pet.). Further, it is well-settled

law a writ of income withholding to enforce a judgment for child support arrears

and/or a child support lien to enforce a judgment on arrears cannot be withdrawn by

the trial court unless and until there is an evidentiary hearing determining that no

further sums are owed pursuant to the judgment. In the Interest of T.L., 216 S.W.3d

at 88; In the Interest of C.D.E., No. 14-14-00086-CV; 2015 Tex. App. LEXIS 673,

*8-9 (Tex. App.–Houston [14th Dist.] January 27, 2015, no pet.); Tex. Fam. Code

Ann. §§157.318 (West 2014); 158.102.

      Obligor Holmes’ live pleading–his Third Supplemental Motion to Confirm

Child Support Arrearage and Terminate Income Withholding–states he owes $526.41

in monthly periodic support and further admits the court-ordered attorney’s fees and

court costs that were affirmed by this Court were not included in his calculations.

(App. 5)(stating “Amount applied to attorney’s fees and costs: $0.00”). In her

                                                                         Page 7 of 13
pleadings, Amy asserts the total amount unpaid on the judgment is $15,353.68 as of

May 27, 2015, which consists of monthly periodic child support arrearages in the

amount of $3,964.68 and arrearages for court-ordered attorney’s fees and court costs

in the amount of $11,389.00 (App. 7, Exhibit D). However, it is undisputed, and

Obligor Holmes’ live pleading admits, that each element of the judgment–i.e.,

monthly periodic child support, court-ordered attorney’s fees and court costs–remains

unpaid.

      The Texas Family Code §158.102 unambiguously provides,

      An order or writ of income withholding under this chapter may be issued
      until all current support and child support arrearages, interest, and
      any applicable fees and costs, including ordered attorney’s fees and
      court costs, have been paid.

Tex. Fam. Code Ann. §158.102 (emphasis added). Nothing in this section nor any

other portion of the Family Code grants Respondent the power to eliminate the writ

of income withholding while Obligor Holmes admittedly still owes arrearages,

ordered attorney’s fees and costs. See id. §158.001 et seq.

      Interpreting substantively identical language in Texas Family Code §157.318

regarding child support liens– providing “a lien is effective until all current support

and child support arrearages, including interest, any costs and reasonable

attorney’s fees . . . have been paid”–the Fourteenth Court of Appeals concluded a


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trial court could not terminate a child support lien because “the statute does not

provide an option authorizing the trial court to vacate or terminate a lien when

arrearages are due and owing.” In the Interest of C.D.E., 2015 Tex. App. LEXIS 673,

*8-9 (emphasis added). The same clearly holds true for a writ of income withholding,

which is an additional “enforcement” remedy under Chapter 158 and which contains

the exact same language. There exists no provision or right to terminate a writ of

income withholding when arrearages are owed. In the Interest of T.L., 316 S.W.3d at

88 (“[T]he mere fact of an obligor’s dispute–without a determination of arrearages in

his favor–does not invalidate the . . . writ” and it cannot be withdrawn until there is

evidence showing there are no arrearages owed).

      As stated, Obligor Holmes’ Third Supplemental Motion to Confirm Child

Support Arrearage and Terminate Income Withholding expressly admits he “now

owes $526.41” and admits that he has never paid the court-ordered attorney’s fees

and costs that he owes under the Judgment. (App. 5). Because Obligor Holmes

admittedly still owes “child support arrearages, interest, and . . . ordered attorney’s

fees and court costs,” Respondent had no authority to withdraw the writ on July 28,

2015. Additionally, even Obligor Holmes’ live pleading suggests the payments on the

writ of income withholding should be placed in the registry of the trial court. (App.

4).

                                                                           Page 9 of 13
      Respondent deprived Amy of her vested child support rights and deprived her

of due process under the Constitutions of Texas and the United States by terminating

the writ of income withholding without conducting a hearing and without receiving

evidence. The writ of income withholding was entered pursuant to the trial court's

judgment and affirmed by this Court. The writ had been paying for six years. Amy

had a vested child support right in the writ of income withholding and the monthly

income on which she relied. She could not be constitutionally deprived of her vested

child support right without an evidentiary hearing. Eli Lilly Land Co. v. Marshall, 829

S.W.2d 157, 158 (Tex. 1992); Smith v. O’Neill, 813 S.W.2d 501, 502 (Tex. 1991).

This was a clear abuse of discretion for which there is no adequate remedy at law.

      Respondent violated the Texas Family Code by terminating the writ of

withholding without conducting an evidentiary hearing to determine whether Obligor

Holmes has fully paid all child support arrearages, interest, attorney’s fees and court

costs. See, Tex. Fam. Code Ann. §158.102; In the Interest of T.L., 316 S.W.3d at 88.

Therefore, Amy has no option but to ask this Court for an emergency order for

Respondent to reinstate the writ of income withholding until the evidentiary hearing

is held to determine if child support arrearages, court-ordered attorney’s fees and

court costs remain unpaid. In the alternative, Amy requests this Court to order all

withheld funds be deposited into the trial court’s registry until an evidentiary hearing

                                                                           Page 10 of 13
is held. As Amy argued five years ago to this Court, the wages and earnings of

Obligor Holmes for each pay period the writ is terminated will never again be able

to be captured by the writ and will result in a loss of funds that would otherwise be

available and applied to the unpaid child support arrearages. The same principle that

Justice Alcala applied in her ruling applies today. The writ of income withholding

should remain in place and Amy’s vested child support rights be preserved.

                                      Conclusion

      Respondent violated Amy’s due process rights and the Texas Family Code

when it terminated her vested right to enforce her judgment for child support

arrearages, attorney’s fees and court costs without conducting a hearing or receiving

evidence of any kind as to the amounts still owed under the judgment. Amy seeks

relief from this Court to reinstate the writ of income withholding until an evidentiary

hearing occurs or, in the alternative, to reinstate the writ and order all withheld funds

be deposited into the registry of the trial court until an evidentiary hearing is held and

the case is finally decided.

                                         Prayer

      For the reasons stated in this motion, Amy asks this Court for emergency

temporary relief to preserve her vested child support rights, maintain the status quo

of the parties and preserve the Court’s jurisdiction to consider the merits of her

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original proceeding. It is imperative the writ of income withholding be reinstated

because Obligor Holmes’ next two paydays are August 15 and September 1, 2015.

                                        Respectfully submitted,

                                        Sinkin Law Firm
                                        105 West Woodlawn Avenue
                                        San Antonio, Texas 78212
                                        Telephone (210) 732-6000
                                        Telecopier (210) 736-2777

                                        By:    /s/ Steven A. Sinkin
                                              Steven A. Sinkin
                                              State Bar No. 18438700
                                              ssinkin@sinkinlaw.com
                                              Andrew Ross
                                              State Bar No. 24070529
                                              aross@sinkinlaw.com
                                              Stett Matthew Jacoby
                                              State Bar No. 24041175
                                              sjacoby@sinkinlaw.com
                                              Attorneys for Relator, Amy Williams

                             Certificate of Compliance

Under Texas Rule of Appellate Procedure 52.10(a), I certify that on August 10, 2015,

I notified the Honorable Sheri Y. Dean of the 309th Judicial District Court of Harris

County, Texas, by calling her court and notifying her staff the motion for temporary

relief will be filed and by sending Judge Dean a copy by overnight mail. I also certify

that on August 10, 2015, I notified Harold Holmes that a motion for temporary relief

had been filed by fax and email.

                                                                          Page 12 of 13
                                      /s/ Steven A. Sinkin
                                      Steven A. Sinkin

Honorable Sheri Y. Dean
Judge, 309th Judicial District Court of Harris County, Texas
201 Caroline, 16th Floor
Houston, Texas 77002
Respondent
via phone call and overnight mail

Lauren E. Waddell
Fullenweider Wilhite
4265 San Felipe Street, Suite 1400
Houston, Texas 77027
Attorney for Harold Holmes, Real Party in Interest
via fax and email




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