                                    NO. 07-03-0144-CV

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                      APRIL 29, 2004
                             ______________________________

               IN THE MATTER OF THE MARRIAGE OF LINDA N. MOON
                 AND DONALD RAY MOON AND IN THE INTEREST OF
                         MELINDA DAWN MOON, A CHILD

                            _________________________________

              FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;

                            NO. 4533; HON. ED SELF, PRESIDING
                            _______________________________

                                   Memorandum Opinion
                             _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

       Appellant Donald Ray Moon (Donald) appeals an order of the trial court withholding

child support from his earnings. In doing so, he contends the trial court erred in 1) refusing

to allow the admission of a statement of personal or family history by an unavailable

declarant, and 2) overruling his affirmative defense of equitable estoppel. We affirm the

order of the trial court.

                                    Background

       Donald and appellee Linda N. Moon (Linda) were divorced by decree dated May 15,

1978. A daughter, Melinda Dawn Moon (Melinda), was the only child born of the marriage,

and Linda was granted custody of the child. Donald was ordered to pay $33.00 per week
in child support. In October 1985, an order was entered modifying the parent-child

relationship requiring Donald to pay $200.00 per month with the first payment due

December 1, 1985. In February 1986, he signed an “Affidavit of Voluntary Relinquishment

of Parental Right” based on his belief that Linda’s husband Toby Tucker was going to

adopt Melinda. That adoption never took place although the child did begin to use the

name Tucker. In 1989, both parties signed a document entitled “Joint Motion to Modify

Managing Conservatorship” in which Donald sought to be appointed sole managing

conservator of Melinda and to be released from all prior unpaid child support. That

document was never filed with the court.

      Linda subsequently filed a notice of application for judicial writ of withholding on

January 9, 2003, seeking past child support payments. In response, Donald filed a motion

to dismiss and motion to stay the issuance of the writ alleging, among other things, the

“equitable doctrine of estoppel by laches” and that Melinda had been adopted by Linda’s

husband Toby Tucker.      A hearing was held on March 6, 2003, and the trial court

subsequently entered an order for withholding child support from earnings. In doing so,

the court found that Donald owed $12,000 in child support arrearage with $10,533.76

interest accrued through March 1, 2003.

                            Issue One - Hearsay Statement

      In his first issue, Donald complains of the trial court’s failure to allow the admission

of a sworn written statement allegedly made in 2001 by Melinda in which she stated that

Donald had given up all parental rights to her when she was 12 years of age, and she was

then adopted by Toby Tucker. We overrule the issue.




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        Donald contends that the statement was admissible under Rule 804(a)(5) of the

Rules of Evidence. That rule provides an exception to the hearsay rule when the declarant

is unavailable. It permits a statement “concerning the declarant’s own birth, adoption,

marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or

other similar fact of personal or family history even though the declarant had no means of

acquiring personal knowledge of the matter stated. . . . “ TEX . R. EVID . 804(b)(3). A witness

is unavailable when the declarant “is absent from the hearing and the proponent of the

declarant’s statement has been unable to procure the declarant’s attendance or testimony

by process or other reasonable means.” TEX . R. EVID . 804(a)(5). It is the proponent of the

statement who has the burden to affirmatively show that the witness is unavailable.

Owens-Corning Fiberglas Corp. v. Wasiak, 917 S.W.2d 883, 888 (Tex. App.--Austin 1996),

aff’d, 972 S.W.2d 35 (Tex. 1998); Keene Corp. v. Rogers, 863 S.W.2d 168, 177 (Tex.

App.--Texarkana 1993, writ stayed). We review the trial court’s ruling for an abuse of

discretion. Otero-Miranda v. State, 746 S.W.2d 352, 355 (Tex. App.--Amarillo 1988, writ

ref’d, untimely filed).

        At the hearing, there was testimony from Donald that Melinda resided in Missouri.1

A witness is not unavailable unless a good faith effort has been made to procure her

attendance. Otero-Miranda v. State, 746 S.W.2d at 355. Even if the evidence of Melinda’s

residence was sufficient to establish that Melinda was beyond the subpoena power of the

court, Donald failed to establish that he was unable to take her deposition or otherwise

procure her testimony. See Fuller-Austin Insulation Co. v. Bilder, 960 S.W.2d 914, 921



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          There was no evidence at the hearing that Melinda was una ble to attend becaus e of a snow storm
as D ona ld ass erts o n ap pea l.

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(Tex. App.--Beaumont 1998, pet. and cause dism’d); Owens-Corning Fiberglas Corp. v.

Wasiak, 917 S.W.2d at 888. Therefore, we can find no abuse of discretion on the part of

the trial court in sustaining the hearsay objection.

                      Issue Two - Defense of Equitable Estoppel

       Via his second issue, Donald challenges the trial court’s overruling of his affirmative

defense of equitable estoppel. We overrule the issue.

       The grounds for filing a motion to stay the issuance of a writ of withholding are

limited to a dispute concerning the identity of the obligor or the existence or the amount of

arrearages. TEX . FAM . CODE ANN . §158.397(b) (Vernon 2002). However, the defense of

equitable estoppel can be asserted in appropriate circumstances. In re Digges, 981

S.W.2d 445, 447 (Tex. App.--San Antonio 1998, no pet.). Donald pled the affirmative

defense of “estoppel by laches.” Laches is a defense based on an unreasonable delay in

the assertion of equitable or legal rights and a good faith change of position by another to

his detriment due to the delay. In re Moragas, 972 S.W.2d 86, 92 (Tex. App.--Texarkana

1998, no pet.). Laches is not available in a suit for enforcement of a statutory legal right

such as the collection of child support. In re M.W.T., 12 S.W.3d 598, 604 (Tex. App.--San

Antonio 2000, pet. denied); Ex parte Payne, 598 S.W.2d 312, 318 (Tex. App.--Texarkana

1980, no writ), overruled on other grounds by Huff v. Huff, 648 S.W.2d 286 (Tex. 1983).

       However, on appeal, Donald argues the defense of equitable estoppel by virtue of

his execution of a voluntary relinquishment of parental rights under the belief the child was

to be adopted by Linda’s new husband Toby Tucker, his nonpayment of further child

support after execution of the document, the use by the child of the last name of Tucker

after execution of the document, the lack of any visitation rights after execution of the


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document, and Linda’s failure to ever tell him his parental rights had not been terminated.

An affirmative defense is generally waived if not pleaded. Shoemake v. Fogel, Ltd., 826

S.W.2d 933, 937 (Tex. 1992); Alvarado v. Wingfoot Enterprises, 53 S.W.3d 720, 725 (Tex.

App.--Houston [1st Dist.] 2001), rev’d on other grounds, 111 S.W.3d 134 (Tex. 2003).

Because Donald did not plead the defense of equitable estoppel, it has not been preserved

for appeal.

       However, even if we liberally construe his pleading to assert that defense, the

elements of estoppel are: 1) false representation or concealment of material facts, 2)

made with actual or constructive knowledge of those facts, 3) to a party without knowledge,

or the means of knowledge, of those facts, 4) with the intention that it should be acted on,

and 5) the party to whom it was made relied or acted on it to his prejudice. Kawazoe v.

Davila, 849 S.W.2d 906, 909 (Tex. App.--San Antonio 1993, no writ); LaRue v. LaRue, 832

S.W.2d 387, 392 (Tex. App.--Tyler 1992, no writ). In contending that those elements exist,

Donald relies on Kawazoe v. Davila, 849 S.W.2d at 909-10, in which the court affirmed the

denial of a motion for enforcement of a child support order by contempt when the former

husband had signed a relinquishment of his parental rights under the belief the child would

be adopted by his former wife’s new husband and, for 13 years, she represented to him

on a number of occasions he was no longer the child’s father even when she knew his

parental rights had not been terminated and no adoption would take place, she denied him

visitation rights, and the child began to use her new husband’s name.

       Donald claims that he had no reason to believe the adoption had not taken place

and he knew that his daughter went by the name of Tucker. Further, both Linda and his

daughter represented to him she had been adopted, and no child support was requested


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by Linda. However, the evidence also shows that Melinda came to stay with him and his

new wife in 1989 for a period of time, and Donald signed a motion to modify managing

conservatorship because he and his wife felt she was old enough to “get to know her

daddy.” Given the existence of a preexisting order regarding the conservatorship of

Melinda, Donald’s signing a document purporting to change that prior order and vest

conservatorship of Melinda in him hardly connotes that his parental relationship with

Melinda had been terminated through her adoption by a third party. Simply put, it is some

evidence upon which the factfinder could conclude that Donald knew no one adopted his

daughter and his parental relationship with the child had not ended. See LaRue v. LaRue,

832 S.W.2d at 394 (holding knowledge that a child has reverted back to the father’s

surname in spite of an apparent termination of the parent-child relationship placed the

father on notice that he should investigate the termination and adoption proceeding).

      If a party conducts himself with careless indifference to means of information

reasonably at hand or ignores suspicious circumstances, he may not benefit from the

defense of estoppel. Barfield v. Howard M. Smith Co., 426 S.W.2d 834, 839 (Tex. 1968);

In re Moragas, 972 S.W.2d at 91. Based on these facts and the trial court’s ability to

observe the demeanor and credibility of the witnesses, we cannot say the trial court erred

in failing to determine that Linda was equitably estopped from obtaining a withholding

order. In short, there exists evidence of record negating Donald’s implicit argument that

he proved the defense of equitable estoppel as a matter of law.

         Accordingly, the order of the trial court is affirmed.



                                                  Per Curiam


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