














 
 
 
 
 
                                   NUMBER
13-00-649-CV
 
                             COURT
OF APPEALS
 
                   THIRTEENTH DISTRICT OF TEXAS
 
                                CORPUS CHRISTI
 
                 IN THE INTEREST OF A.M. AND B.M.,
CHILDREN 
 
       On appeal from the
308th District
  Court of Harris County,
 Texas.
 
 
                                   O P I N I O N
 
                    Before Justices Hinojosa,
Castillo and Amidei[1]
                                  Opinion by
Justice Amidei            
 
This is an
appeal from a judgment of the 308th District Court of Harris County, Texas,
which affirmed a money judgment for child support arrearage rendered by a Title
IV-D[2]  master.




As assignee of
Catherine Chism, the mother of the children Brent Edmond Mullen and Adrienne
Michelle Mullen, the Attorney General of Texas, appellant, providing Title IV-D
services, and representing the interests of the state, sued Timothy Allen
Mullen, appellee, to reduce alleged unpaid child support to judgment. 
Appellee
answered the suit alleging as a defense that Chism voluntarily relinquished
possession and control of the children to him for extended periods of time in
excess of court ordered visitation; that he provided actual support to the
children during those periods of time; and asserted his right to offset all
such support against Chism=s claim.
In addition,
appellee filed a cross motion against Chism for reimbursement of  the amount of
child support he was ordered to pay during the periods he had possession of the
children and to reduce same to judgment. 
Chism was served with the cross motion, and although she personally
appeared at the hearing of the motion, she was defaulted by the trial court
because she failed to file an answer.
The Title IV-D
child support master=s judgment
against appellee in the amount of $2,331, without interest, was appealed to the
district court by appellant and appellee who now appeal the district court
judgment affirming the master=s judgment to
this Court.  Chism did not appeal.
Appellant=s Standing
Appellee
challenges appellant=s standing to
appeal the portion of the trial court=s ruling
adverse to Chism regarding his cross motion in view that she did not file a
notice of appeal.




Employed as an
attorney to provide Title IV-D services, appellant represents the interest of
the state and not the interest of any other party.  Tex. Fam. Code Ann. ' 231.109(d) (Vernon
1996).  Appellant=s services under Title IV-D did not
provide legal representation to Chism and no attorney-client relationship was
created between appellant and Chism.  Id.
 The trial court correctly struck an
answer the appellant attempted to file on behalf of Chism.  Chism represented herself pro se and did not
file a notice of appeal.  Tex. R. App. P. 25.1(c). 
Therefore, we
cannot consider any issue raised by appellant which contends for more favorable
relief to Chism than received from the trial court regarding appellee=s cross
motion.  Tex. R. App. P. 25.1(c).
The provisions
of section 157.008 of the Texas Family Code provide an affirmative defense to a
motion for enforcement of child support which appellee was entitled to urge to
defend against appellant=s suit.  Tex.
Fam. Code Ann. ' 157.008(a),(b) (Vernon 1996).  Other provisions of section 157.008 provide a
claim for reimbursement available to appellee only against Chism.  Tex.
Fam. Code Ann. ' 157.008(d),(e) (Vernon 1996).  Appellant has no standing to defend Chism=s interests or
to represent her as her attorney against appellee=s claim for reimbursement.  We accept as true the facts stated in appellee=s brief as to
his cross motion because Chism did not contradict them in a brief and appellant
did not have standing to contradict them in her behalf.  Tex. R. App. P. 38.1(f).  We cannot consider any of appellant=s issues which
seek to represent or defend Chism=s interests in
opposing appellee=s reimbursement
claim.  We will consider each issue to
determine whether it questions appellee=s right to a
defense to appellant=s motion or his
right to reimbursement in support of his cross motion.
               Standard of Review




In a divorce
suit, the discretion of the trial court as to the amount of child support to be
paid by a parent will be disturbed on appeal only where the record shows a
clear abuse of discretion.  Abrams v.
Abrams, 713 S.W.2d 195, 196 (Tex. App.BCorpus Christi
1986, no writ); Hardin v. Hardin, 351 S.W.2d 268, 268 (Tex. Civ. App.BWaco 1961, no
writ).  Abuse of discretion is determined
by examining whether the trial court acted without reference to any guiding
principles.  Tesch v. Stroud, 28
S.W.3d 782, 786 (Tex. App.BCorpus Christi
2000, pet. denied).  AA trial court
has no discretion in >determining= what the law
is or in applying the law to the facts.@  Walker
v. Packer,
827 S.W.2d 833, 840 (Tex.
1992).




We must
consider what effect we should give to clear, unambiguous statutes that were
drafted by the Legislative Council as part of the codification process but that
depart from prior law.  Fleming Foods of Tex.,
Inc. v. Rylander, 6 S.W.3d 278, 283-84 (Tex.
1999).  Under the Code Construction Act, see Tex. Gov=t Code Ann. ''
311.001-311.034 (Vernon 1998 & Supp. 2002), which applies to the Texas
Family Code, we may consider prior law, the circumstances under which the law
was enacted, and legislative history, among other matters, to aid us in
construing a code provision Awhether or not
the statute is considered ambiguous on its face.@  Tex. Gov=t
Code Ann. ' 311.023 (Vernon
1998); Fleming Foods, 6 S.W.3d at 283.  ABut prior law
and legislative history cannot be used to alter or disregard the express terms
of a code provision when its meaning is clear from the code when considered in
its entirety, unless there is an error such as a typographical one.A  Fleming Foods, 6
S.W.3d at 284.  Nor can the Code
Construction Act's directive to the Legislative Council to refrain from
changing the sense, meaning, or effect of a previous statute be used as a basis
to alter the express terms of a code that the Legislature enacts as law, even
when the Council's language does change the prior, repealed law.  Tex.
Gov=t Code Ann. ' 323.007(b) (Vernon 1998); Fleming
Foods, 6 S.W.3d at 284.
Unchallenged
findings of fact are binding on appellant and must be accepted by this Court as
conclusive undisputed facts.  Smith v.
Hues, 540 S.W.2d 485, 489 (Tex. Civ. App.BHouston [14th
Dist.] 1976, writ ref=d n.r.e.).  When the appellant challenges the trial court=s conclusions
of law, the court of appeals may sustain the judgment on any legal theory
supported by the evidence.  Kotis v.
Nowlin Jewelry, Inc., 844 S.W.2d 920, 922 (Tex. App.BHouston [14th
Dist.] 1992, no writ).  Incorrect
conclusions of law will not be reversed if the findings of fact support a
correct legal theory.  Id. 
      Issues Presented
Appellant=s first issue which
is designated as A instead of one, states:
The evidence
was legally and factually insufficient to support a finding that Mullen was
entitled to any offset against his child support arrearage for actual support
he provided to the children. 
 




This issue
questions whether there was sufficient evidence to support the trial court
finding that appellee was entitled to an offset under section 157.008(d), but
does not focus the discussion or make any conclusion that appellee was not entitled
to a defense under section 157.008(a),(b). 
Tex. Fam. Code
Ann. ' 157.008 (Vernon
1996).  Appellee could assert and be entitled to the
defense without claiming an offset.  The
offset is of more consequence to Chism than to appellant because had appellee
only asserted the defense and no offset, Chism would only lose any further
support money.  However, where appellee
asserts the offset too and is successful, not only does Chism lose any further
support money, but she is also required to reimburse
appellee for support money.  The only
interest of the appellant is to reduce child support arrearage to judgment and
assist in the collection of the judgment. 
The offset is clearly Chism=s interest and,
as discussed above, the appellant cannot represent her interest.  Appellant does not have standing to raise
this issue because it questions appellee=s right to an
offset rather than whether he is entitled to a defense. 
Even if
appellant had standing to raise this issue, Chism admitted the facts alleged in
appellee=s cross motion
when she was defaulted, and the findings of fact of the trial court establish:
(1) that appellee provided actual support for the children during the periods
Chism voluntarily relinquished possession to him from December 15, 1985 until
June 18, 1988, and from May 20, 1994 until July 20, 1996; (2) that Chism
provided no support during such periods; (3) the amounts of arrearage, and
payments; (4) the amounts of offset and reimbursement to which appellee was
entitled, as follows: 
Total child support ordered........................................................ $79,625.00
Total child support paid............................................................... 44,175.00
Balance after payments............................................................... 35,450.00
Total amount of offset allowed by trial court................................ 26,100.00
Balance after offset...................................................................... 9,350.00
 
Total amount of reimbursement allowed by trial court.................. 15,196.86
 
The difference
between the child support owed after the offset and the amount of reimbursement
($15,196.86 B $9,350) or
$5,846.86 is the amount of the judgment appellee claims the trial court should
have rendered in his favor.  The trial
court agreed with appellee as to his claims of offset and reimbursement but
affirmed the IV-D Court Child Support Master=s judgment against appellee in the amount
of $2,331.00, concluding the Master exercised its discretion to not allow all
offsets and credits, and in partial consideration thereof to assess no
interest.  (emphasis
supplied). 




Appellant
argues that Chism should not have been defaulted because she appeared
personally at the trial.  A judgment nil
dicit (or nihil dicit, Ahe says nothing@) is a judgment
for plaintiff rendered when the defendant has appeared but has failed to answer
or when the answer has been withdrawn or abandoned and no further defense is
made.  Bredeson v. Merrill Lynch, 513
S.W.2d 110, 112 (Tex. Civ. App.BDallas 1974, no
writ).  The trial court correctly cited
the Bredeson case when ruling that Chism was defaulted.  The Adefault@ or nihil
dicit judgment granted appellee was a judgment by confession, carrying with
it more strongly the admission of the justice of appellee=s cause of
action, and operates as a waiver of more errors than a judgment by
default.  Stoner v.
Thompson, 578 S.W.2d 679, 682 (Tex.
1979).  Because of the default, Chism admitted the
facts alleged in appellee=s cross motion as to the dates of appellee=s possession
and control of the children, including the allegation appellee provided Aactual support@.[3]  For the period from December 15, 1985 until
June 15, 1988, Chism admitted she provided no support to appellee.  Even without the default, the trial court could
have inferred from the testimony that since Chism did not provide support
during the alleged periods of possession, appellee did provide support directly
to the children during those periods.  Mathews
v. Warren, 522 S.W.2d 569, 570 (Tex. Civ. App.BAustin 1975,
writ ref=d n.r.e.) (trial court, in reaching its ultimate finding, had the right
to consider all facts and circumstances in evidence and to indulge in
reasonable inferences to be drawn from them). 




The findings of
fact filed by the trial court established the alleged periods of voluntary
possession the children were relinquished to appellee by Chism, that Chism
provided no support, and appellee paid actual child support during those
periods in the amount of $450.00 per month.[4]  These specific findings were not attacked or
challenged by appellant in the trial court or by a specific issue in its
original brief in this appeal.  For the
first time and after appellee mentioned in his brief that appellant had not
challenged these findings, the appellant made the statement in its reply brief
that appellee=s contention in
such regard lacks merit without citing authority or developing any argument to
support the statement.  Tex. R. App. P. 38.1(e).  We will not consider appellant=s contention that
the findings of the trial court were challenged because it is a new issue not
raised in appellant=s original
brief.  Smith, 540
S.W.2d at 489.  The briefing rules
do not allow an appellant to include in a reply brief a response to some matter
pointed out in appellee=s brief not
raised by appellant=s original
brief.  Tex.
R. App. P. 38.3; see also Anderson Producing, Inc. v. Koch Oil Co.,
929 S.W.2d 416, 424 (Tex. 1996) (holding that issue of disqualification of
counsel Anot properly
raised@ where only reference
to the issue was in reply brief); Barrios v. State, 27 S.W.3d 313, 322
(Tex. App.BHouston [1st
Dist.] 2000, pet. ref=d).
It is well
settled that absent a proper attack on material findings of fact they are
binding on appellant and must be accepted by this court as conclusive
undisputed facts.  Smith, 540 S.W.2d at 489. 
Unchallenged findings occupy the same position and are entitled to the
same weight as the verdict of the jury.  McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.
1986).




 Even assuming appellant had challenged the
findings of fact, appellant=s argument that
appellee was required to prove a 
itemized account of expenditures for actual support is not supported by
the cases cited by appellant because they were decided prior to the enactment
of section 157.008(e) which omits the language:
A. . .the child support order continues unabated until further
order of the court . . .@
 
contained in the prior section
14.41(c), and instead provides an affirmative defense to the enforcement of
child support when the obligee voluntarily relinquishes to the obligor actual
possession and control of a child.  Tex. Fam. Code Ann. ' 157.008 (Vernon
1996).
The
Curtis v. Curtis, 11 S.W.3d 466, 473-74 (Tex. App.BTyler 2000, no
pet.), case cited by appellant was decided after the enactment of section
157.008(e) but uses as authority cases decided prior thereto, and  does not reach the issue of whether the
amount of periodic payments previously ordered should be the amount of the
offset because there was an absence of evidence of any actual support in that
case.
Appellant
attempts to raise another new argument in its reply brief that section 157.008
was intended by the Legislature to be a nonsubstantive change to the former
section 14.41(c) and therefore we must look to the prior section 14.41(c) and
the cases decided thereunder, and disregard any changes made by section 157.008
which support appellee=s claim because
appellee Aconveys@ or says the
change was substantive.  As discussed
above, since this is a new issue raised in appellant=s reply brief,
we will not consider it.  See Tex. R. App. P. 38.3; Barrios, 27
S.W.3d at 322; Anderson Producing,
Inc., 929 S.W.2d at 424; Smith, 540 S.W.2d at 489.




Even
if the issue were properly raised, the authorities and argument made by
appellant do not support it.  Apparently,
appellant is attempting to invoke the doctrine of legislative acceptance which
contemplates that when an ambiguous statute is reenacted without substantial
change in verbiage, it will ordinarily receive the same construction.  Fleming Foods, 6
S.W.3d at 282.  However, such
doctrine is not applicable in this case because there is a substantial change in
the language of the revised statute, and neither the old or new statute is
ambiguous.  Id.
at 282-84.  The Jones v. Fowler,
969 S.W.2d 429, 432-33 (Tex. 1998), case cited by appellant does not apply and
must be distinguished as the Supreme Court of Texas did in the Fleming case
because the codification in question in that case held the words Asix months
preceding@ had the same
meaning as the prior law that said Asix months
immediately preceding@ and was not a
substantive change.  See Fleming Foods,
6 S.W.3d at 283. 
When
the Texas Family Code was recodified in 1995 and section 157.008 was enacted,
title 2 thereof, which included section 14.41(c), was expressly repealed.[5]





We
believe the legislature specifically intended to correct the inequity resulting
when someone in appellee=s position
failed to make an exact accounting of expenditures.  It is not fair or reasonable to expect
persons in appellee=s position to
keep records which may be needed to be presented in court someday.  Ordinarily, the obligee is not required to
make and/or file accountings to show how child support money was spent.  Appellee became the obligee when he had
possession of the children as alleged. 
There should be no more of a requirement that he account for the money
spent as actual support than Chism had for the child support money she received
from appellee. Otherwise the new legislation would have been useless and/or
unreasonable.  Hunter v. Fort Worth
Capital Corp.,  620 S.W.2d 547, 551 (Tex. 1981).  The new defense would not have afforded
relief as intended because of the obvious problems of proof which have occurred in the past. 
Appellee
argues this subsection authorized the trial court to allow an offset, and
reimbursement in amounts equal to the amount of periodic payments previously
ordered by the court.  We agree.  The trial court agreed too but did not allow
appellee the full amount in an attempt to exercise discretion in such regard.  However, once the entitlement to the offset
or reimbursement is established, the trial court must allow the full amount
thereof.  Section 157.008 does not
provide any discretion to allow only a part of the offset or
reimbursement.  Tex. Fam. Code Ann. ' 157.008 (Vernon
1996).  The trial court relied on section 157.262(f)[6]
for Apermissive@ authority to
allow a counterclaim or offset against a child support arrearage.  Section 157.262(f) provides that the money
judgment for arrearages may be subject to a counterclaim or offset as
provided by this subchapter but does not give the court the discretion to
only allow part of an offset or credit, and in partial
consideration thereof, to assess no interest as the trial court did in this
case.  Tex.
Fam. Code Ann. ' 157.262(f) (Vernon
Supp. 2002).  The trial court did not
have the discretion to reduce the amount of appellee=s offset or
reimbursement from $5,846.86, to a minus $2,331.00 after allowing the offset
and reimbursement.
Appellant=s first issue
designated as issue A is overruled.
Appellant=s second issue
which is designated issue B states as follows:




The offset or
counterclaim authorized by Texas Family Code section 157.008 is limited to the
amount of periodic payments previously ordered by the court.
 
Appellant
argues that appellee is not entitled to either an offset or reimbursement
because he failed to prove he spent at least $450 per month, the amount
previously ordered by the court.
As
discussed above, appellant has no standing to raise this issue, but even if
appellant had standing, the unchallenged trial court findings of fact found the
actual amount of support appellee provided was $450 per month, and that he was
entitled to an offset and reimbursement based on such amount.
Appellant=s second issue
designated as issue B is overruled.
Appellant=s third issue
which is designated as issue C states as follows:
The trial court
awarded impermissible, constructive, retroactive child support against Chism.
 
Appellant
complains that the effect of the trial court finding a reimbursement to
appellant constitutes an award of retroactive child support against Chism and
calls it double dipping.




Appellant
does not appeal the award of reimbursement against Chism, and does not have
standing to raise this issue on behalf of Chism.  Even if appellant had standing, the trial
court had authority to award reimbursement pursuant to section 157.008(d),(e); and, sections 154.009 and 156.401 do not prohibit
reimbursement as argued by appellant. Tex.
Fam. Code Ann. '' 154.009,
156.401 & 157.008(d),(e) (Vernon 1996 & Supp.
2002).  The purpose of section 154.009 is
to authorize a court to order a parent to pay retroactive child support where
the parent had not been a party to the suit when the child support was
previously ordered.  Id.
at ' 154.009.  Appellee and Chism were both parties to the
suit when child support was previously ordered, so section 154.009 is not
applicable.  Section 156.401 only
prohibits modifications of child support obligations accruing after service of
citation or appearance in modification suits. 
Id.
at ' 156.401.  Appellee=s cross motion
is not a suit to modify, nor was appellee required to file a modification
suit.  The ordered reimbursement is neither a new child support order or a modification of an
old order.  It was a substitution or
novation of part of the child support obligation for a limited period based on
the voluntary arrangements of the parties, the evidence of the parties= respective
incomes,[7]
and the fact the children had been adults for a number of years.  The reimbursement as compared to appellee=s child support
obligation is a relatively small, short term obligation.  It was expressly authorized by section
157.008(e) for the limited specific purpose of reimbursement in certain situations
involving voluntary relinquishment of possession of children. Id.
at ' 157.008(e).  Appellee was entitled to two remedies, a
defense and a reimbursement, and although appellant calls it double dipping, no
authority has been cited to show it is unlawful or improper.  No impermissible, constructive, or
retroactive child support was awarded against Chism by the trial court.
Appellant=s third issue
designated as C is overruled.
Appellant=s fourth issue
designated as issue D states as follows: 
The trial court
erred in defaulting Chism when she was present at and participated in the
trial. 
 




Appellant
claims it is authorized by assignment to represent Chism in challenging the
trial court defaulting her. However, an attorney employed to provide Title IV-D
services, as appellant was in this case, represents the interest of the state
and not the interest of any other party. 
Tex. Fam. Code Ann.  ' 231.109(d) (Vernon
1996).  As discussed above, appellant does not have
standing to represent Chism in challenging the default judgment against her on
appellee=s cross motion.
Even
if appellant had standing, the default was proper even though Chism was present
at the hearing.  See Bredeson, 513 S.W.2d at 112. 
Appellant did not challenge appellee=s proof of damages as reflected in the
trial court finding of fact and conclusions of law, except by argument on
appeal as to their legal effect.  Appellant=s lack of
standing prohibited appellant from making a challenge to appellee=s
cross motion proof.  In any event,
we cannot consider this issue, in the absence of a notice of appeal filed by
Chism, because it contends for more favorable relief to Chism than she received
from the trial court regarding appellee=s cross
motion.  Tex. R. App. P. 25.1(c).
Appellant=s fourth issue
designated as D is overruled.
Appellant=s fifth issue
designated as E states as follows:
The trial court
erred by ordering that no interest would accrue on the child support judgment.
 




Appellant
claims the trial court had no discretion to forgive, waive, abate, or otherwise
refuse to award less than the full amount of interest under section
157.265(b).  See Tex. Fam. Code Ann. ' 157.265(b) (Vernon
Supp 2002).  The trial court ordered
no interest would accrue on the judgment against appellee.  We have not been cited any authority which
gives the trial court discretion to not award the full amount of statutory
interest when child support arrearage is determined.  Appellee claims the appellant failed to
preserve this issue for appeal because it was not included in appellant=s motion for
new trial.  We disagree.  Appellant=s complaint is not one required to be
included in a motion for a new trial.  Tex. R. Civ. P. 324(b).  However, since the trial court should have
rendered judgment in favor of appellee instead of against him, the trial court
error did not cause the rendition of an improper judgment.  Tex.
R. App. P. 44.1(a)(1).  Instead, appellee would have had the same
complaint had the trial court awarded him the judgment and failed to award
interest.  The trial court should have
awarded appellee judgment including interest under section 157.265(b).
Appellant=s fifth issue
designated as issue E is overruled.
Appellee
urges a cross point which contends that based on the findings of fact and
conclusions of the trial court awarding him an offset and reimbursement, and
after deducting the support he actually paid, judgment should have been
rendered in his favor against Chism in the amount of $5,846.86, instead of the
judgment of $2,331 rendered in appellant=s favor against
him.  We agree. 
Appellee=s cross point
is granted.
We
affirm the part of the trial court findings and judgment which support appellee=s defense,
offset and counterclaim, but reverse the part which grants judgment in favor of
appellant against appellee in the amount of $2,331, and render judgment that
appellant take nothing from appellee, and appellee is granted judgment against
Chism in the amount of $5,846.86 plus interest pursuant to section 157.265(f)
of the Texas Family Code.
 
                                                               

MAURICE AMIDEI
Justice
Publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed this 
the 18th day of July,
2002.




[1]Former
Justice Maurice Amidei
assigned to this Court by the Chief Justice of the Supreme Court of Texas
pursuant to Tex. Gov=t Code Ann. '
74.003 (Vernon 1998).


[2]
Tex. Fam. Code Ann. ' 201.101 (Vernon 1996).


[3]
Whether judgment is in the nature of nihil dicit or post-answer default
by striking of the defendant=s
answer, they are all treated substantially the same way, and default judgment
admits facts which are properly alleged. Fears v. Mech. & Indus.
Technicians, Inc., 654 S.W.2d 524, 529-30 (Tex. App.BTyler
1983, writ ref=d n.r.e.).


[4]
Except during the period appellee provided for Brent alone from May 20, 1994
until July 20, 1996 the amount was found to be $46.18 per month.


[5]
Act of April 6, 1995, 74th Leg., R.S., ch 20, '1,
1995 Tex. Gen. Laws 113, 113-282.


[6]
The trial court refers to section 157.262(b) of the Texas Family Code, which
was redesignated as section 157.262(f), effective September 1, 2001.  See Act of April 20, 1995, 74th Leg.,
R.S., ch. 20, ' 1, 1995 Tex.
Gen. Laws 113, 184, amended by Act of May 28, 2001, 77th Leg., R.S., ch.
392, ' 1, 2001 Tex.
Gen. Laws 677, 678.  We will refer to the
current designation of this statute.


[7]
Chism=s 1996, 1997
and 1998 Federal Income Tax Returns were admitted into evidence.


