Reversed and Remanded and Majority and Dissenting Opinions filed May 29,
2014.




                                           In The

                     Fourteenth Court of Appeals

                                NO. 14-13-00301-CV

                      VICTORIA V. OCHSNER, Appellant

                                            V.

                       PRESTON A. OCHSNER, Appellee

                    On Appeal from the 247th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2001-54131

                          DISSENTING OPINION

      The majority concludes that the trial court abused its discretion in finding
that Preston complied with his child support obligations by paying for tuition for
day care and private schools. Because the evidence at trial supports such an
implied finding, I respectfully dissent.

      The evidence at trial supports a finding by the court that Victoria was
financially responsible for the day care and school payments and that Preston paid
the day care and schools instead of paying Victoria. In effect, the court found that
those payments were paid “to Victoria,” thus satisfying Preston’s child support
obligations.

      The structure of the final decree of divorce also supports such an implied
finding. The original decree of divorce ordered Preston to pay $240 a month to
Victoria and it also ordered him to pay $563 a month to Enron Kid’s day care.
After their child stopped going to Enron Kid’s day care, Preston continued to pay
$240 a month to Victoria and initially paid for another day care and then private
schools with after school day care.

      Relying on Chenault v. Banks, 296 S.W.3d 186 (Tex. App.—Houston [14th
Dist.] 2009, no pet.), the majority concludes that because a private agreement
between the parties as to child support is not enforceable, the trial court could not
find that Preston complied with his $800 per month child support obligation by
paying Victoria’s financial obligations for day care and school. In Chenault, the
father claimed that his payment of tuition to the Marine Military Academy of
$18,176.31 for one year should be a credit as to his past due child support
obligations for five years.1 However nothing in Chenault indicates that the father
was paying a tuition obligation incurred by the mother, and I would distinguish it
on that basis alone. In addition, the father in Chenault sought a five year credit for
that payment. Here, Preston continued to make his monthly obligations by paying
$240 a month and paid for monthly day care and then tuition and after school care,
totaling more than $800 per month.

      While I agree that parents must get court approval to modify child support
obligations, I would conclude that this is not a reduction or a modification of

      1
        Child support was ordered at $300 a month or $3,600 a year. The $18,176.31 would
have covered approximately five years of child support.

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Preston’s child support obligations but instead is merely a finding by the court that
Preston complied with his child support obligations. I would affirm the trial court’s
judgment. Because the majority does not, I respectfully dissent.




                                       /s/       Tracy Christopher
                                                 Justice


Panel consists of Justices Boyce, Christopher, and Brown. (Boyce, J., majority).




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