









02-10-159-CV



























COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
NO. 02-10-00159-CV
 
 



In the Interest of C.E.S.,
  Minor Child


 


 




 




 


 


 



 
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FROM THE 97th District Court OF Clay COUNTY
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OPINION
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I.  Introduction
The
sole issue that we address in this appeal is whether the defense of estoppel is
available in a suit to enforce unpaid child support brought by the Office of
the Attorney General (OAG) in its capacity as an
assignee.  Because we hold that estoppel is available as a defense in an
enforcement action brought by the OAG as an assignee
of a parent obligee, we will reverse and remand.
II.  Factual and Procedural Background
In
1993, Appellant Richard Lynn Scholer, Jr. fathered a
son, C.E.S., with Denise Louise Scholer.
 Denise divorced Richard in 1994 in California.  In the divorce
decree, the trial court ordered Richard to pay $450 per month in child support
“until further order of the court, the child dies, marries, is emancipated,
reaches the age of 19, or the age of 18 and is not a full time high school
student residing with a parent, whichever occurs first.” 
Richard
made payments of $450 a month for several months and then began paying $300 a
month upon the oral agreement of Denise.  Richard made payments through
1999.
In a
letter to Denise dated July 12, 2000, Richard explained his frustration at
being continually denied the opportunity to speak to C.E.S.
and to visit with him.  Richard asked Denise to confirm whether she wanted
him to be C.E.S.’s father and whether she no longer
needed his child support payments.  Approximately two weeks later, Richard
received a letter from Denise’s attorney, Michael Curtis, asking whether
Richard would be agreeable to signing an affidavit to terminate his parental
rights to C.E.S.  The letter stated, “As you are
aware, a termination of your rights would also terminate any support obligation
which you may have in the future.”
Two
months later, Curtis sent another letter to Richard, enclosing a revised “Father’s
Affidavit for Voluntary Relinquishment of Parental Rights” and asking Richard
to sign it in front of two witnesses and a notary and return it to Curtis. The
affidavit stated, among other things,
I am presently
obligated by court order to make payments for the support of the child.
 
. . . .
 
. . . I have been
informed that my parental rights, powers, duties, and privileges are as
follows:
 
. . . .
 
3.      
the duty to support the child, including providing the
child with clothing, food, shelter, medical and dental care, and education;
 
. . . .
 
I freely and
voluntarily give and relinquish to Denise Louise Wilbourn
all my parental rights and duties.
 
I fully understand
that a lawsuit will be promptly filed in a court of competent jurisdiction to
terminate forever the parent-child relationship between me and the child named
above. . . .
 
I know that I have
the right to appear personally before the Court, with an attorney of my choice,
to testify about my desires with respect to my child.  However, I do not
want to go to court in person and choose not to be represented by a
lawyer.  I want this Affidavit for Voluntary Relinquishment of Parental
Rights presented to the Court.
 
Because I do not want
to testify in person before the Court, I freely and voluntarily waive and give
up my right to the issuance, service, and return of citation, notice, and all
other process in any suit to terminate my parental rights or in any suit to
terminate my parental rights joined with a suit to adopt.  I do not want
to be informed further about the lawsuit.  I specifically agree that a
final hearing in the lawsuit may be held at any time without further notice to
me. . . .
 
. . . .
 
I FULLY UNDERSTAND
THAT I MAY NOT BE FURTHER INFORMED ABOUT THE TERMINATION SUIT OR ABOUT ANY
OTHER HEARINGS OR PROCEEDINGS AFFECTING THE CHILD NAMED IN THIS AFFIDAVIT. 
 
Richard
signed and returned the affidavit to Curtis and did not hear further from him
or Denise.[1]
 Richard assumed that his parental rights were terminated and discontinued
making child support payments.
Nine
years later, in September 2009, the OAG filed a
“Notice Of Registration Of Foreign Support Order (UIFSA)” in the 97th District Court of Clay County.
 The OAG also filed a “Motion For
Enforcement And Suit For Modification Of Support Order,” requesting that
the trial court confirm an arrearage from May 1994 through 2009.  Richard
answered with a general denial and pleaded several defenses, including the
affirmative defense of estoppel. 
The
trial court held a hearing on the OAG’s motion to
enforce and heard testimony from Denise and Richard.  Denise testified
that she never followed through with the termination, that she knew that the
termination did not “go through,” and that she did not feel that she had a duty
to notify Richard.  She also testified that she and Curtis had parted ways
after he sent the letter in 2000,[2]
that she had never tried to contact him, that she was not notified that Richard
had signed the affidavit, and that she did not see Richard’s affidavit of
relinquishment until December 2009.  She denied that a conspiracy existed
to have Richard “rack up a bunch of child support arrearages” while being
denied involvement in his son’s life.
Richard
testified that he had paid $11,725 in child support before he signed the
affidavit but that his bank did not have records dating back to 1994 to prove
all of his payments.  After signing the affidavit of relinquishment, he
did not expect to hear back because of the “no further notice” provision.
 He had no further contact with Denise or C.E.S.
after September 2000.  He had no knowledge that his parental rights had
not been terminated until 2009 when he received a notice that child support
would be deducted from his paycheck.  
After
hearing the testimony, the trial court signed an order confirming that Richard
was in arrears in the amount of $77,875 as of March 26, 2010.  The trial
court made findings of fact and conclusions of law, including a conclusion of
law that Richard’s defense of estoppel was not available.  Richard now
appeals from the trial court’s order modifying his child support payments and
confirming a $77,875 arrearage.
III.  Defense of Estoppel is Available
 
In
his sole point, Richard argues that the trial court erred by ruling that as a
matter of law the defense of estoppel is not available in a child support
enforcement suit brought by the OAG.  We review
a trial court’s conclusion of law de novo.   BMC
Software Belg., N.V. v. Marchand,
83 S.W.3d 789, 794 (Tex. 2002).
The OAG is Texas’s Title IV-D agency.  Tex.
Fam. Code Ann. § 231.001 (Vernon 2008).  As Texas’s Title IV-D
agency, the OAG may file suit for modification of
child support or a motion for enforcement of child support.  Id.
 § 102.007 (Vernon 2008), § 231.105(a) (Vernon Supp. 2010).  The
OAG sues to enforce child support based on an actual
or an implied assignment from the parent owed support, the obligee. 
Id. §§ 231.102, .104, .106, .107 (Vernon 2008); In
re T.L.K., 90 S.W.3d
833, 839–40 (Tex. App.—San Antonio 2002, no pet.) (explaining
that “[t]he OAG generally enforces child support
under an assignment of the support rights”); In re A.M.E., 71 S.W.3d
401, 402–03 (Tex. App.––San Antonio 2001, no pet.) (same); see also Office
of Attorney Gen. v. Crawford, 322 S.W.3d 858,
860–62 (Tex. App.—Houston [1st Dist.] 2010, pet. filed) (holding OAG lacked standing to file suit to modify existing child
support order to provide support for adult disabled children absent assignment
of support rights).  Child support payments assigned for collection to the
OAG must be made payable to the OAG. 
Tex. Fam. Code Ann. § 231.105(a); A.M.E.,
71 S.W.3d at 403.
Any
parent obligee under a support order may refuse Title
IV-D enforcement services unless required to accept such services pursuant to
other law.  See Tex. Fam. Code Ann. § 231.0011(c) (Vernon
2008).  A parent obligee is required to accept
such services upon approval of an application for or the receipt of financial
assistance as provided by chapter 31 of the Human Resources Code; approval of
an application or receipt of financial assistance constitutes an assignment to
the Title IV-D agency of any rights to support from any other person that the
applicant or recipient may have personally or for a child for whom the
applicant or recipient is claiming assistance.  Tex.
Fam. Code Ann. § 231.104(a).  
Because
the OAG as Texas’s Title IV-D agency brings suit to
collect child support pursuant to either an actual or implied assignment of the
child support order’s obligee, the OAG steps into the shoes of the assignor/obligee and takes the assigned rights subject to all
defenses the opposing party might be able to assert against the assignor/obligee.  Burns v. Bishop, 48 S.W.3d 459, 466 (Tex. App.––Houston [14th Dist.] 2001, no
pet.) (stating that “it is axiomatic that an assignee or subrogee
walks in the shoes of his assignor and takes the assigned rights subject to all
defenses which the opposing party might be able to assert against his
assignor”); Trueheart v. Braselton, 875
S.W.2d 412, 415 (Tex. App.––Corpus Christi 1994, no
writ); Irrigation Ass’n v. First
Nat’l Bank of Frisco, 773 S.W.2d
346, 348 (Tex. App.—Dallas 1989, writ denied); Vogt v. Jones, 396 S.W.2d 539, 540 (Tex.
Civ. App.––Fort Worth 1965, no writ).  In a private
child support enforcement suit brought by an obligee
parent against an obligor parent, the defense of estoppel is available.  See
Kawazoe v. Davila, 849 S.W.2d 906, 908–09 (Tex.
App.––San Antonio 1993, no writ) (holding “estoppel is available as a defense
and was properly proved in this case [an action to enforce child support]”); LaRue v. LaRue, 832
S.W.2d 387, 392–93 (Tex. App.––Tyler 1992, no writ)
(holding that “the trial court’s third conclusion of law pertaining to the
unavailability of the estoppel defense in the instant [child support enforcement]
case was erroneous”); see also Hall v. Hall, No. 09-06-00206-CV, 2007 WL
2127133, at *3 (Tex. App.—Beaumont July 26, 2007, no pet.) (mem. op.) (holding that
appellant’s conduct supported application of the equitable doctrine of estoppel
in suit between mother and father involving alleged child support
arrearage).  Thus, because the defense of estoppel is available to an
obligor in a suit for child support enforcement brought by the obligee, we hold that the OAG, as
the assignee of the obligee, is likewise subject to
the defense of estoppel.
The OAG in this appeal argues that in prosecuting a child
support enforcement suit as Texas’s Title IV-D agency, it is a state agency
performing a state function and, consequently, cannot be subject to the defense
of estoppel.  The OAG points to family code
section 231.109.  Tex. Fam. Code Ann. § 231.109(d)
(Vernon 2008).  That section is titled “Attorneys Representing
State” and provides in pertinent part,
(d)  An attorney
employed to provide Title IV-D services represents the interest of the state
and not the interest of any other party.  The provision of services by an
attorney under this chapter does not create an attorney-client relationship
between the attorney and any other party.  The agency shall, at the time
an application for child support services is made, inform the applicant that
neither the Title IV-D agency nor any attorney who provides services under this
chapter is the applicant’s attorney and that the attorney providing services
under this chapter does not provide legal representation to the applicant.
 
Id. 
This
statutory provision does not indicate that—in collecting child support pursuant
to an assignment of child support rights from Denise—the OAG
is performing a state function;[3]
it simply statutorily defines the parameters of the relationship between an
attorney employed to provide Title IV-D services and the individual receiving
the services. 
It
is true, as the OAG contends here, that as a general
rule when a unit of government is exercising its governmental powers, it is not
subject to estoppel.  See State v. Durham, 860 S.W.2d 63, 67 (Tex. 1993) (no estoppel against state
asserting right to royalties from mineral interest retained by state in
permanent school fund lands); City of Hutchins v. Prasifka,
450 S.W.2d 829, 835–36 (Tex. 1970) (no estoppel
against city exercising zoning power to classify land as residential); City
of San Antonio v. Pigeonhole Parking of Tex., 311 S.W.2d
218, 223 (Tex. 1958) (no estoppel against city to compel issuance of permit for
curb cut and a driveway across sidewalk); Tex. Co. v. State, 281 S.W.2d 83, 88–89 (Tex. 1955) (no estoppel against state
seeking recovery of public school lands improperly conveyed or value of
minerals produced from those lands); Rolison
v. Puckett, 198 S.W.2d 74, 77–78 (Tex. 1946) (no
estoppel against a city asserting a tax foreclosure); City of San Angelo v.
Deutsch, 91 S.W.2d 308, 310 (Tex. 1936) (no
estoppel against city to assert a tax lien).  The rationale for this
general rule is that a unit of government cannot be estopped
from exercising its governmental powers by the actions of its employees or
by those persons charged with administration of the unit of government:
 
The rule that a city
is not estopped by the mistakes or unauthorized or
wrongful acts of its officers or agents is thus stated in Ruling Case Law: “No
estoppel can grow out of dealings with public officers of limited authority,
and the doctrine of equitable estoppel cannot ordinarily be invoked to defeat a
municipality in the prosecution of its public affairs because of an error or
mistake of, or because of a wrong committed by, one of its officers or agents
which has been relied upon by a third party to his detriment.  So a
municipality is not estopped by the unauthorized acts
of its officer or agent, or by his wrongful act.  Nor can an estoppel
result from official fraud and corruption.”
 
City
of San Angelo, 91 S.W.2d at 310;
see also Durham, 860 S.W.2d at 68 (recognizing
that the acts and conduct of state’s officers and agents cannot estop state from recovering royalties from mineral interest
owned by state under permanent school fund lands).
The
rationale for the general rule that a unit of government cannot be estopped from exercising its governmental powers by the
actions of its employees or by those persons charged with administration of the
unit of government is not, however, applicable when the alleged estoppel is
based not on the action of the governmental employees but on the actions of an obligee who assigned child support rights to the OAG.  See Kawazoe, 849 S.W.2d
at 910–11 (holding estoppel applied based on mother’s fraudulent conduct in
leading father to believe his parental rights had been terminated); LaRue, 832 S.W.2d at
392–95 (holding estoppel applied based on mother’s conduct in failing to notify
father of her unilateral decision to not terminate father’s parental rights); see
also Hall, 2007 WL 2127133, at *3 (holding estoppel applied based on
mother’s conduct).  As previously mentioned, an assignee like the OAG takes the rights assigned to it subject to all defenses
that the opposing party might be able to assert against his assignor—in this
case, Richard’s right to assert the defense of estoppel against Denise.  See
Kawazoe, 849 S.W.2d at 910–11;
LaRue, 832 S.W.2d at
392–95.  It makes no sense to hold that the OAG,
suing on Denise’s behalf and asserting Denise’s child support rights by virtue
of her assignment, is not subject to the defense of estoppel but that if Denise
herself had filed the suit to enforce child support, she would have been
subject to the defense of estoppel. To so hold would encourage a parent who was
awarded child support to replicate what appears to have happened here—to
procure an affidavit of relinquishment from the obligor-parent, to never file
suit to terminate the obligor-parent’s parental rights, to wait for a child
support arrearage to accrue because the obligor-parent believes that his
parental rights have been terminated, to exclude the obligor from the child’s
life until the child is almost an adult or is an adult, to forego filing suit
on her own behalf because the defense of estoppel would apply, and to instead
make an assignment to the OAG to collect the child
support arrearage based on the assumption that the defense of estoppel does not
apply to the OAG.
Finally,
the provision of child support enforcement services does not seem to be an
exercise of sovereign power like the powers exercised by the state or by cities
in the Texas Supreme Court cases that recognize when a unit of government is
exercising its governmental powers, it is not subject to estoppel.  See
Durham, 860 S.W.2d at 67 (“the State in its
sovereign capacity” acting to collect royalties); City of Hutchins, 450 S.W.2d at 835–36 (city classifying land as residential); City
of San Antonio, 311 S.W.2d at 223 (city declining
to issue permit for curb cut and a driveway across sidewalk); Tex. Co.,
281 S.W.2d at 88–89 (state recovering public school
lands improperly conveyed or value of minerals produced from those lands); Rolison, 198 S.W.2d
at 77–78 (city asserting a tax foreclosure); City of San Angelo, 91 S.W.2d at 309 (city asserting tax lien). 
Two
courts of appeals that have addressed the issue of whether the defense of
estoppel is available in a suit against the OAG to
collect unpaid child support have answered the issue in the negative.  See
T.L.K., 90 S.W.3d
at  839–40; Rider v. Office of the Attorney Gen., No. 12-05-00418-CV,
2007 WL 3015455, at *5 (Tex. App.—Tyler Oct. 17, 2007, no pet.) (mem. op.).  The opinions of
our sister courts are not binding on us, and we decline to follow them because
they do not analyze or address the fact that the OAG
provides child support collection services pursuant to an assignment from the obligee or the fact that the OAG
is not performing a state function in collecting child support.  See,
e.g., Mitchell v. John Wiesner, Inc., 923 S.W.2d 262, 264 (Tex. App.––Beaumont 1996, no writ)
(holding opinions of sister court are not binding on other courts of appeal).[4]
The OAG also points to Reyna v. Attorney General of Texas,
863 S.W.2d 558, 558–59 (Tex. App.—Fort Worth 1993, no
writ) as supporting its position.  In Reyna, the OAG sued to determine paternity, to recoup public funds
expended on the child, and to collect child support; we held that the defense
of laches was not available in the paternity suit and
that because the OAG sued within limitations to
recoup public funds and to collect child support, “Reyna cannot assert the
defense of laches.”  Id.
at 559.  Thus, our holding in Reyna was limited to the
inapplicability of a pure time-driven laches defense;
we did not address whether the OAG was subject to the
defense of estoppel based on the conduct of the assignor/obligee. 
See Attorney Gen. of Tex. v. Duncan, 929 S.W.2d 567, 572 (Tex. App.––Fort Worth 1996, no writ)
(citing Reyna for the proposition that “laches
is not a defense available against the Attorney General in a paternity suit”).
         
Based on our de novo review, we hold that the trial court erred by concluding
as a matter of law that the defense of estoppel is not available to Richard in
the enforcement suit filed by the OAG as an assignee
of Denise’s rights to child support payment.  We sustain Richard’s sole
point.
IV.  Conclusion
         
Having sustained Richard’s sole point, we reverse the trial court’s judgment
and remand for the trial court to conduct a new hearing at which Richard may
present evidence on his affirmative defense of estoppel.
 
 
SUE WALKER
JUSTICE
 
PANEL: 
LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
 
DELIVERED:  June 2,
2011

 




[1]Neither
Richard’s attorney nor the attorney for the OAG
contacted Curtis to see if he had received Richard’s affidavit. 


[2]Denise
testified that Curtis “was in trouble for methamphetamines.” 


[3]The
OAG here filed only notice of registration of a
foreign (California) judgment and an enforcement action.  


[4]The
OAG also cites In re M.C.R., 55 S.W.3d
104, 107 (Tex. App.––San Antonio 2001, no pet.).  In M.C.R.,
the San Antonio Court of Appeals recognized that the OAG
possessed standing to appeal after it obtained a judgment in a child support
action pursuant to “the assignment of rights from Riou.” 
Id.  No holding in M.C.R.
conflicts with our holding here that the defense of estoppel is available in a
suit to enforce unpaid child support brought by the OAG
in its capacity as an assignee.  



