









Opinion filed March 23, 2006












 








 




Opinion filed March 23, 2006
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh Court of Appeals
                                                                   __________
 
                                                          No. 11-04-00293-CV 
 
                                                    __________
 
                              IN
THE INTEREST OF V.R.N., A CHILD
 

 
                                          On
Appeal from the 70th District Court
 
                                                           Ector
County, Texas
 
                                                  Trial
Court Cause No. A52350
 

 
                                                                   O
P I N I O N
 
This is a child support enforcement action
instigated by the attorney general=s
motion to confirm child support arrearage. 
The trial court rendered judgment finding that appellant, Frank Novak,
owed $54,253.05 in arrears.  Appellant
challenges that judgment on several grounds. 
We find no error and affirm. 
                                                               Background
Facts




Frank Novak and Roxanna Novak Mitchell were
divorced in 1978, and appellant was ordered to pay $200 per month in child
support.  In 1989, the attorney general
instituted enforcement proceedings.  The
trial court held a hearing; and, on November 20, 1989, it found that appellant
owed $25,000 in back child support and ordered him to pay the arrearage, plus
10% interest, at the rate of $100 per month until child support
terminated.  Thereafter, appellant=s arrearage payments were to increase
to $300 per month.  The trial court also
ordered income withholding.
The attorney general subsequently filed a notice
of termination of assignment, and the trial court redirected all support
payments to the mother.  The attorney
general later requested and the court served copies of the withholding order on
appellant=s
employers in 1990 and 1995.  Appellant=s child turned eighteen on February 8,
1995.  Withholding continued until 1997
and resumed again in 2002.  Also in 2002,
the attorney general redirected payments from the local child support registry
to the state disbursement unit, and it issued a writ of withholding for $450
per month.  Withholding under this writ
continued until 2004.  
In 2004, the attorney general moved to confirm
appellant=s arrears
and reduce them to judgment.  The trial
court held a hearing and entered judgment against appellant, finding that he
owed $54,253.05 in back child support.
                                                                         Issues
Appellant challenges the trial court=s order with four issues.  In the first two issues, appellant contends
that the trial court violated the statute of limitations and unconstitutionally
applied Family Code amendments retroactively by including the unpaid portion of
the 1989 arrearage judgment in its calculations.  Appellant also argues that interest was
improperly calculated and that the trial court erroneously held that he could
not raise laches as a defense.  Appellant
raises questions of law in all of his issues; therefore, the issues will be
reviewed de novo.  Hayhoe v. Henegar,
172 S.W.3d 642, 645 (Tex. App.CEastland
2005, no pet.).
                                             Was
the 1989 Arrearage Judgment Stale?




  Appellant
contends that the 1989 arrearage judgment became stale no later than November
15, 1999, pursuant to Section 34.001 of the Civil Practice and Remedies
Code.  This statute provides that, A[i]f a writ of execution is not issued
within 10 years after the rendition of a judgment of a court of record or a
justice court, the judgment is dormant and execution may not be issued on the
judgment unless it is revived.@  Tex.
Civ. Prac. & Rem. Code Ann. '
34.001(a) (Vernon 1997).  If a judgment
becomes dormant, it may be revived for two years by scire facias or by an
action of debt.  Tex. Civ. Prac. & Rem. Code Ann. '
31.006 (Vernon 1997).  Appellant contends
that this provision is inapplicable because no attempt was made to enforce or
revive the 1989 arrearage judgment after it became stale until the attorney
general filed a motion to confirm arrearage in 2004. 
The attorney general argues that child support
judgments never become dormant  because
the Family Code authorizes withholding until all child support and child
support arrearages have been paid.  See
Tex. Fam. Code Ann. ' 158.102 (Vernon 2002), ' 158.502(a) (Vernon Supp. 2005).  The attorney general reasons that, because a
writ of garnishment may not issue on a dormant judgment, First National Bank
v. Guinn, 57 S.W.2d 880, 882 (Tex. Civ. App.CEastland
1933, no writ), and wage withholding is comparable to a writ of garnishment, a
child support judgment by necessity can never become dormant.
Alternatively, the attorney general argues that
its collection efforts were sufficient to keep the judgment from becoming
dormant.  When the 1989 arrearage
judgment was entered, the trial court ordered withholding for child support.  Certified copies of the withholding order
were served on appellant=s
employers on December 11, 1989; June 7, 1990; and March 30, 1995.  Child support was withheld from appellant=s paychecks from 1989 to 1997 and again
for a period of approximately two years beginning in 2002.
Section 34.001(a) of the Civil Practice and
Remedies Code provides that a judgment becomes stale if a Awrit of execution@ is not issued within ten years of
rendition.  Texas cases have interpreted
this provision to allow a variety of judgment collection activities to revive a
judgment.[1]  Garnishment is a mode of judgment
enforcement.  Baca v. Hoover, Bax,
& Shearer, 823 S.W.2d 734, 740 (Tex. App.CHouston
[14th Dist.] 1992, writ denied); Tom Benson Chevrolet Co. v. Beall, 567
S.W.2d 857, 859 (Tex. Civ. App.CSan
Antonio 1978, writ ref=d
n.r.e.).  Because the 1989 arrearage
judgment was enforced almost continually by wage withholding, we hold that it
did not become dormant.  See also In
re E.D., 102 S.W.3d 859, 861 (Tex. App.CCorpus
Christi 2003, no pet.)(issuance of administrative writ of withholding revives a
dormant judgment).  




We recognize that, in 1899, the Court of Civil
Appeals held that a writ of garnishment was not a writ of execution that could
keep a judgment from becoming dormant.  Shields
v. Stark, 51 S.W. 540 (Tex. Civ. App.CFort
Worth 1899, no writ).  This was decided
well before the adoption of the Family Code and the current scheme of child
support collection through wage withholding and is, therefore, not controlling.  Moreover, our decision today is consistent
with the legislature=s
desire, as expressed in Section 34.001, that creditors use diligence to collect
their claims and the legislature=s
desire, as expressed in the Family Code, that child support be paid and
collected.  So long as an arrearage
judgment is being paid with income withholding, there is no need for the State
or the custodial parent to take any further action, and neither the judgment
debtor nor his other creditors are likely to be misled about his
obligation.  Appellant=s first issue is overruled.
Our holding makes it unnecessary for us to address
the attorney general=s
contention that child support judgments never become dormant.  It is also unnecessary for us to address
appellant=s
arguments that subsequent amendments to the Family Code may not be applied
retroactively to revive a dormant judgment because the 1989 arrearage judgment
did not become stale.  Appellant=s second issue, therefore, is
overruled. 
Finally, it is unnecessary for us to address
either party=s
contentions concerning whether the attorney general is a real party or if its
presence as a party results in a different application of the law.[2]  Appellant=s
fourth issue is also overruled.




In the third issue, appellant alleges the trial
court improperly calculated interest because some of his payments were
improperly classified as child support payments rather than arrearage
payments.  The original child support
order required appellant to pay support until his daughter turned eighteen or
until further order of the court. 
Appellant=s
daughter turned eighteen on February 8, 1995. 
Appellant contends that his obligation was never extended and, thus, all
subsequent payments should have been applied entirely to his arrearage but that
his payments through the end of the 1995 school year were treated as regular
child support payments.  This resulted in
a $700 principal-calculation error.  The
attorney general answers that this issue was not presented to the trial court
and, thus, is not preserved for appeal. 
The attorney general is correct. 
Because this issue was not presented to the trial court, it may not be
raised for the first time on appeal.  Tex. R. App. P. 33.1(a); Lozano v.
State, 978 S.W.2d 645, 647 (Tex. App.CEastland
1998, no pet.).  Appellant=s third issue is overruled.
                                                                      Conclusion
The trial court properly included the unpaid
portion of the 1989 arrearage judgment when it confirmed appellant=s child support arrearage in 2004, and
it properly calculated appellant=s
arrearage.  The trial court=s judgment is affirmed.
 
 
RICK STRANGE
JUSTICE
 
March 23, 2006
Panel
consists of: Wright, C.J., and
McCall,
J., and, Strange, J.




     [1]See,
e.g., Swafford v. Holman, 446 S.W.2d 75, 80 (Tex. Civ. App.CDallas 1969, writ ref=d
n.r.e.)(order of sale); Williams v. Masterson, 306 S.W.2d 152, 155-56
(Tex. Civ. App.CHouston 1957, writ ref=d n.r.e.)(writ
of possession); Grissom v. F. W. Heitmann Co., 130 S.W.2d 1054, 1056-57 (Tex.
Civ. App.CGalveston 1939, writ ref=d)(alias
execution); and Ludtke v. Bankers=
Trust Co., 251 S.W. 600, 604 (Tex.
Civ. App.CGalveston 1922, writ ref=d)(writ
of venditioni exponas).


     [2]Appellant
contends that, because the child has reached majority and all of the money
being collected is going to the mother, then statutory provisions such as Tex. Civ. Prac. & Rem. Code Ann. ' 16.061 (Vernon Supp. 2005), which allows the State to revive a
stale judgment for more than two years, do not apply.  Both parties also briefed issues such as
whether limitations and laches are applicable given the attorney general=s presence.


