      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00517-CV



                               Peter William Gonzalez, Appellant


                                                 v.


                                  Linda Anne Tippit, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
          NO. 96-01185, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                                          OPINION


               Appellant Peter William Gonzalez challenges a trial court award of $13,400 in past

due child support payable to appellee Linda Anne Tippit. In two points of error, Gonzalez contends

that the trial court abused its discretion by denying his affirmative defense of voluntary

relinquishment of actual possession of the child in excess of court-ordered periods and his

counterclaims and requested offsets for actual support provided during the extra possession. Because

we hold that the trial court did not abuse its discretion in finding that Gonzalez failed to prove he

provided actual support, we need not reach his counterclaims for reimbursement and offsets for

actual support provided. We will affirm the judgment of the trial court.
                                            Background

               Gonzalez and Tippit are the natural parents of the child, a daughter, and have never

been married. On January 30, 1996, Gonzalez filed an Original Petition in a Suit Affecting the

Parent Child Relationship to establish his paternity and parental rights. Agreed temporary orders

were entered into on March 11, 1996, which provided that Gonzalez and Tippit would be joint

managing conservators and that Gonzalez would pay $200 each month in child support through the

Travis County Domestic Relations Office with court-ordered visitation of two six-hour periods and

one overnight period each week. Approximately two months after the entry of the temporary orders,

Tippit and the child moved in with Gonzalez and he stopped paying child support. The length of

time they lived together is disputed but appears to be between six and eight months from May or

June to November or December of 1996. Child support payments never resumed. At trial, Tippit

abandoned claims to any child support prior to September 1997. After Tippit moved out of

Gonzalez’s home, the parties mutually expanded Gonzalez’s visitation from that described in the

temporary order. Gonzalez asserts that the child has been living with him 50% of the time since

1996,1 and that he has provided $28,000 of support in the form of private school tuition. The parties

dispute whether Gonzalez made this payment. Tippit argues that the tuition was a gift from

Gonzalez’s brother to the child, while Gonzalez contends that his brother facilitated a bank loan for

which Gonzalez has assumed liability and made payments.




       1
          This claim was disputed at trial, but the trial court made no finding on the issue and Tippit
stipulates to Gonzalez’s statement of the facts concerning the child’s living situation in her brief.

                                                  2
                  Tippit filed her motion to enforce child support on March 11, 2003. At trial,

Gonzalez pled a statutory affirmative defense and counterclaimed for offsets. See Tex. Fam. Code

Ann. § 157.008 (West 2002).2 The district court held Gonzalez in contempt of court for failure to

pay child support from the period of September 1997 to May 2003, denied his offsets and

counterclaim, and assessed an arrearage of $13,400.3

                  Gonzalez claims that the trial court abused its discretion in holding him in contempt

and assessing the arrearage because the record was legally and factually insufficient to support the

court’s denial of his affirmative defense that Tippit had voluntarily relinquished the child to him for

more than the court ordered periods and that he had provided actual support during this time.



        2
            § 157.008 reads, in pertinent part, as follows:

            Affirmative defense to motion for Enforcement of Child Support.

            (a) An obligor may plead as an affirmative defense in whole or in part to a
                motion for enforcement of child support that the obligee voluntarily
                relinquished to the obligor actual possession and control of a child.

            (b) The voluntary relinquishment must have been for a time period in excess of
                any court ordered periods of possession of and access to the child and actual
                support must have been supplied by the obligor.
                  ...

            (d)    An obligor who has provided actual support to the child during a time
                  subject to an affirmative defense under this section may request
                  reimbursement for that support as a counterclaim or offset against the claim
                  of the obligee

Tex. Fam. Code Ann. § 157.008(a), (b), (d) (West 2002).
        3
            The trial court gave Gonzalez credit for two months in which the $200 in child support was
paid.

                                                    3
                                              Discussion

                Gonzalez argues that because he proved the voluntary relinquishment prong from

section 157.008, the trial court was required to presume actual support and rule in his favor. Tippit

argues that section 157.008 requires an obligor to show both voluntary relinquishment by the obligee

and actual support. Before we can analyze the sufficiency of the evidence, we must determine

whether the family code requires Gonzalez to prove he provided actual support.

                Statutory construction is a matter of law, which we review de novo. City of San

Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). The primary rule of statutory

interpretation is to give effect to the intent of the legislature. Fleming Foods of Tex. Inc. v. Rylander,

6 S.W.3d 278, 284 (Tex. 1999); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.

1994). Texas courts must consider, among other factors, the language of the statute, legislative

history, the nature and object the legislature intended to be obtained, and the consequences that

would follow from alternative constructions, even when a statute is not ambiguous on its face. Tex.

Gov’t Code Ann. § 311.023 (West 1998); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.

2001); United Servs. Auto Ass’n v. Strayhorn, 124 S.W.3d 722, 728 (Tex. App.—Austin 2003, pet.

denied). We consider disputed provisions in context, not in isolation. Texas Workers' Comp.

Comm'n v. Continental Cas. Co., 83 S.W.3d 901, 905 (Tex. App.—Austin 2002, no pet.); see

Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex. 1999).

                Section 157.008 provides an affirmative defense to a motion to enforce child support

if the obligee voluntarily relinquished actual possession and control of the child to the obligor in

excess of court-ordered visitation and the obligor supplies actual support during this period. Tex.



                                                    4
Fam. Code Ann. § 157.008(a).         An obligor who has provided actual support may request

reimbursement for that support as a counterclaim against the obligee or may ask that it be calculated

as an offset against the obligee’s claim of arrearage. Id. § 157.008 (b).

                Section 157.008 explicitly delineates an “affirmative defense” in cases of voluntary

relinquishment. Id. § 157.008(a). The family code places the burden of proof on affirmative

defenses to child support enforcement upon the obligor. Id. § 157.006.4 Indeed, the burden of

pleading and proving an affirmative defense traditionally falls upon the party asserting it. See Tex.

R. Civ. P. 94. (West 2002) (party asserting affirmative defense must affirmatively “set [it] forth” and

plead it); Brownlee v. Brownlee 665 S.W.2d 111, 112 (Tex. 1984) (defendant must show fact issue

on every element of affirmative defense to avoid summary judgment); Austin State Hosp. v. Kitchen,

903 S.W.2d 83, 91 (Tex. App.—Austin 1995, no writ) (defendant bears burden of proving

affirmative defense).

                This affirmative defense has two prongs: the voluntary relinquishment must have been

in excess of court-ordered possession and access periods and the obligor must have provided actual

support. Tex. Fam. Code Ann. § 157.008(b). These requirements are not alternatives but are


       4
           Affirmative Defense to Motion for Enforcement

           (a) The issue of the existence of an affirmative defense to a motion for
               enforcement does not arise unless evidence is admitted supporting the
               defense.

           (b) The respondent must prove the affirmative defense by a preponderance of
               the evidence.

Tex. Fam. Code Ann. § 157.006 (West 2002).


                                                  5
conjunctively tied together with “and”; the defendant must show both in order to prevail. Also,

identical mandatory language precedes both prongs of the affirmative defense. Id. We believe that

the legislature, in explicitly labeling the argument an affirmative defense, using the conjunctive

“and,” and using the same mandatory language, intended to require the obligor asserting the defense

to prove both voluntary relinquishment and actual support in order to prevail. There is nothing in

the language of the statute from which we can infer that the legislature intended courts to presume

support once they have made a finding of relinquishment.

                Section 157.008 is a re-enactment of the prior Texas Family Code section 14.41(c).5

Gonzalez argues that the change in language between the two statutes requires us to jettison all prior

precedent interpreting those statutes, and that it removes the obligor’s burden to show actual support

paid. Tippit contends that the relevant statutory language and the allocation of burdens have not

substantially changed. To determine the effect of the statutory change in language, we compare the


       5
           Former Texas Family Code § 14.41(c) provided as follows:

           Possession of child by Obligor. If the managing conservator has voluntarily
           relinquished to the obligor the actual care, control, and possession of a child for
           a time period in excess of the court ordered periods of possession of and access
           to the child, the child support order continues unabated until further order of the
           court as provided by Section 14.08 of this code. However, an obligor who has
           provided actual support to the child during such time periods may seek
           reimbursement for that support as a counterclaim or offset against the claim of
           the managing conservator. An action against the managing conservator for
           support supplied to a child shall be limited to the amount of periodic payment
           previously ordered by the court.

           Act of May 27, 1985, 69th Leg., R.S., ch. 232, § 9, 1985 Tex. Gen. Laws 1158,
           1163, repealed and reenacted by Acts of April 6, 1995, 74th Leg., R.S., ch. 20,
           §1, 1995 Tex. Gen. Laws 113, 177, current version at Tex. Fam. Code Ann.
           § 157.008 (West 2002).

                                                   6
two statutes in context. Continental Cas. Co, 83 S.W.3d at 905; Strayhorn, 124 S.W.3d at 728.

When the legislature reenacted the affirmative defense provision, it omitted the phrase, “the child

support order continues unabated until further order of the court as provided in section 14.08 of this

code.” See Act of May 27, 1985, 69th Leg., R.S., ch. 232, § 9, 1985 Tex. Gen. Laws 1158, 1163,

repealed and reenacted by Acts of April 6, 1995, 74th Leg., R.S., ch. 20, §1, 1995 Tex. Gen. Laws

113, 177, current version at Tex. Fam. Code Ann. § 157.008 (West 2002). The excluded phrase

specifically refers to former section 14.08, which was repealed. Act of April 6, 1995, 74th Leg.,

R.S., ch. 20, § 1, 1995 Tex. Gen. Laws, 113, 282.

                Although the legislature changed the language from these two statutes, the family

code still requires a court order to modify child support. See Tex. Fam. Code Ann. § 154.124 (West

Supp. 2004-05);6 Sudan v. Sudan, 145 S.W.3d 280, 285 (Tex. App.—Houston [14th Dist] 2004, pet.


       6
           Agreement Concerning Support

           (a) To promote the amicable settlement of disputes between the parties to a suit,
               the parties may enter into a written agreement containing provisions for
               support of the child and for modification of the agreement, including
               variations from the child support guidelines provided by Subchapter C.
               [footnote omitted].

           (b) If the court finds that the agreement is in the child’s best interest, the court
               shall render an order in accordance with the agreement.

           (c) Terms of the agreement pertaining to child support in the order may be
               enforced by all remedies available for enforcement of a judgment, including
               contempt, but are not enforceable as a contract.

           (d) If the court finds the agreement is not in the child’s best interest, the court
               may request the parties to submit a revised agreement or the court may
               render an order for the support of the child.


                                                    7
filed) (“In Texas, the Legislature has explicitly required that parental agreements concerning child

support be expressly approved by the court.”); In re M.C.R., 55 S.W.3d 104, 109 (Tex. App.—San

Antonio, 2001, no pet.) (“[E]ven parents of the child may not settle support claims until after the

arrearages have been confirmed and cumulated in a money judgment or until the trial court has lost

jurisdiction to enforce the unpaid support debt.”); In re D.S., 76 S.W.3d 512, 517 (Tex.

App—Houston [14th Dist] 2002, no pet.) (“Once child support is set, even with automatic increases,

and no appeal is taken, the child support is fixed until modified upon application.”). Whatever the

effect of the change in language, it is clear that a child support judgment remains in force unless and

until a court order changes it. We do not believe that the legislature’s omission of the repetition of

this language from former section 14.08 in section 157.008 nullified in any way its effectiveness,

particularly as the legislature reaffirmed the practical result of the rule in section 154.124.

Furthermore, Gonzalez does not explain how the omission of the language has any effect upon the

allocations of burdens in proving this affirmative defense. Considering that the code explicitly

requires the obligor to “prove the affirmative defense by a preponderance of the evidence,” it does

not appear to us that the legislature intended to alter the burdens of proof for child support

affirmative defenses.

               Gonzalez argues that we should follow the Corpus Christi court’s holding in In re

A.M., 101 S.W.3d 480, 487 (Tex. App.—Corpus Christi 2003, no pet.), that after section 14.41(c)

was reenacted as section 157.008, the legislature must not have intended to require any proof or

accounting of expenses because it omitted the phrase, “the child support order continues unabated



Tex. Fam. Code Ann. § 154.124 (West Supp. 2004-05).

                                                  8
until further order of the court as provided in section 14.08 of this code.” Id. We believe Gonzalez

overstates the holding in A.M. Although the court offered no analysis of the current language of the

statute, it is true that the court believed that the legislature intended to change the practice of forcing

an obligor in possession of the child to produce “an exact accounting of expenditures.”7 Id. at 487.

However, the court did not address the argument presented here, that support may be presumed upon

a showing of voluntary relinquishment beyond that granted by the court. Rather, the court was

rejecting a requirement that the obligor prove an itemized account of expenditures to establish actual

support. Id. at 486-87. In this respect, our opinions are not in conflict; the question of how an

obligor may carry his burden of proving he provided actual support is not before us.8

                Our reading of section 157.008 is similar to that in Curtis v. Curtis, 11 S.W.3d 466

(Tex. App.—Tyler 2000, no pet.).9 Curtis acknowledged the changes in the statute and held that the

obligor pleading the affirmative defense is still responsible for proving actual support in addition to



        7
        “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.” In re A.M., 101 S.W.3d 480, 487 (Tex.
App.—Corpus Christi 2003, no pet.).
        8
          Moreover, insofar as A.M. can be read to no longer require an obligor to provide any proof
of actual support during periods of excess relinquishment, such language is dicta. In A.M. the trial
court filed findings of fact that the children were relinquished in excess of court-ordered access
periods, that the obligee provided no support, and that the obligor did pay actual child support during
those periods; these findings were not attacked or challenged in the trial court or in the original brief
in the appeal. In re A.M., 101 S.W.3d at 486. Because the trial court in A.M. found actual support
and no party challenged that finding on appeal, the case did not present a question regarding whether
the court should presume support in a case in which there was proof of relinquishment but not of
actual support.
        9
          A.M. criticizes Curtis’s reliance on precedent from before the change in the statute, but
distinguishes Curtis because it does not reach the issue in A.M., which was what the amount of the
offsets should be. In re A.M., 101 S.W.3d at 487.

                                                    9
voluntary relinquishment in excess of the court-ordered periods. Id. at 473-474; see Buzbee v.

Buzbee, 870 S.W.2d 335, 339 (Tex. App.—Waco 1994, no writ). Under Curtis’s and our reading

of the statutes, the change in language did not change the division of burdens between the two

parties. 11 S.W.3d at 472. The obligee bears the burden of proving that child support was due and

not paid. Id. at 471. Once the obligee has met that burden, the obligor may plead the affirmative

defense of section 157.008 and bears the burden of proving the elements of the defense—voluntary

relinquishment in excess of court-ordered periods and the payment of actual support. Id. at 472; see

Buzbee, 870 S.W.2d at 339. If the obligor fails to prove either arm of the defense, he or she fails to

prove the claim. Curtis, 11 S.W.3d. at 473-74.

               Although the level of proof required to show actual support is fairly low, the obligor

pleading the affirmative defense must provide some proof. Id. at 473; see Reinhold v. Reinhold, 790

S.W.2d 404, 406 (Tex App.—Houston [14th Dist] 1990, no writ) overruled on other grounds, Bruni

v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996) (evidence of household expenses divided by number of

persons in household sufficient to sustain offset when child lived with obligor father full time).

Requiring an obligor to present evidence of support is particularly valuable in those cases in which

the amount of time a child spent with an obligor parent is indeterminate. Even here, though Tippit

does not contest possession, it does not necessarily follow that in having 50% of possession an

obligor has been providing a full 50% of support. This reading also addresses the practical concern

that, without some evidence of the amount of money spent, courts, which are still required to

calculate arrearages, will have no reliable way to calculate actual support deductible from those

arrearages. See Lewis v. Lewis, 853 S.W.2d 850, 855 (Tex. App.—Houston [14th Dist] 1993, no



                                                 10
writ) (holding that without expenditure evidence, court was unable to consider and apply offset and

counterclaim).

                 We hold that obligors asserting this affirmative defense must plead and prove both

prongs of section 157.008.


                                          Gonzalez’s claim

                 Gonzalez contends that the record was legally and factually insufficient for the court

to deny his affirmative defense because there was no probative evidence that would support the

denial of the defense and such a great weight and preponderance of evidence in support of it as to

make the court’s denial an abuse of discretion. See In re Estate of King, 244 S.W.2d 660, 660 (Tex.

1951); Echols v. Olivares, 85 S.W.3d 475, 476-77 (Tex. App.—Austin 2002, no pet.); Burtch v.

Burtch, 972 S.W.2d 882, 888-89 (Tex. App.—Austin 1998, no pet.); Lindsey v. Lindsey, 965 S.W.2d

589, 591 (Tex. App.—El Paso 1998, no pet.). He argues that the legal and factual insufficiency of

the evidence in support of rejecting his affirmative defense, voluntary relinquishment, requires the

reversal of the trial court’s child support order. An order affecting child support, however, is not

easily overturned; the complaining party must show a clear abuse of discretion. Worford v. Stamper,

801 S.W.2d 108, 109 (Tex. 1990).

                 In reviewing the legal sufficiency of the evidence, an appellate court considers only

the evidence that supports the trial court’s finding and disregards all evidence and inferences to the

contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Jenkins v. Jenkins, 16 S.W.3d 473, 477

(Tex. App.—El Paso 2000, no pet.).           If any probative evidence supports the trial court’s

determination, it must be upheld. Estate of King, 244 S.W.2d at 661-62.

                                                  11
                In reviewing the factual sufficiency of the evidence, we examine all the evidence and

reverse only if the trial court’s finding is so against the great weight and preponderance of the

evidence as to be manifestly unjust. Id. at 660; Burtch, 972 S.W.2d at 888; Lindsey, 965 S.W.2d at

591. A reviewing court cannot substitute its conclusions for those of the trial court if there is

sufficient competent evidence of probative force to support the trial court’s findings. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985); Southwestern Bell Tel. Co. v.

Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Abernathy v. Fehlis, 911 S.W.2d 845, 848 (Tex.

App.—Austin 1995, no writ).

                Where, as here, the sufficiency of the evidence and abuse of discretion standards of

review both apply, we employ a hybrid analysis in which a determination of the sufficiency of the

evidence provides guidance in determining if the action of the trial court was so against the great

weight and preponderance of the evidence as to be manifestly unjust. Estate of King, 244 S.W.2d

at 660; Echols, 85 S.W.3d at 477; Burtch, 972 S.W.2d at 888. In applying this standard, we engage

in a two-pronged inquiry: (1) whether the trial court had sufficient information upon which to

exercise its discretion; and (2) whether the trial court erred in its application of discretion by making

a decision that was arbitrary or unreasonable based on the evidence elicited. Echols, 85 S.W.3d at

477-78; Lindsey, 965 S.W.2d at 592. A traditional sufficiency review is incorporated in the first

prong of this hybrid appellate review. Echols, 85 S.W.3d at 478.

                Gonzalez’s argument is that he need only show there was no probative evidence to

rebut his allegation that Tippit had voluntary relinquished the child in excess of the court ordered

period, and that he is entitled to an inference of support thereafter; since the increase in possession



                                                   12
is uncontested, he asserts that there were no grounds to deny the defense. However, having

determined that Gonzalez bore the burden of proving both prongs of his affirmative defense, we hold

that he must show that there was no probative evidence on which the court could have denied his

claim for failure to meet either prong of the defense. Estate of King, 244 S.W.2d at 661-62; Curtis,

11 S.W.3d at 473-74.

                As proof of actual support, Gonzalez testified that he paid private school tuition for

his daughter at Tippit’s request through a bank loan his brother facilitated. In her testimony, Tippit

denied that she requested the tuition, claiming the private school was Gonzalez’s idea, and denied

that Gonzalez paid anything, claiming instead that the tuition was a gift from Gonzalez’s brother.

The brother did not testify and no loan paperwork or other receipts were submitted to the trial court.

                In a legal sufficiency review, we look only to the evidence and inferences that support

the trial court’s decision. Garza, 395 S.W.2d at 823; Jenkins, 16 S.W.3d at 477. In the face of

Tippit’s testimony, it is not possible for us to say that there was no probative evidence to support the

trial court’s finding, and we must hold the evidence legally sufficient. See Curtis, 11 S.W.3d at 474;

Buzbee, 870, S.W.2d at 340. Nor can we say that, when examined in a neutral light, the trial court’s

finding is so against the great weight and preponderance of the evidence as to be manifestly unjust

and therefore factually insufficient. Estate of King, 244 S.W.2d. at 660; Burtch, 972 S.W.2d at 888.

The trial court is the sole judge of credibility; it was well within its discretion to believe Tippit’s

account and not Gonzalez’s. McGalliard v. Kuhlman, 722 S.W.2d 964, 697 (Tex. 1986). We

therefore hold that (1) there was sufficient information upon which the trial court could exercise its

discretion in determining that Gonzalez did not carry his burden of showing he provided actual



                                                  13
support, and (2) the trial court’s decision was not arbitrary or unreasonable based upon the evidence

elicited. See Echols, 85 S.W.3d at 477-78; Lindsey, 965 S.W.2d at 592.

               Because we have held that Gonzalez must prove both prongs of section 157.008 and

that it was within the trial court’s discretion to find against Gonzalez on the second prong, we need

not determine whether there was any evidence to counter his assertion that Tippit voluntarily

relinquished the child to him for periods in excess of court-ordered visitation. Even assuming that

he conclusively proved voluntary relinquishment, the court could have reasonably determined that

he did not prove actual support and rejected his affirmative defense.

               We hold that the trial court did not abuse its discretion in denying Gonzalez’s

affirmative defense, and we need not address his counterclaims for offsets based upon that defense.


                                            Conclusion

               Because Gonzalez failed to meet his burden of proving the second prong of the

statutory affirmative defense to a motion to enforce child support, the trial court did not abuse its

discretion in denying his affirmative defense or counterclaims and offset demands. We affirm the

judgment of the trial court.




                                              __________________________________________

                                              David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: June 10, 2005


                                                 14
