Beistel v. Allen

Beistel v. Allen (Tex.App.-Houston [1st Dist.] May 31, 2007)(Bland)

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Before Chief Justice Radack, Justices Jennings and Bland

Elizabeth Beistel v. Robert Theodore Allen, Jr.
Appeal from 246th District Court of Harris County

Opinion issued May 31, 2007

MEMORANDUM OPINION BY JUSTICE BLAND

Appellant Elizabeth Beistel appeals the trial court’s termination of two wage-withholding orders against appellee Theodore Allen. In four issues, Beistel contends (1) the trial court lacked subject matter jurisdiction to terminate the wage-withholding orders, (2) Beistel was an indispensable party to the termination hearing, (3) the trial court abused its discretion in terminating the wage-withholding orders because the evidence is legally and factually insufficient to support the trial court’s findings that Allen overpaid his child support obligation and that no child support was due and owing, and (4) the trial court terminated the wage-withholding orders based on an incorrect legal theory. We conclude that (1) the trial court had jurisdiction to terminate the wage-withholding orders, (2) Beistel made a general appearance at the termination hearing, and (3) the trial court abused its discretion in terminating the wage-withholding orders. We therefore reverse.
Background

In May 1986, Beistel and Allen obtained a divorce in Ohio. The Ohio court ordered Allen to pay forty-five dollars a week in child support for each of the couple’s two children. Allen moved to Texas shortly after the divorce.
In 1988, 1994, and 2000, Beistel obtained judgments in Texas against Allen under the Uniform Reciprocal Enforcement of Support Act and the Uniform Interstate Family Support Act (UIFSA). The judgments state the amount Allen owes in child support arrearages, and order Allen to make payments toward the arrearages. To enforce the judgments, the trial court issued a judicial writ of withholding in 1994, and the Texas Attorney General issued an administrative writ of withholding in 2001. Both require Allen’s employer to withhold his current child support payments and a portion of the arrearages from his paychecks.
In 2005, Allen petitioned the trial court to terminate the wage-withholding orders. The Texas Attorney General intervened. The trial court held a hearing at which Allen, the Attorney General, and counsel for Beistel were present. At the time of the hearing, both of Beistel and Allen’s children were over the age of eighteen. Beistel filed a special appearance, which the trial court granted. Beistel’s counsel limited her participation at the hearing in an attempt to avoid making a general appearance. At the end of the hearing, the trial court terminated the wage-withholding orders and entered findings of fact and conclusions of law.
Subject Matter Jurisdiction
In her first issue, Beistel contends the trial court lacked subject matter jurisdiction to terminate the wage-withholding orders.

A. Invoking Jurisdiction

Beistel first contends that the trial court lacked jurisdiction to terminate the wage-withholding orders because Allen failed to file a pleading to invoke the trial court’s jurisdiction. Allen responds that he filed a petition to terminate the wage-withholding orders on June 17, 2005.
Texas Family Code section 102.002 provides that “[a]n original suit begins by the filing of a petition as provided by this chapter.” Tex. Fam. Code Ann. § 102.002 (Vernon 2002); In re A.M., 936 S.W.2d 59, 63 (Tex. App.—San Antonio 1996, no writ) (“A suit affecting the parent-child relationship commences by the filing of a petition.”). Issues concerning wage-withholding orders may be determined in a suit filed pursuant to section 102.002. See Tex. Fam. Code Ann. §§ 102.001(b), 102.002, 158.001 (Vernon 2002).
The record contains Allen’s petition to terminate the wage-withholding orders, and a time stamp at the top of the petition denotes that it was filed on June 17, 2005. The petition addresses both wage-withholding orders and their respective cause numbers, and requests that the trial court terminate them both. We therefore hold that Allen’s petition was sufficient to invoke the trial court’s jurisdiction to adjudicate a dispute over the wage-withholding orders.

B. Jurisdiction to Modify or Reduce Arrearages

Beistel next contends that the trial court lacked jurisdiction to modify or reduce the amount of child support arrearages owed by Allen.
Child support orders issued in another state and registered in Texas are enforceable in the same manner and are subject to the same procedures as child support orders issued by Texas courts. Id. § 159.603(b) (Vernon 2002). Texas courts, however, are not permitted to modify child support orders issued by other states except under particular circumstances specified in Family Code section 159.611. Id. § 159.603(c), § 159.611 (Vernon Supp. 2006).
Here, the rules applicable to the trial court’s ability to modify an out-of-state child support order do not apply. See id. § 159.611. The trial court in this case did not modify the Ohio child support order; it simply terminated the two wage-withholding orders issued in Texas. The trial court in this case issued the judicial writ of withholding in 1994, and the Texas Attorney General issued the administrative writ of withholding in 2001. See id. §§ 102.001(b), 102.002, 158.001. We therefore hold that the trial court had jurisdiction to modify or terminate the wage-withholding orders. See id.; see also id. § 158.404 (Vernon 2002) (“If a court has rendered an order that reduces the amount of child support to be withheld or terminates withholding for child support, any person or governmental entity may deliver to the employer a certified copy of the order without the requirement that the clerk of the court deliver the order.”).

Indispensable Party

In her second issue, Beistel contends that the trial court erred in terminating the wage-withholding orders after granting her special appearance because she was an indispensable party to the termination hearing. Allen responds that Beistel is estopped from asserting that she was an indispensable party to the termination hearing because she made a general appearance at the hearing through counsel.
A party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court. Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004); Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998); Xenos Yuen v. Fisher, No. 01-06-00010-CV, 2007 WL 529362, at *4 (Tex. App.—Houston [1st Dist.] Feb. 22, 2007, no pet.). “Every appearance, prior to judgment, not in compliance with [the special appearance] rule is a general appearance.” Tex. R. Civ. P. 120a(1).
In this case, Beistel’s counsel attended the termination hearing and made the following statement when Allen attempted to admit a spreadsheet demonstrating that he had paid his entire child support obligation: “Your Honor, if they are offering it as a shorthand rendition of what he says got paid, I guess the Court could accept it on that basis. Otherwise, I’d object that it’s hearsay.” The trial court did not rule on the objection, but admitted the spreadsheet for the limited purpose of serving as a shorthand rendition of Allen’s testimony. Later in the hearing, the trial court was about to ask Beistel’s counsel if she wanted to cross-examine a witness when the following exchange occurred:

[Trial Court:] Okay. Ms. Quinn, I’m not sure you’re here, but maybe you are.

[Beistel’s Counsel:] I’ll be here.

[Allen’s Counsel:] I don’t think she’s here, Judge.

[Trial Court:] It may be waiving a previously granted Special Appearance.

[Allen’s Counsel:] Right.

[Trial Court:] I just see it as a legal issue. I’m not saying you are, but discretion being the better part of—

[Beistel’s Counsel:] Okay. I’ll keep my mouth shut.

[Trial Court:] If you remain moot, [sic] you won’t have a problem.

[Beistel’s Counsel:] I would agree with that, Judge.

[Trial Court:] Ms. Quinn appears as an observer. Go ahead, Ms. Martin-Simon.

Beistel’s counsel’s objection to the admission of Allen’s spreadsheet invoked the judgment of the court on a question other than the court’s jurisdiction, recognized that the action was properly pending in Texas, and sought affirmative action from the court. See Trejo, 142 S.W.3d at 304; Dawson-Austin, 968 S.W.2d at 322; see also Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 8 (Tex. App.—San Antonio 2004, pet. denied) (“A general appearance occurs when a party invokes the judgment of the court in any way on any question other than that of the court’s jurisdiction, without being compelled to do so by a previous ruling of the court. The emphasis is on affirmative action which impliedly recognizes the court’s jurisdiction over the parties.” (citations omitted)). While Texas courts have held that a party who merely observes a proceeding without participating does not make a general appearance, Beistel’s counsel participated when she objected to the admission of Allen’s spreadsheet. See, e.g., Seals v. Upper Trinity Reg’l Water Dist., 145 S.W.3d 291, 297 (Tex. App.—Fort Worth 2004, pet. dism’d); Carone, 138 S.W.3d at 8; Bradford v. Bradford, 971 S.W.2d 595, 598 (Tex. App.—Dallas 1998, no pet.); Serna v. Webster, 908 S.W.2d 487, 492 (Tex. App.—San Antonio 1995, no writ). Counsel’s participation in the hearing was inconsistent with the assertion in Beistel’s special appearance that the trial court lacked jurisdiction over her. See Dawson-Austin, 968 S.W.2d at 323 (“[T]he motion for continuance did not request affirmative relief inconsistent with Dawson-Austin’s assertion that the district court lacked jurisdiction, which, as we have noted, is the test for a general appearance.”). Additionally, counsel’s attempt to preserve the special appearance, and the trial court’s assertion that counsel was appearing as an observer, does not eliminate, or cure the effect of the objection. See Trejo, 142 S.W.3d at 304; Dawson-Austin, 968 S.W.2d at 322; Carone, 138 S.W.3d at 8. Instead, we focus on counsel’s affirmative action, which impliedly recognized the court’s jurisdiction over Beistel. See Seals, 145 S.W.3d at 296; Carone, 138 S.W.3d at 8; Bradford, 971 S.W.2d at 598. We therefore hold that the appearance and participation of Beistel’s counsel at the termination hearing constituted a general appearance. See Seals, 145 S.W.3d at 298–99 (holding that appellee made general appearance at hearing where it stated that it had no objection to appellant’s unsworn testimony, reserved right to place appellant under oath, and asked trial court to determine scope of pleadings in case); Toler v. Travis County Child Welfare Unit, 520 S.W.2d 834, 838 (Tex. Civ. App.—Austin 1975, writ ref’d n.r.e.) (holding that father made general appearance at hearing where he sought adjudication that would have permitted him and his wife to have custody of children and take them to West Virginia to live). We need not address whether Beistel was an indispensable party to the termination hearing, as Beistel’s general appearance renders this issue moot.

Legal and Factual Sufficiency

In her third issue, Beistel contends the trial court abused its discretion in terminating the wage-withholding orders because the evidence presented at the termination hearing is legally and factually insufficient to support the trial court’s findings that Allen “made overpayments of child support,” and that “no child support is due and owing.”
Generally, unless the complaining party can demonstrate a clear abuse of discretion, orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex. App.—El Paso 2005, no pet.); In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.). In determining whether an abuse of discretion has occurred, we view the evidence in a light most favorable to the court’s decision and indulge every legal presumption in favor of its judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). When a court fails to analyze or apply the law correctly, it abuses its discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court also abuses its discretion if it acts arbitrarily and unreasonably, or without reference to any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Legal and factual sufficiency challenges are not independent grounds of error, but relevant factors in determining whether the trial court abused its discretion. See id.; Miles v. Peacock, No. 01-06-00313-CV, 2007 WL 1166162, at *3 (Tex. App.—Houston [1st Dist.] Apr. 19, 2007, no pet. h.); Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); D.S., 76 S.W.3d at 516; McGuire v. McGuire, 4 S.W.3d 382, 387 n.2 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A trial court does not abuse its discretion when there is some evidence of a substantive and probative character to support the trial court’s judgment. Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Holley, 864 S.W.2d at 706.

At the termination hearing, Allen testified that he had paid his entire child support obligation, and admitted a spreadsheet as a shorthand rendition of his testimony showing that the withholding orders had actually caused him to pay more than he owed. Allen created the spreadsheet by calculating the total amount of child support he paid, and then subtracting the total amount of child support he owed.

To calculate his total child support obligation, Allen multiplied his weekly child support payment by the number of weeks in a year. He then multiplied this product by the number of years he was obligated to pay child support for each of his two children. The resulting calculation shows that Allen owed a total of $60,840 in child support. Allen then calculated the total amount of child support he paid by adding together the receipts provided by the Texas Attorney General. Allen alleges that he paid $79,186.98 in child support. When the amount of child support Allen owed ($60,840) is subtracted from the amount of child support Allen paid ($79,186.98), the spreadsheet shows that Allen overpaid $18,346.98 in child support.

The calculations in Allen’s spreadsheet are flawed for several reasons. First, Allen’s calculation of his total child support obligation does not include any interest charges on the arrearages. Texas Family Code section 159.604(a) provides that the law of the state that issues a child support order governs “(1) the nature, extent, amount, and duration of current payments under a registered support order; (2) the computation and payment of arrearages and accrual of interest on the arrearages under the support order; and (3) the existence and satisfaction of other obligations under the support order.” Tex. Fam. Code Ann. § 159.604(a) (Vernon Supp. 2006). Ohio law requires that a certain amount of interest accrue on child support arrearages, and the evidence in this case is undisputed that Allen has been in arrears on his child support obligation since it began in 1986. See Ohio Rev. Code Ann. § 1343.03 (LexisNexis 2006), § 3123.171 (LexisNexis Supp. 2007), § 5703.47 (LexisNexis 2005). Allen’s calculation of the total amount of his child support obligation is therefore incorrect.

Second, Allen’s calculation of the total amount of child support he paid is nonsensical. In his calculation, Allen multiplies the amount of child support he allegedly paid by various percentage rates depending upon when he made the payments. Allen then adds these amounts to the total amount of child support he allegedly paid. The record contains no evidence explaining these percentages or their significance.

Lastly, the calculations in Allen’s spreadsheet ignore the fact that his entire child support arrearage was reduced to a single judgment in 2000. Allen’s youngest child turned eighteen on November 29, 2000, which, according to the Ohio divorce decree, terminated his current child support obligation. The same month, the trial court entered a judgment against Allen that consolidated all of his child support arrearages. The Attorney General admitted this judgment at the termination hearing, which shows that as of November 15, 2000, Allen owed $30,346.88 in child support arrearages. The calculations on Allen’s spreadsheet, however, are based on the total amount of child support owed, and the total amount of child support paid. Allen produced no evidence regarding the amount of the arrearage judgment or any accrued interest on the judgment that he has paid since November 15, 2000. Without this evidence, the trial court had no way to determine if Allen has completely paid his child support arrearage judgment.

Allen’s testimony that he paid his entire child support obligation is based on the spreadsheet he admitted into evidence, which as determined above, is facially incorrect and does not address the amount of the arrearage judgment Allen has paid since November 15, 2000. The evidence presented therefore does not support the trial court’s findings that Allen “made overpayments of child support,” and that “no child support is due and owing.” See Zeifman v. Michels, 212 S.W.3d 582, 596 (Tex. App.—Austin 2006, pet. denied) (holding that trial court abused its discretion because evidence was legally insufficient to support conservatorship order); Stucki v. Stucki, No. 12-04-00290-CV, 2006 WL 2106969, at *5 (Tex. App.—Tyler July 31, 2006, no pet.) (holding that trial court abused its discretion because evidence was legally insufficient to support child support order); Agraz v. Carnley, 143 S.W.3d 547, 554–55 (Tex. App.—Dallas 2004, no pet.) (holding that trial court abused its discretion because evidence was legally insufficient to support child support and conservatorship orders). We hold that without evidence to support its decision, the trial court abused its discretion in terminating the wage-withholding orders. See Buller, 806 S.W.2d at 226; Miles, 2007 WL 1166162, at *3; Dunn, 177 S.W.3d at 396; D.S., 76 S.W.3d at 516; McGuire, 4 S.W.3d at 387 n.2. We reverse the trial court’s orders terminating the judicial and administrative writs of withholding and remand for further proceedings.
We need not address Beistel’s fourth issue because we have already determined that the trial court abused its discretion in terminating the wage-withholding orders.
Conclusion
We hold that (1) the trial court had jurisdiction to terminate the wage-withholding orders, (2) Beistel made a general appearance at the termination hearing, and (3) the trial court abused its discretion in terminating the wage-withholding orders. We therefore reverse the orders of the trial court and remand for further proceedings.

Jane Bland
Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.