Texas Judiciary Online - HTML Opinion

MEMORANDUM=20 OPINION

Appellant=20 Elizabeth Beistel appeals the trial court=92s termination of two=20 wage-withholding orders against appellee Theodore Allen. In = four=20 issues, Beistel contends (1) the trial court lacked subject matter = jurisdiction to terminate the wage-withholding orders, (2) Beistel = was an=20 indispensable party to the termination hearing, (3) the trial = court abused=20 its discretion in terminating the wage-withholding orders because = the=20 evidence is legally and factually insufficient to support the = trial=20 court=92s findings that Allen overpaid his child support = obligation and that=20 no child support was due and owing, and (4) the trial court = terminated the=20 wage-withholding orders based on an incorrect legal theory. = We=20 conclude that (1) the trial court had = jurisdiction to terminate the wage-withholding orders, (2) Beistel = made a=20 general appearance at the termination hearing, and (3) the trial = court=20 abused its discretion in terminating the wage-withholding = orders. We=20 therefore reverse. =20

Background

=20 In May 1986, Beistel and Allen obtained a divorce in Ohio. = The Ohio=20 court ordered Allen to pay forty-five dollars a week in child = support for=20 each of the couple=92s two children. Allen moved to Texas = shortly=20 after the divorce.

=20 In 1988, 1994, and 2000, Beistel obtained judgments in Texas = against Allen=20 under the Uniform Reciprocal Enforcement of Support Act and the = Uniform=20 Interstate Family Support Act (UIFSA). The judgments state = the=20 amount Allen owes in child support arrearages, and order Allen to = make=20 payments toward the arrearages. To enforce the judgments, = the trial=20 court issued a judicial writ of withholding in 1994, and the Texas = Attorney General issued an administrative writ of withholding in = 2001.=20 Both require Allen=92s employer to withhold his current = child support=20 payments and a portion of the arrearages from his paychecks. =

=20 In 2005, Allen petitioned the trial court to terminate the=20 wage-withholding orders. The Texas Attorney General=20 intervened. The trial court held a hearing at which Allen, = the=20 Attorney General, and counsel for Beistel were present. At = the time=20 of the hearing, both of Beistel and Allen=92s children were over = the age of=20 eighteen. Beistel filed a special appearance, which the = trial court=20 granted. Beistel=92s counsel limited her participation at = the hearing=20 in an attempt to avoid making a general appearance. At the = end of=20 the hearing, the trial court terminated the wage-withholding = orders and=20 entered findings of fact and conclusions of law.

Subject=20 Matter Jurisdiction

=20 In her first issue, Beistel contends the trial court lacked = subject matter=20 jurisdiction to terminate the wage-withholding orders.

A. Invoking=20 Jurisdiction

=20 Beistel first contends that the trial court lacked jurisdiction to = terminate the wage-withholding orders because Allen failed to file = a=20 pleading to invoke the trial court=92s jurisdiction. Allen = responds=20 that he filed a petition to terminate the wage-withholding orders = on June=20 17, 2005.

=20 Texas Family Code section 102.002 provides that =93[a]n=20 original suit begins by the filing of a petition as provided by = this=20 chapter.=94 Tex. = Fam. Code=20 Ann. =A7 102.002 (Vernon 2002); In=20 re A.M., 936 = S.W.2d=20 59, 63 (Tex. = App.=97San=20 Antonio 1996, no writ) (=93A suit = affecting=20 the parent-child relationship commences by the filing of a=20 petition.=94). Issues=20 concerning wage-withholding orders may be determined in a suit = filed=20 pursuant to section 102.002. See Tex.=20 Fam. Code Ann. = =A7=A7 102.001(b),=20 102.002, 158.001 (Vernon 2002).

=20 The record contains Allen=92s petition to terminate the = wage-withholding=20 orders, and a time stamp at the top of the petition denotes that = it was=20 filed on June 17, 2005. The petition addresses both = wage-withholding=20 orders and their respective cause numbers, and requests that the = trial=20 court terminate them both. We therefore hold that Allen=92s = petition=20 was sufficient to invoke the trial court=92s jurisdiction to = adjudicate a=20 dispute over the wage-withholding orders.

B. Jurisdiction = to Modify=20 or Reduce Arrearages

=20 Beistel next contends that the trial court lacked jurisdiction to = modify=20 or reduce the amount of child support arrearages owed by = Allen.

=20 Child=20 support orders issued in another state and registered in Texas are = enforceable in the same manner and are subject to the same = procedures as=20 child support orders issued by Texas courts. Id. =A7 = 159.603(b)=20 (Vernon 2002). Texas courts, however, are not permitted to = modify=20 child support orders issued by other states except under = particular=20 circumstances specified in Family Code section 159.611. = Id. =A7=20 159.603(c), =A7 159.611 (Vernon Supp. = 2006).

=20 Here, the rules applicable to the trial court=92s ability to = modify an=20 out-of-state child support order do not apply. See = id. =A7=20 159.611. The trial court in this case did not modify the = Ohio child=20 support order; it simply terminated the two wage-withholding = orders issued=20 in Texas. The trial court in this case issued the judicial = writ of=20 withholding in 1994, and the Texas Attorney = General issued=20 the administrative writ of withholding in 2001. See=20 id. =A7=A7=20 102.001(b), 102.002, 158.001. We therefore hold that the = trial court=20 had jurisdiction to modify or terminate the wage-withholding = orders.=20 See=20 id.;=20 see also id. =A7 158.404 (Vernon 2002) (=93If a = court has=20 rendered an order that reduces the amount of child support to be = withheld=20 or terminates withholding for child support, any person or = governmental=20 entity may deliver to the employer a certified copy of the order = without=20 the requirement that the clerk of the court deliver the=20 order.=94).

Indispensable=20 Party

=20 In her second issue, Beistel contends that the trial court erred = in=20 terminating the wage-withholding orders after granting her special = appearance because she was an indispensable party to the = termination=20 hearing. Allen responds that Beistel is estopped from = asserting that=20 she was an indispensable party to the termination hearing because = she made=20 a general appearance at the hearing through counsel. =

=20 A party enters a general appearance when it (1) invokes the = judgment of=20 the court on any question other than the court=92s jurisdiction, = (2)=20 recognizes by its acts that an action is properly pending, or (3) = seeks=20 affirmative action from the court. Exito Elecs. Co. v. = Trejo,=20 142 S.W.3d 302, 304 (Tex. 2004); Dawson-Austin v. Austin, = 968=20 S.W.2d 319, 322 (Tex. 1998); Xenos Yuen v. Fisher, No.=20 01-06-00010-CV, 2007 WL 529362, at *4 (Tex. App.=97Houston [1st = Dist.] Feb.=20 22, 2007, no pet.). =93Every appearance, prior to judgment, = not in=20 compliance with [the special appearance] rule is a general=20 appearance.=94 Tex. R. Civ.=20 P. 120a(1).

=20 In this case, Beistel=92s counsel attended the termination hearing = and made=20 the following statement when Allen attempted to admit a = spreadsheet=20 demonstrating that he had paid his entire child support = obligation: =93Your=20 Honor, if they are offering it as a shorthand rendition of what he = says=20 got paid, I guess the Court could accept it on that basis. =20 Otherwise, I=92d object that it=92s hearsay.=94 The trial = court did not=20 rule on the objection, but admitted the spreadsheet for the = limited=20 purpose of serving as a shorthand rendition of Allen=92s = testimony. =20 Later in the hearing, the trial court was about to ask Beistel=92s = counsel=20 if she wanted to cross-examine a witness when the following = exchange=20 occurred:

[Trial Court:] = Okay. Ms.=20 Quinn, I=92m not sure you=92re here, but maybe you are.

[Beistel=92s Counsel:] = I=92ll be=20 here.

[Allen=92s Counsel:] = I don=92t=20 think she=92s here, Judge.

[Trial Court:] It = may be=20 waiving a previously granted Special Appearance.

[Allen=92s Counsel:]=20 Right.

[Trial Court:] I = just see it=20 as a legal issue. I=92m not saying you are, but discretion = being the=20 better part of=97

[Beistel=92s Counsel:]=20 Okay. I=92ll keep my mouth shut.

[Trial Court:] If = you remain=20 moot, [sic] you won=92t have a problem.

[Beistel=92s Counsel:] = I would=20 agree with that, Judge.

[Trial Court:] Ms. = Quinn=20 appears as an observer. Go ahead, Ms. = Martin-Simon.

Beistel=92s=20 counsel=92s objection to the admission of Allen=92s spreadsheet = invoked the=20 judgment of the court on a question other than the court=92s = jurisdiction,=20 recognized that the action was properly pending in Texas, and = sought=20 affirmative action from the court. See Trejo, = 142=20 S.W.3d at 304; Dawson-Austin, 968 S.W.2d at 322; see = also=20 Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 8 (Tex. = App.=97San=20 Antonio 2004, pet. denied) (=93A = general=20 appearance occurs when a party invokes the judgment = of the=20 court in any way on any question other than = that of=20 the court=92s jurisdiction , without=20 being compelled to do so by a previous ruling of the court. The emphasis is on affirmative action = which=20 impliedly recognizes the court=92s jurisdiction over the = parties.=94 =20 (citations omitted)). While Texas courts have = held=20 that a party who merely observes a proceeding without = participating does=20 not make a general appearance, Beistel=92s counsel participated = when she=20 objected to the admission of Allen=92s spreadsheet. See, = e.g.,=20 Seals v. Upper Trinity Reg=92l Water Dist., 145 S.W.3d 291, = 297 (Tex.=20 App.=97Fort Worth 2004, pet. dism=92d); Carone, 138 S.W.3d = at 8; Bradford v.=20 Bradford, 971 = S.W.2d 595,=20 598 (Tex. App.=97Dallas 1998, no pet.); Serna v.=20 Webster, 908 S.W.2d 487, 492 (Tex. App.=97San Antonio 1995, no = writ).=20 Counsel=92s participation in the hearing was=20 inconsistent with the assertion in Beistel=92s special appearance = that the=20 trial court lacked jurisdiction over her. See = Dawson-Austin,=20 968 S.W.2d at 323 (=93[T]he motion for continuance did not request = affirmative relief inconsistent with Dawson-Austin=92s assertion = that the=20 district court lacked jurisdiction, which, as we have noted, is = the test=20 for a general appearance.=94). Additionally, counsel=92s = attempt to=20 preserve the special appearance, and the trial court=92s assertion = that=20 counsel was appearing as an observer, does not eliminate, or cure = the=20 effect of the objection. See Trejo, 142 S.W.3d = at 304;=20 Dawson-Austin, 968 S.W.2d at 322; Carone, 138 S.W.3d = at=20 8. Instead, we focus on counsel=92s affirmative=20 action, which impliedly recognized the court=92s jurisdiction over = Beistel.=20 See Seals, 145 S.W.3d at 296;=20 Carone, 138 S.W.3d at 8; Bradford, 971 S.W.2d at = 598. We=20 therefore hold that the appearance and participation of = Beistel=92s counsel=20 at the termination hearing constituted a general appearance.=20 See Seals, 145 S.W.3d at 298=9699 (holding = that appellee=20 made general appearance at hearing where it stated that it had no = objection to appellant=92s unsworn testimony, = reserved=20 right to place appellant under oath, and asked trial court to = determine=20 scope of pleadings in case); Toler v. Travis County Child = Welfare=20 Unit, 520 S.W.2d 834, 838 (Tex. Civ. App.=97Austin 1975, writ = ref=92d=20 n.r.e.) (holding that father made general appearance at hearing = where he=20 sought adjudication that would have permitted him and his wife to = have=20 custody of children and take them to West Virginia to live). = We need=20 not address whether Beistel was an indispensable party to the = termination=20 hearing, as Beistel=92s general appearance renders this issue=20 moot.

Legal = and Factual=20 Sufficiency

=20 In her third issue, Beistel contends the trial court = abused its=20 discretion in terminating the wage-withholding orders because the = evidence=20 presented at the termination hearing is legally and factually = insufficient=20 to support the trial court=92s findings that=20 Allen =93made overpayments of child support,=94 and that =93no = child support is=20 due and owing.=94

Generally,=20 unless the complaining party can demonstrate a clear abuse of discretion, orders arising from a suit affecting = the=20 parent-child relationship will not be disturbed on appeal. = See=20 Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990);=20 Sotelo = v.=20 Gonzales, 170 = S.W.3d 783,=20 787 (Tex. App.=97El Paso 2005, no pet.); In re=20 D.S., 76 = S.W.3d 512,=20 516 (Tex. App.=97Houston [14th Dist.] 2002, no = pet.). =20 In = determining=20 whether an abuse of discretion has occurred, we view the evidence = in a=20 light most favorable to the court=92s decision and indulge every = legal=20 presumption in favor of its judgment. Holley v. = Holley, 864=20 S.W.2d 703, 706 (Tex. App.=97Houston [1st Dist.] 1993, writ = denied). =20 When a court fails to analyze or apply the law correctly, it = abuses its=20 discretion. Walker v. Packer, 827 S.W.2d 833, = 840=20 (Tex. 1992). A trial court also abuses its discretion if it = acts=20 arbitrarily and unreasonably, or without reference to any guiding = rules or=20 principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d = 223,=20 226 (Tex. 1991). Legal and factual=20 sufficiency challenges = are not independent grounds of error, but relevant = factors in=20 determining whether the trial court abused its discretion. See=20 id.; Miles v. Peacock, No. = 01-06-00313-CV,=20 2007 WL 1166162, at *3 (Tex. App.=97Houston [1st Dist.] Apr. 19, = 2007, no=20 pet. h.); Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. = App.=97Houston [1st=20 Dist.] 2005, pet. denied); D.S., 76 = S.W.3d at=20 516; McGuire v.=20 McGuire, 4 = S.W.3d 382,=20 387 n.2 (Tex. App.=97Houston [1st Dist.] 1999, no = pet.). =20 A = trial court=20 does not abuse its discretion when there is some evidence of a = substantive=20 and probative character to support the trial court=92s = judgment. =20 Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. = App.=97Houston=20 [14th Dist.] 2004, no pet.); Holley, 864 S.W.2d at 706.=20

At the=20 termination hearing, Allen testified that he had paid his entire = child=20 support obligation, and admitted a spreadsheet as a shorthand = rendition of=20 his testimony showing that the withholding orders had actually = caused him=20 to pay more than he owed. Allen created the spreadsheet by=20 calculating the total amount of child support he paid, and then=20 subtracting the total amount of child support he owed.=20

To = calculate his=20 total child support obligation, Allen multiplied his weekly child = support=20 payment by the number of weeks in a year. He then multiplied = this=20 product by the number of years he was obligated to pay child = support for=20 each of his two children. The resulting calculation shows = that Allen=20 owed a total of $60,840 in child support. Allen then = calculated the=20 total amount of child support he paid by adding together the = receipts=20 provided by the Texas Attorney General. Allen alleges that = he paid=20 $79,186.98 in child support. When the amount of child = support Allen=20 owed ($60,840) is subtracted from the amount of child support = Allen paid=20 ($79,186.98), the spreadsheet shows that Allen overpaid $18,346.98 = in=20 child support.

The = calculations=20 in Allen=92s spreadsheet are flawed for several reasons. = First,=20 Allen=92s calculation of his total child support obligation does = not include=20 any interest charges on the arrearages. Texas Family Code = section=20 159.604(a) provides that the law of the state that issues a child = support=20 order governs =93(1) the nature, extent, amount, and duration of = current=20 payments under a registered support order;=20 (2) the computation and payment of arrearages and accrual of = interest on=20 the arrearages under the support order; and=20 (3) the existence and satisfaction of other obligations under the = support=20 order.=94 Tex. Fam. Code Ann. =A7 = 159.604(a)=20 (Vernon Supp. 2006). Ohio law requires that a certain amount = of=20 interest accrue on child support arrearages, and the evidence in = this case=20 is undisputed that Allen has been in arrears on his child support=20 obligation since it began in 1986. See Ohio Rev. Code Ann. =A7 = 1343.03=20 (LexisNexis 2006), =A7 3123.171 (LexisNexis Supp. 2007), =A7 = 5703.47=20 (LexisNexis 2005). Allen=92s calculation of the total amount = of his=20 child support obligation is therefore incorrect.

Second, = Allen=92s=20 calculation of the total amount of child support he paid is = nonsensical.=20 In his calculation, Allen multiplies the amount of child = support he=20 allegedly paid by various percentage rates depending upon when he = made the=20 payments. Allen then adds these amounts to the total amount = of child=20 support he allegedly paid. The record contains no evidence=20 explaining these percentages or their significance.

Lastly, = the=20 calculations in Allen=92s spreadsheet ignore the fact that his = entire child=20 support arrearage was reduced to a single judgment in 2000. = Allen=92s=20 youngest child turned eighteen on November 29, 2000, which, = according to=20 the Ohio divorce decree, terminated his current child support=20 obligation. The same month, the trial court entered a = judgment=20 against Allen that consolidated all of his child support = arrearages. =20 The Attorney General admitted this judgment at the termination = hearing,=20 which shows that as of November 15, 2000, Allen owed $30,346.88 in = child=20 support arrearages. The calculations on Allen=92s = spreadsheet,=20 however, are based on the total amount of child support owed, and = the=20 total amount of child support paid. Allen produced no = evidence=20 regarding the amount of the arrearage judgment or any accrued = interest on=20 the judgment that he has paid since November 15, 2000. = Without this=20 evidence, the trial court had no way to determine if Allen has = completely=20 paid his child support arrearage judgment.

Allen=92s testimony=20 that he paid his entire child support obligation is based on the=20 spreadsheet he admitted into evidence, which as determined above, = is=20 facially incorrect and does not address the amount of the = arrearage=20 judgment Allen has paid since November 15, 2000. The = evidence=20 presented therefore does not support the trial court=92s findings = that Allen=20 =93made overpayments of child support,=94 and that =93no child = support is due=20 and owing.=94 See Zeifman=20 v. Michels, 212 = S.W.3d=20 582, 596 (Tex. = App.=97Austin=20 2006, pet. denied) (holding that trial court abused its discretion = because=20 evidence was legally insufficient to support conservatorship=20 order); Stucki v. Stucki, No. 12-04-00290-CV, = 2006 WL=20 2106969, at *5 (Tex. App.=97Tyler July 31, 2006, no pet.) = (holding that=20 trial court abused its discretion because evidence was legally=20 insufficient to support child support order); = Agraz v.=20 Carnley, 143 S.W.3d 547, 554=9655 (Tex. App.=97Dallas 2004, no = pet.) (holding that=20 trial court abused its discretion because evidence was legally=20 insufficient to support child support and conservatorship=20 orders). We hold that without evidence to = support its=20 decision, the trial court abused its discretion in terminating the = wage-withholding orders. See=20 Buller, 806 = S.W.2d at=20 226; Miles, 2007 WL 1166162, at *3;=20 Dunn, 177 S.W.3d at 396; D.S., 76 = S.W.3d at=20 516; McGuire, 4 = S.W.3d at 387=20 n.2. We reverse the trial court=92s orders = terminating=20 the judicial and administrative writs of withholding and remand = for=20 further proceedings.

=20 We need not address Beistel=92s fourth issue because we have = already=20 determined that the trial court abused its discretion in = terminating the=20 wage-withholding orders.

Conclusion

=20 We hold that (1) the trial court had jurisdiction to terminate the = wage-withholding orders, (2) Beistel made a general appearance at = the=20 termination hearing, and (3) the trial court abused its discretion = in=20 terminating the wage-withholding orders. We therefore = reverse the=20 orders of the trial court and remand for further = proceedings.

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; =20 Jane Bland

&= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 = Justice

Panel consists of = Chief Justice=20 Radack and Justices Jennings and=20 Bland.