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`AFFIRMED; Opinion Filed May 27, 2020
`
`In The
`Court of Appeals
`
`Fifth District of Texas at Dallas
`
`No. 05-19-00867-CV
`
`IN THE INTEREST OF J.A., C.D.A., AND T.A., CHILDREN
`
`
`On Appeal from the 382nd Judicial District Court
`Rockwall County, Texas
`Trial Court Cause No. 1-09-785
`
`MEMORANDUM OPINION
`Before Justices Myers, Partida-Kipness, and Reichek
`Opinion by Justice Myers
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`
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`Father appeals the trial court’s order determining the amount of his
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`child-support arrearage. Father brings fourteen issues on appeal. However the
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`only issue relevant to the order on appeal is that the trial court erred in its
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`determination of the amount of the child-support arrearage. We affirm the trial
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`court’s judgment.
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`BACKGROUND
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`
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`Mother and Father were married in 1997 and divorced in 2009. At the time
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`of the divorce, they had six minor children. The divorce decree ordered Father to
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`pay child support of $1,500 per month until the final child reached the age of
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`eighteen years. The decree also ordered Father to pay Mother contractual alimony
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`of $1,165 per month. The decree required Father to provide the children’s health
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`insurance.
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`On October 10, 2018, Father filed this suit to modify the divorce decree
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`requesting that the amount of child support be reduced. Father asserted his income
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`was reduced and he was paying more child support than would be required by the
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`statutory guidelines. By this time, two of the children had reached the age of
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`eighteen, and a third turned eighteen ten days later.
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`On October 23, 2018, Mother filed a general denial to Father’s petition and a
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`counterpetition and motion for enforcement of the decree, alleging Father was
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`$10,500 in arrears for child support, had never paid the contractual alimony, and
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`was $126,036 in arrears for alimony.
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`On April 2, 2019, the Office of Attorney General (OAG) filed a
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`counterpetition in the suit alleging Father owed child support of $18,309.86. The
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`OAG requested that the trial court enter judgment against Father for the child
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`support.
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`The trial court held a bench trial on July 16, 2019. Father testified that he
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`had filed for disability payments with the Social Security Administration and was
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`determined to be disabled from April 2018. Mother testified she was receiving
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`–2–
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`checks from the Administration for $417 per month for child support.1 Mother
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`testified she had also received a lump-sum payment of $3,300 in December 2018
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`for child support from the Administration.2 Father ceased to pay the children’s
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`health insurance in April 2018, and the children were enrolled in Medicaid.
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`The trial court determined that Father’s child-support arrearage was
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`$10,585.37. The trial court offset that amount by the Administration’s $3,300
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`lump-sum payment to Mother, and the court determined the arrearage he owed was
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`$7,285.37. The trial court ordered Father to pay that amount at $70 per month.
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`The court also ordered Father to pay Mother $25 per month for medical support.
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`Because Mother received $417 per month as child support from the Administration
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`due to Father’s disability, the trial court modified the amount of Father’s child
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`support to $0.
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`MODIFICATION OF CHILD SUPPORT
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`In his fourteenth issue, Father contends the trial court erred by determining
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`Father’s child-support arrearage was $7,285.37.
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`Standard of Review
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`A trial court’s determination of child-support arrearages is reviewed for an
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`abuse of discretion. See Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.—Dallas
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`2005, no pet.). A trial court abuses its discretion when it acts “without reference to
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`1 This amount was disputed. Father testified Mother received $556 per month.
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`2 Father argues Mother received a lump-sum payment of $4,760.
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`–3–
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`any guiding rules and principles”; in other words, if it acts arbitrarily or
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`unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
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`(Tex. 1985). Legal and factual sufficiency are factors that can be considered in
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`determining whether an abuse of discretion has occurred. In re C.H.C., 396
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`S.W.3d 33, 55–56 (Tex. App.—Dallas 2013, no pet.).
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`To determine whether the trial court abused its discretion because the
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`evidence
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`is
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`insufficient
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`to support
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`its decision, we apply a
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`two-prong
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`analysis. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet.
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`denied). First, we consider whether the trial court had sufficient evidence upon
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`which to exercise its discretion. Id. We then determine whether, based on the
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`evidence, the trial court erred in its exercise of that discretion. Id. We conduct the
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`applicable sufficiency review with regard to the first question. Gonzalez v.
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`Gonzalez, 331 S.W.3d 864, 867 (Tex. App.—Dallas 2011, no pet.). We then
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`determine whether, based on the elicited evidence, the trial court made a
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`reasonable decision. Id.
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`A legal sufficiency challenge may be sustained only when (1) the record
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`discloses a complete absence of evidence of a vital fact, (2) the court is barred by
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`rules of law or of evidence from giving weight to the only evidence offered to
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`prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a
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`mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital
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`fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In determining
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`–4–
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`whether there is legally sufficient evidence to support the finding under review, we
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`must consider evidence favorable to the finding if a reasonable fact-finder could,
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`and disregard evidence contrary to the finding unless a reasonable fact-finder could
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`not. Id. at 827.
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`When reviewing the evidence for factual sufficiency, we consider and weigh
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`all the evidence presented and will set aside the trial court’s findings only if they
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`are so contrary to the overwhelming weight of the evidence such that they are
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`clearly wrong and unjust. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445
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`(Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When the evidence
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`conflicts, we must presume that the factfinder resolved any inconsistencies in favor
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`of the order if a reasonable person could do so. City of Keller, 168 S.W.3d at 821.
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`The trial court does not abuse its discretion if evidence of a substantive and
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`probative character exists in support of its decision. In re Moore, 511 S.W.3d 278,
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`283 (Tex. App.—Dallas 2016, no pet.).
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`A trial court is required to follow particular procedures in entering a final
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`judgment in a proceeding seeking child-support arrearages. In re G.L.S., 185
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`S.W.3d 56, 59 (Tex. App.–San Antonio 2005, no pet.). First, the trial court must
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`tally the amount of the arrearage based on the payment evidence presented. Beck
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`v. Walker, 154 S.W.3d 895, 903 (Tex. App.–Dallas 2005, no pet.); Lewis v.
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`Lewis, 853 S.W.2d 850, 854 (Tex. App.–Houston [14th Dist.] 1993, no writ).
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`After this calculation is made, the final judgment is to be rendered only after
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`–5–
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`considering offsets and counterclaims. In re G.L.S., 185 S.W.3d at 59; Beck, 154
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`S.W.3d at 903; Lewis, 853 S.W.2d at 854. The petitioner must establish the
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`arrearage, and the respondent must establish any applicable counterclaim or
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`offset. See Beck, 154 S.W.3d at 903. A determination of arrearages must be set
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`aside if no evidence supports it. Office of the Attorney Gen. of Tex. v. Burton, 369
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`S.W.3d 173, 175–76 (Tex. 2012) (per curiam).
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`Amount of Arrearage
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`
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`Father is pro se, and his arguments are not clear. It appears Father’s
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`argument is that he was not behind on child support when he began receiving
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`disability payments in April 2018, and that he should not be liable for child support
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`after he began receiving disability payments.
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`Under the divorce decree, Father was required to pay child support of $1,500
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`per month. Father did not pay child support in April 2018 and thereafter. He filed
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`suit for modification of the amount of child support in October 2018, and Mother
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`appeared in the lawsuit that same month. Father argues he should not have had to
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`pay child support from April 2018 because he was receiving disability payments.
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`However, the Texas Family Code provides that a child-support modification
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`cannot affect obligations accruing before the earlier of the date of service of
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`citation or an appearance in the suit. See TEX. FAM. CODE ANN. § 156.401(b).
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`Father filed this suit on October 10, 2018, and Mother appeared on October 23,
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`2018. Therefore, the trial court could not modify Father’s child-support
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`–6–
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`obligations before then. Father cites no legal authority in support of his argument
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`that he was not required to make child-support payments while receiving disability
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`payments.
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`From April through October is seven months. Seven months of child
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`support at $1,500 per month is $10,500. Thus, some evidence supports a finding
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`that Father’s child-support arrearage was at least $10,500. The trial court’s
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`determination that Father’s gross child-support arrearage was $10,585.37 was
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`supported by some evidence and was not against the great weight and
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`preponderance of the evidence.
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`Offsets
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`The trial court offset the child-support arrearage by $3,300, which was the
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`amount Mother testified she received in a lump sum from the Administration for
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`child support. Father argues the offset should have been $4,760, not $3,300.
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`
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`Father argues Mother’s lump-sum payment was $170 per child for four
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`children per month for 7 months, which equals $4,760. No documents were
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`admitted as exhibits during the trial, but the trial court examined and the parties
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`discussed several documents. Mother testified:
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`Q. . . . And how much did you receive in a lump sum for the children?
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`A. Oh, 1100 each.
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`Q. So you received $3300?
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`A. Yes, ma’am.
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`–7–
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`
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`Q. . . . [D]o you understand that we have to give him credit for that
`$3300 toward his arrears?
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`A. Yes.
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`Q. Okay. And you don’t have a problem with us giving him credit for
`the $3300?
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`A. No.
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`Father testified the lump-sum payment was more than $3,300:
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`Q. So your testimony is that the lump sum was larger than $3300?
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`A. Yeah, because I assume 4,500, somewhere in there that she
`received back payment, which means $170 for four children since
`April all the way down to December. And after the modification, I
`mean they made the calculation she was getting 139 for each child.
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`. . . .
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`The Court: Dad, do you have anything showing how much she got
`backpay?
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`[Father]: Yes. I’ve got $170 for each child.
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`The Court: For a total of how much when?
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`[Father]: 680. When I went—
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`The Court: Okay. Get your paperwork that shows us exactly how
`much she got when, and then show it to [the Assistant Attorney
`General].
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`. . . .
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`[Assistant Attorney General]: Your Honor, this does not have
`amounts on it. It just has dates on it. So it doesn’t have any amounts.
`It’s not helpful.
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`. . . .
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`And I don’t have anything about a lump sum except for what she
`testified to and he’s . . . testifying to.
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`–8–
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`The evidence consisted of Mother’s testimony that she actually received
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`$3,300, and Father’s testimony that he “assume[d]” Mother received a lump-sum
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`payment equal to $170 per month for each of four children for seven months, that
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`is, $4,760. The Assistant Attorney General stated that Father’s documents did not
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`actually show the amounts Mother received. Without the actual documents being
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`made part of the record, we have only the parties’ descriptions of the documents to
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`consider.3 The trial court weighed the evidence and determined the amount of the
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`lump-sum payment Mother received was $3,300.
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`We conclude some evidence supports the trial court’s determination that the
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`arrearage should be offset by $3,300, and that determination is not against the great
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`weight and preponderance of the evidence.
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`The trial court’s determination that Father’s liability for the child-support
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`arrearage was $7,285.37 was reasonable and was not an abuse of discretion. We
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`overrule Father’s fourteenth issue.
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`FATHER’S REMAINING ISSUES
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`Father’s first thirteen issues do not concern the issues expressly decided by
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`trial court, which were the amount of Father’s child-support arrearage, the
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`3 Throughout his brief, Father makes reference to documents, statements, and actions that are not part
`of the record on appeal. We cannot consider any matters that are not part of the record on appeal. The
`appellate record consists of the clerk’s record and any reporter’s records. See TEX. R. APP. P. 34.1.
`Father filed documents in this Court that were not part of the clerk’s record or reporter’s record that it
`appears he wants us to consider as evidence. We cannot consider these documents as evidence. We do
`not consider evidence that the record does not affirmatively show was before the trial court. See SEI Bus.
`Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 841 (Tex. App.—Dallas 1991, no writ).
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`
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`–9–
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`enforcement of that arrearage, and whether and how to modify Father’s child-
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`support obligations. Although Mother moved for enforcement of the contractual
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`alimony provisions, the trial court did not grant that motion.
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`Father’s first and second issues concern Mother’s actions related to alimony,
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`contending that her claim for alimony was false and constituted perjury and that
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`she had made secret debit card withdrawals that constituted alimony. Neither of
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`these issues is relevant to this appeal because the trial court did not grant Mother’s
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`motion to enforce the alimony provisions. The remaining issues do not concern
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`any matters that were before the trial court in this proceeding. Therefore, these
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`first thirteen issues do not present any error this Court can consider, and we do not
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`address them. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a
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`written opinion that is as brief as practicable but that addresses every issued raised
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`and necessary to final disposition of the appeal.”).
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`CONCLUSION
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`We affirm the trial court’s judgment.
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`190867F.P05
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`/Lana Myers/
`LANA MYERS
`JUSTICE
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`–10–
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`
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`Court of Appeals
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`Fifth District of Texas at Dallas
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`JUDGMENT
`
`IN THE INTEREST OF J.A., C.D.A.,
`AND T.A., CHILDREN,
`
`No. 05-19-00867-CV
`
`
`
` On Appeal from the 382nd Judicial
`District Court, Rockwall County,
`Texas
`Trial Court Cause No. 1-09-785.
`Opinion delivered by Justice Myers.
`Justices Partida-Kipness and Reichek
`participating.
`
`In accordance with this Court’s opinion of this date, the judgment of the trial
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`court is AFFIRMED.
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`Judgment entered this 27th day of May, 2020.
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`–11–
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