Affirmed and Memorandum Opinion filed March 30, 2006.

 

 

In The

 

Fourteenth Court of Appeals

____________

 

NO. 14-03-01196-CV

____________

 

IN THE INTEREST OF J.M.D.

 

 

On Appeal from the 312th District Court

Harris County, Texas

Cause No. 80-06931

 

 

M E M O R A N D U M   O P I N I O N

In this case, an ex-husband appeals an order granting judgment for child-support arrearages in favor of his ex-wife.  The ex-husband asserts the trial court erred in entering the order because (1) the underlying child-support judgment was dormant and had not been timely revived; (2) waiver and laches bar the ex-wife=s recovery; and (3) the Texas Legislature=s 1997 amendment to section 158.102 of the Texas Family Code violates his due-process and due-course-of-law rights as well as protections against retroactive laws under the United States and Texas Constitutions.  We disagree and affirm the trial court=s judgment.

                        I.  Factual and Procedural Background

Appellant Raymond Robert Derr, Jr. and appellee Lanell Smith Anderson divorced in 1980.  They have one child, J.M.D., born on July 30, 1975.  The divorce decree required Derr to pay to Anderson $200 of child support each month until J.M.D. turned eighteen.  Derr never paid any child support to Anderson, and on April 15, 2003, Anderson sought to reduce the child-support arrearages to judgment.  Anderson also sought to enforce the judgment with a wage-withholding order. After a hearing, the trial court signed an AOrder Granting Judgment for Child Support Arrearages.@  In this order, the trial court rendered  judgment for the child-support arrearages, interest, and attorney=s fees totaling $93,698.24, as well as post-judgment interest.  The trial court ordered Derr to discharge the judgment by paying $600 per month and ordered wage withholding.  Derr filed a motion for new trial asserting the issues that he now presents on appeal.  After a hearing, the trial court denied Derr=s motion for new trial.

                                II.  Standard of Review

Derr preserved error on his issues solely by his motion for new trial.  Therefore, Derr must show that the trial court erred in denying his motion for new trial.  We review the trial court=s denial of Derr=s motion for new trial under an abuse-of-discretion standard.  See Champion Int=l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988) (orig. proceeding).

                                III.  Issues and Analysis

A.      Had the Achild support order judgment@ become dormant under section 34.001 of the Texas Civil Practice and Remedies Code so that it had to behad timely revived under section 31.006 of the Texas Civil Practice and Remedies Code?

In his first issue, Derr asserts that the Achild support order judgment@ had become dormant ten years after the court issued the divorce decree on July 7, 1980, ordering Derr to pay child support.  If a writ of execution is not issued within ten years after the rendition of a judgment, the judgment is dormant and execution may not be issued on the judgment unless it is revived.  Tex. Civ. Prac. & Rem. Code ' 34.001 (Vernon 1997).  A dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date on which the judgment became dormant.  Tex. Civ. Prac. & Rem. Code ' 31.006 (Vernon 1997).  The  Achild support order judgment@ to which Derr refers is apparently the part of the divorce decree that orders Derr to pay child support.  However, the divorce decree is not a child-support judgment.  See In re S.C.S., 48 S.W.3d 831, 836 (Tex. App.BHouston [14th Dist.] 2001, pet. denied).  As this court previously has held, the ten-year dormancy period under section 34.001 of the Texas Civil Practice and Remedies Code does not come into play until child-support arrearages are reduced to a judgment confirming the arrearages; this dormancy period does not run from the date of the divorce decree or the dates on which the child-support payments are due.  See Tex. Civ. Prac. & Rem. Code ' 34.001; In re S.C.S., 48 S.W.3d at 836.  Because Derr=s child-support arrearages were not reduced to a judgment until July 2003, his dormancy argument fails.  See In re S.C.S., 48 S.W.3d at 836.  Accordingly, we overrule Derr=s first issue.

B.      Did the trial court abuse its discretion in denying the ex-husband a new trial based on motionhis alleged defenses of waiver and laches?

In his second and third issues, Derr asserts he believed he no longer owed Anderson any money and that his child-support obligation was no longer enforceable.  Derr contends Anderson delayed unconscionably and lacked diligence in enforcing her rights.  Therefore, Derr argues, Anderson is barred from recovery by the doctrines of waiver and laches.  In his brief, Derr cites no evidence in support of these arguments.  Derr attached no evidence to his motion for new trial and presented none at the hearing on this motion.  The evidence at the hearing on Anderson=s motion for enforcement did not establish the defenses of waiver and laches.  Therefore, the trial court did not abuse its discretion in denying Derr=s motion for new trial based on these defenses.  See In re S.C.S., 48 S.W.3d at 836B37.  Accordingly, we overrule Derr=s second and third issues.

C.      Did the Texas Legislature=s 1997 amendment of section 158.102 of the Texas Family Code violate the ex-husband=s due-process and due-course-of-law rights as well as his alleged right to be free from retroactive laws under the United States and Texas Constitutions?

Anderson did not file her first motion requesting a judicial wage-withholding order until April 2003.  As of August 2, 1997, which was more than four years after J.M.D.=s eighteenth birthday and after the due date of Derr=s final child-support payment, the Texas Family Code provided that, if no prior wage-withholding order had been signed, then the court retained jurisdiction to enter wage-withholding orders if the motion requesting such relief was filed before the fourth anniversary of either the date the child became an adult or the date the last child-support payment was due.  See Act of July 16, 1989, 71st Leg., 1st C.S., ch. 25, ' 29, 1989 Tex. Gen. Laws 74, 87 (former Tex. Fam. Code ' 14.43(r)) (repealed 1995) (current version at Tex. Fam. Code Ann. ' 158.102 (Vernon 2002)).  Effective September 1, 1997, the Texas Legislature amended this statute to allow for such orders Auntil all current support and child support arrearages, interest, and any applicable fees and costs, including ordered attorney=s fees and court costs have been paid.@  See Act of May 21, 1997, 75th Leg., R.S., ch. 911, ' 40, 1997 Tex. Gen. Laws 2864, 2872B73 (amended 1999) (current version at Tex. Fam. Code Ann. ' 158.102)).

In his fourth, fifth, sixth, and seventh issues, Derr asserts that this 1997 amendment violated his due-process and due-course-of-law rights as well as protections against retroactive laws under the United States and Texas Constitutions.  However, Derr presents his argument for these four issues together and the only analysis he provides is under the prohibition against retroactive laws in the Texas Constitution.^[1]  See Tex. Const. art. I, ' 16 (ANo . . . retroactive law[] or any law impairing the obligation of contracts[] shall be made.@).  Derr concedes that the Texas Supreme Court=s holding in In re A.D. is controlling and contrary to his argument under these four issues.  See In re A.D., 73 S.W.3d 244, 246B49 (Tex. 2002). In In re A.D., the Texas Supreme Court concluded that statutes providing time limits within which enforcement of an existing child-support liability may be effected concern the trial court=s continuing enforcement jurisdiction and do not affect substantive, vested rights.  See In re A.D., 73 S.W.3d at 248B49.  Therefore, the Texas Supreme Court held that legislation amending such statutes to extend these time limits beyond the fourth anniversary of the date on which the child in question became an adult did not violate the Texas Constitution=s prohibition against retroactive laws.  See Tex. Const. art. I, ' 16; In re A.D., 73 S.W.3d at 248B49. 

The In re A.D. court only addressed an assertion of unconstitutional retroactivity under the Texas Constitution.  See In re A.D., 73 S.W.3d at 246B49.  For this reason, Derr=s concession that the In re A.D. court=s holding controls the analysis of all four of his issues further confirms that Derr asserts the same argument under article I, section 16 of the Texas Constitution as to all four of these issues.  Because Derr presents the same analysis under all four issues, we presume, without deciding, that the analysis under each of these four arguments would be the analysis under article I, section 16 of the Texas Constitution.  We agree with Derr that In re A.D. is on point and controlling as to this argument.  See In re A.D., 73 S.W.3d at 248B49.  Derr asserts that he presents these four issues to preserve error so that he can argue in the Texas Supreme Court that In re A.D. should be overruled.  We overrule Derr=s fourth, fifth, sixth, and seventh issues.

Having overruled all of Derr=s issues, we affirm the trial court=s judgment.

 

 

 

 

/s/      Kem Thompson Frost

Justice

 

Judgment rendered and Memorandum Opinion filed March 30, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.