Attorney General of Texas, on Behalf of Judith Merghart and the State of Texas v. Winny Merghart

Atty-Gen v. Merghart REFORMED AND AFFIRMED APRIL 30, 1990 NO. 10-89-070-CV Trial Court # 83-1701-1 IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * * ATTORNEY GENERAL OF TEXAS, ON BEHALF OF JUDITH MERGHART AND THE STATE OF TEXAS, Appellant v. WINNY MERGHART, Appellee * * * * * * * * * * * * * From 19th Judicial District Court McLennan County, Texas * * * * * * * * * * * * * O P I N I O N * * * * * * * Judith Anne Merghart and the State of Texas, by and through its Attorney General, Jim Mattox ("the State"), appeal from a judgment awarding them $9,394 for child support arrearage. In two points of error, Mrs. Merghart and the State assert that the trial court, after finding and confirming that Appellee/Cross-Appellant, Mr. Winny Merghart, was in arrears in the amount of $12,719 for past child support, erred by granting Mr. Merghart certain credits toward the arrearage. Mr. Merghart brings five cross-points of error alleging the trial court erred in awarding the $9,394 judgment, in entering a contempt order, in awarding judgment in favor of the State of Texas, and in finding that Carmen Irene Merghart is not emancipated. Mrs. Merghart and the State are correct in their assertion that the credit applied to the arrearage for the times when Mr. Merghart was unemployed is not allowed by law, and the judgment will be reformed accordingly. The Mergharts divorced in 1983, and Mr. Merghart was ordered to pay $350 a month in child support for their two children, Carmen and Brent. A hearing was held on February 16, 1989, on a motion for enforcement of the support payments and a motion to modify the divorce decree. The trial court modified the child support obligation, held Mr. Merghart in contempt for his failure to pay past child support, and granted Mrs. Merghart and the State a judgment against Mr. Merghart. Although the court found $12,719 was owed for past child support, it granted Mr. Merghart the following credits toward the arrears: (1)The amount of $1,575 for the time period in which the older child turned eighteen, even though the order was never changed; and also (2)The amount of $1,750 for the time period in which the Obligor/Respondent testified undisputedly that he was without employment. In their first point of error, Mrs. Merghart and the State contend that the court erred in allowing the $1,750 credit, and in their second point of error they contend that the court erred in allowing the $1,575 credit. By allowing these credits, the court modified the child support arrearage. Mr. Merghart properly notes that the "modification power of the court began at the time the Motion was filed." See Klaver v. Klaver, 764 S.W.2d 401, 404 (Tex. App.--Fort Worth 1989, no writ). Therefore, the court had the authority to allow the $1,575 credit because the findings show that the older child turned eighteen after the motion to modify was filed. However, the $1,750 credit was erroneously allowed because the findings show that the times when Mr. Merghart was unemployed were before the filing of his motion to modify. Mrs. Merghart's and the State's first point of error is sustained and their second point of error is overruled. Mr. Merghart argues in two reply points and one cross-point that no judgment should have been awarded in this case because there were no pleadings supporting the reduction of the arrearage to judgment. He insists that because the prayer for relief in the First Amended Motion for Enforcement and Further Orders on Child Support Obligation did not include a prayer for judgment on the arrearage and post-judgment interest, the trial court's judgment should be set aside. Although the prayer does not specifically mention the granting of a judgment, it does request the court to grant all other relief as may be proper, and paragraph 8 of the motion states, "Movant seeks judgment and all other appropriate relief for all violations and accrued arrears shown on hearing." Additionally, no special exceptions were made to the motion, and the record clearly indicates that this issue was tried by consent. See TEX. R. CIV. P. 90; Agusta Dev. Co. v. Fish Oil Well Serv., 761 S.W.2d 538, 543 (Tex. App.--Corpus Christi 1988, no writ). Testimony was presented at trial on Mr. Merghart's failure to make past child support payments and the amounts he should have paid. Although Mr. Merghart could argue that he believed such testimony was produced for justification of the contempt order instead of for proof required for a judgment, his counsel stated at the conclusion of the hearing: "I am bringing that to your attention and asking you to reconsider and not enter a motion for contempt, and instead, enter an order--a judgment on arrearage, which you would have the authority to do . . . . " Therefore, the parties were aware that the court had the right to award judgment on the arrearage, and because the trial court's attention was never called to the absence of any pleadings to support a judgment, the complaint is waived. See TEX. R. APP. P. 52(a.). Mrs. Merghart's and the State's points of error are sustained and Mr. Merghart's reply points and first cross-point are overruled. In his second cross-point of error Mr. Merghart asserts that the trial court erred in entering a contempt order requiring Appellee to be committed to jail. We cannot consider this cross-point because the only available procedure for review of a contempt order in Texas is an original application for a writ of habeas corpus. See Ex parte Dillard, 577 S.W.2d 519, 520 (Tex. Civ. App.--Texarkana 1979, no writ). Therefore, cross-point of error number two is overruled. Mr. Merghart complains in his third cross-point that there was no evidence presented at the hearing to show the State was entitled to any of the child support payments, and hence there was no evidence to support the award of judgment in favor of the State of Texas. Mrs. Merghart's motion was brought pursuant to chapter 76 of the Texas Human Resources Code which allows for assignments of support rights to the attorney general. Mr. Merghart directs our attention to section 76.003 which provides that "[t]he filing of an application for or the receipt of financial assistance under chapter 31 of this code constitutes an assignment to the attorney general of any rights to support . . . . " TEX. HUM. RES. CODE ANN. § 76.003 (Vernon Supp. 1990). Under present law, section 76.004 allows for an assignment of support rights when an application for child support services has been made irrespective of whether the applicant has applied for or received financial assistance under chapter 31. Id. at § 76.004. However, as Mr. Merghart points out, section 76.004 did not contain any language addressing assignment of support rights at the time of the hearing in this case. See id. Therefore, the State did fail to meet its burden to prove any interest in the judgment, and the judgment shall be reformed to be only in favor of Mrs. Merghart. Mr. Merghart's cross-point of error number three is sustained. In Mr. Merghart's last two cross-points of error he asserts that the trial court erred in finding that Carmen Irene Merghart is not an emancipated minor. His fourth cross-point states that the finding is against the great weight and preponderance of the evidence, and his fifth cross-point states that the evidence established as a matter of law that the child is emancipated. Mr. Merghart argues that even though Carmen is not married and lives with her mother, she is emancipated because she has entered into a relationship which is inconsistent with the rights of her parents, i.e., she has a child born out of wedlock, she qualifies for Aid to Families with Dependent Children and, but for her mother's refusal to give her permission, she would be married to her live-in boyfriend. Mr. Merghart also asserts that because Carmen's child is now her heir at law instead of her parents, she must be emancipated under the law. Whether or not these facts are consistent with the rights of her parents, the Family Code imposes upon each spouse the duty to support his or her child, and it defines "child" as "a person under 18 years of age who is not and has not been married or who has not had his disabilities of minority removed for general purposes." TEX. FAM. CODE ANN. §§ 44.02, 11.01(1) (Vernon Supps. 1990). There are no cases which interpret the Texas Family Code to relieve a parent of his obligation to support his child under circumstances similar to the Mergharts' case. Carmen Merghart is under the age of 18, is not married, and her disabilities of minority have not been removed. We must leave to the legislature the decision of excluding from the definition of "child" any unmarried person under 18 years of age who has a child of his own. Until that decision is made, Mr. Merghart must pay child support as the Family Code requires. See id. at § 14.05 (Vernon 1986 and Vernon Supp. 1990). Cross-points of error four and five are overruled. The award for child support arrearage is clearly separable from the remaining portions of the trial court's judgment without any unfairness to the parties, and we order these parts severed. See TEX. R. APP. P. 81(b)(1). We reform the award granted Mrs. Merghart by increasing it from $9,394 to $11,144 together with legal interest at the rate of 10% per annum from the date of the order. We also reform the judgment to exclude the State of Texas from any award. See id. at 80(b)(2). TERRY R. MEANS DO NOT PUBLISHJustice