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In re J.P.

Court of Appeals of Texas, Sixth District, Texarkana

December 11, 2013

IN THE INTEREST OF J.P. AND S.P., CHILDREN

Submitted: November 26, 2013

On Appeal from the 321st District Court Smith County, Texas Trial Court No. 11-2679-D

Before Morriss, C.J., Carter and Moseley, JJ.

MEMORANDUM OPINION

Josh R. Morriss Chief Justice

Robert Phillips' punitive contempt sentence in Smith County[1] of 180 days' confinement in the county jail was imposed as a result of his failure to pay court-ordered medical and child support. The sentence was suspended, and Phillips was placed on community supervision for a period of 120 months. We affirm the judgment of the trial court because (1) payment of the original arrearages did not avoid a contempt finding, (2) imposition of a 120-month community-supervision term was not an abuse of discretion, (3) Phillips' attempted appeal of the earlier child support order is untimely, and (4) the affirmative defense to a contempt finding was not proven.

In May 2012, Phillips was ordered to pay monthly child support of $309.65 and monthly medical support of $25.00 for his two children, J.P. and S.P. When Phillips failed to make his support payments, the Texas Attorney General's Office filed a motion for enforcement of child and medical support, alleging repeated violations of the support order. The motion claimed past due support from May 2012 through September 2012, plus interest, allegedly totaling $1, 678.28. The Attorney General's Office asked the trial court to enter a judgment on arrearages, to hold Phillips in contempt, and to punish him by commitment to the county jail for not more than 180 days. The hearing was set for May 20, 2013.

In December 2012, Phillips paid $3, 000.00 for past due child and medical support, resulting in an overpayment of $297.69 at the time. Following this payment, Phillips made no further medical or child support payments for the months of January through May 2013. At the time of the May hearing, Phillips owed past due medical and child support in the amount of $1, 377.61.

Phillips, who waived the right to counsel and represented himself at the May hearing, explained that he is self-employed in the lawn care business. Because his work is sporadic, he does not receive a regular paycheck. For this reason, Phillips did not make any child or medical support payments between May and October 2012. The December 2012 payments totaling $3, 000.00 were the only support payments he made.

At the conclusion of the hearing, the trial court entered an order enforcing child support and medical support obligations. Two provisions of the order are primary to this appeal. First, the court found that, although Phillips could have timely paid court-ordered child and medical support from June through September 2012, he failed to do so. Phillips was therefore held in punitive contempt for failing to make each such payment, and was committed to county jail for 180 days for each separate act of contempt. The commitments were ordered to run concurrently. The court suspended jail time and placed Phillips on community supervision for 120 months from the date of the order, in accordance with Section 157.212 of the Texas Family Code. See Tex. Fam. Code Ann. § 157.212 (West 2008). Second, the court confirmed past due child support as of April 30, 2013, as $942.58, and past due medical support as of the same date in the amount of $100.38 and entered judgment for those past due amounts.

(1) Payment of the Original Arrearages Did Not Avoid a Contempt Finding

The motion for enforcement was based on Phillips' failure to pay medical and child support for the months of May 2012 through September 2012. Phillips contends that, because he paid the full amount of this arrearage in December 2012, well before the May 2013 hearing, the court had no basis for its contempt finding. The law in effect at the time of the hearing permitted an obligor to avoid a finding of contempt:

A court may not find a respondent in contempt of court for failure to pay child support if the respondent appears at the hearing with a copy of the payment record or other evidence satisfactory to the court showing that the respondent is current in the payment of child support as ordered by the court.

Tex. Fam. Code Ann. § 157.162(d) (West 2008).[2] It is undisputed that Phillips made three payments of $1, 000.00 each on past due medical and child support in December 2012, bringing him current on all obligations due. Although Phillips was current on past due medical and child support as those amounts were alleged in the enforcement motion, evidence presented at the hearing revealed that additional arrearages accrued during the months of January through April 2013. These arrearages remained outstanding at the time of the May 2013 enforcement hearing.[3]

The State contends that because arrearages remained outstanding at the time of the hearing, the trial court was empowered to hold Phillips in contempt. In support of this contention, the State relies on In re Office of Atty. Gen., No. 11-0255, 2013 WL ...


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