Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 255th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-04-00553
Justices Francis, Brown, and Schenck
appeals the trial court's modification order in a suit
affecting the parent-child relationship and judgment for
child support arrearage. In four issues, Father contends the
trial court erred by (1) failing to make findings of fact and
conclusions of law, (2) denying him due process by continuing
the hearing in the absence of appellant's counsel, (3)
failing to address possession and custody issues in the
judgment, and (4) ordering more than 50% of his disposable
earnings withheld for child support and arrearage payments.
We sustain Father's issue regarding the child support and
arrearage payments but overrule all other issues. We remand
to the trial court for further proceedings.
and Father divorced in 2004. Custody of their minor son,
T.J.S., was given to Mother, and Father was ordered to pay
monthly child support of $329. Ten years later, Mother filed
a motion to confirm child support arrearages of more than
$48, 000 and a separate petition to modify the parent-child
relationship to appoint her as sole managing conservator and
to increase Father's child support obligation to meet
statutory guidelines. Father filed an answer and countersuit,
which he subsequently amended and supplemented several times,
seeking to modify conservatorship to name him as the parent
with the exclusive right to designate T.J.S.'s primary
residence, for child support, and for reimbursement against
the child support arrearage. Alternatively, he asked the
trial court to decrease his monthly support payments.
hearing on the motions and petitions began on June 25, 2014.
Both Mother and Father testified about matters related to the
arrearage, Father's earnings, and why each believed
T.J.S. should live with him or her. At the conclusion of
their testimony, the trial court instructed the parties to
return to court at 9 a.m. August 14, which would give the
AG's office time to calculate the arrearage. In the
meantime, the trial court ordered that a $500 disability
benefit Father received for T.J.S. from Social Security be
redirected to Mother for the months of June, July, and
August. The court also ordered Father not to drive with
T.J.S. in the car until he obtained a driver's license.
the hearing began on August 14, neither Father nor
Father's counsel were present. The AG produced evidence
of the amount of arrearage. At the conclusion of the hearing,
the trial judge noted she had interviewed T.J.S. The judge
then found it was in the child's best interest for the
parents to remain joint managing conservators with the Mother
determining primary residence in Dallas County. She ordered
the $500 disability benefit redirected to Mother and ordered
Father to pay $1, 000 on the arrearage. The trial court's
written judgment left the custody arrangements unchanged,
increased Father's child support obligation to $500 a
month, confirmed an arrearage of $53, 874.91, ordered Father
to pay $1, 000 each month until the total arrearage and
interest are paid in full, and denied all relief not
expressly granted. Father appealed.
begin with Father's third issue in which he complains the
trial court failed to address "any of the issues related
to child custody and possession." Father argues he
pleaded for the original decree to be modified to (1) appoint
him joint managing conservator with the right to designate
the child's primary residence, (2) include temporary
orders, and (3) include a mutual injunction enjoining the
parties from entering upon each other's property. He
contends the trial court "utterly failed to address any
issue other than child support arrearages."
order in this case specifically named Mother and Father joint
managing conservators and gave Mother the right to designate
the child's primary residence. It also made provisions
for child support and confirmed the arrearage. In its final
paragraph, the order stated: "IT IS ORDERED that all
relief requested in this case and not expressly granted is
denied." Thus, contrary to appellant's assertion
otherwise, the plain language of the order resolved all
issues in the case, including Father's request for
custody. We overrule the third issue.
first issue, Father contends the trial court erred by failing
to make findings of fact and conclusions of law, although
may request the trial court to state its findings of fact and
conclusions of law in writing following a bench trial.
See Tex. R. Civ. P. 296. If findings of fact and
conclusions are properly requested, the trial court has a
mandatory duty to file them. See Cherne Indus., Inc. v.
Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). On appeal,
it is appellant's burden to show reversible error.
Meachum v. Comm'n for Lawyer Discipline, 36
S.W.3d 612, 615 (Tex. App.- Dallas 2000, pet. denied).
brief, Father sets forth the proper procedure for requesting
findings of fact and conclusions of law as set out in the
rules of civil procedure. See Tex. Rs. Civ. P. 296,
297. Father then asserts the trial court failed to comply
with the procedure after he made his request and complains he
has been prevented from "properly briefing certain
issues." He does not, however, identify any specific
issue he has been unable to brief nor has he advanced any
argument illustrating how he sustained any specific harm as a
result of the trial court's failure to submit such
findings and conclusions. Rather, he complains the trial
court failed to rule on "custody issues"
that were properly pleaded. We have previously concluded that
the trial court's order resolved all issues, including
custody. Because Father has failed to identify any issue on
which he needed findings, we overrule his first issue.
second issue, Father contends the trial court denied him due
process by going forward with the trial on August 14 in the
absence of his counsel, who he asserts was at a hearing in
the body of this issue, Father quotes and summarizes portions
of two cases, Dolgencorp of Texas, Inc. v. Lerma,
288 S.W.3d 922 (Tex. 2009) and United States Gov't v.
Marks, 949 S.W.2d 320 (Tex. 1997), but he does not apply
either to the facts of this case. Other than a reference to
an "off the record" bench conference, Father makes
no attempt to outline the particular facts he relies on for
this issue or ...