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In re J.A.L.

Court of Appeals of Texas, Fourteenth District

September 19, 2017


         On Appeal from 257th District Court Harris County, Texas Trial Court Cause No. 2013-36719

          Panel consists of Justices Boyce, Jamison, and Brown.


          William J. Boyce Justice

         Mother appeals the trial court's order granting Father's motion to dismiss her child support enforcement action. Father invoked res judicata, which precludes the relitigation of a claim that was raised or could have been raised in an earlier proceeding. Because the child support arrearages at issue meet neither condition, Mother's claims are not precluded by res judicata and we reverse the trial court's order granting Father's motion to dismiss.


         The parties' final divorce decree was signed on October 31, 2008, and obligated Father to make monthly $5, 000 child support payments to Mother.

         Mother filed her first enforcement motion on April 9, 2013, and sought relief for Father's failure to maintain his child support obligations. The first enforcement motion listed Father's monthly child support obligations from November 1, 2008, through April 1, 2013; each of the 54 monthly listings included the amount paid by Father, the date on which the payment (if any) was made, and the total balance owed. In her first enforcement motion, Mother requested "confirmation of all arrearages and rendition of judgment plus interest . . . ." Mother's motion also asked that Father "be held in contempt, jailed, and fined for each failure to comply with the Court's order from the date of this filing to the date of the hearing on this motion." Following her request for contempt, Mother's motion included four additional monthly listings from May 1, 2013, through August 1, 2013, for which she anticipated that Father would not make his required child support payments.

         The trial court held a hearing on Mother's first enforcement motion on March 3, 2014. In its March 2014 order, the trial court granted Mother's motion; held Father in contempt for failure to maintain his monthly child support obligations; and signed a judgment in Mother's favor for arrearages. This order listed 58 months for which Father failed to comply with his child support obligations and concluded that, "as of August 1, 2013, [Father] owed child support in the amount of $168, 750.00 plus interest." The trial court also held Father in contempt for each of the 58 separate violations. The March 2014 order included a Mother Hubbard clause stating that "[a]ll relief requested and not expressly granted is denied."

         The proceedings underlying this appeal arose from Mother's second enforcement motion filed on July 31, 2015. Mother's second motion sought relief for Father's failure to make child support payments from September 1, 2013, through March 1, 2014. Father filed a motion to dismiss asserting that Mother's July 2015 enforcement motion sought to recover arrearages that were or should have been addressed in connection with the April 2013 enforcement proceeding. Father asserted that the April 2013 enforcement proceeding should have resolved all missed payments through the March 2014 hearing held in that proceeding; therefore, he contended that res judicata precluded litigation in the July 2015 enforcement action of arrearages that accrued between September 2013 and March 2014. The trial court granted Father's motion to dismiss.

         Standard of Review

         As an affirmative defense, res judicata should be addressed in a motion for summary judgment or at trial rather than through a motion to dismiss. See In re Sisk, No. 14-13-00785-CV, 2014 WL 5492804, at *4 (Tex. App.-Houston [14th Dist.] Oct. 30, 2014, pet. denied) (mem. op.); In re D.K.M., 242 S.W.3d 863, 865 (Tex. App.-Austin 2007, no pet.). On appeal, the parties agree that the trial court's order granting Father's motion to dismiss is properly construed as an order granting a motion for traditional summary judgment.

         We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under Rule 166a(c), traditional summary judgment on an affirmative defense is proper when the moving party pleads and conclusively establishes each element of its asserted defense as a matter of law. Tex.R.Civ.P. 166a(c); Sci. Spectrum, Inc. v Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the moving party establishes its right to a traditional summary judgment, the burden shifts to the nonmoving party to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. Navy v. Coll. of the Mainland, 407 S.W.3d 893, 898 (Tex. App.- Houston [14th Dist.] 2013, no pet.). When reviewing a traditional summary judgment, we take as true all evidence favorable to the nonmoving party and indulge every reasonable inference in the nonmoving party's favor. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).


         The trial court concluded that res judicata precludes Mother's second enforcement motion insofar as Mother asserted claims for arrearages that accrued from September 2013 through March 2014. Mother challenges the trial court's conclusion on appeal and raises four arguments: (1) res judicata does not apply because these claims were not litigated and could not have been litigated in the first enforcement proceeding; (2) Father did not meet his summary judgment burden; (3) notice requirements applicable to enforcement proceedings foreclosed Mother's ability to recover in the first enforcement proceeding for the September 2013-March 2014 arrearages; and (4) recent decisions from the Supreme Court of Texas limit the use of affirmative defenses in enforcement proceedings. Because we agree with her first contention and conclude that res judicata does not bar Mother's enforcement of the September 2013-March 2014 arrearages, we will not address Mother's other arguments on appeal.

         I. Res Judicata

         The doctrine of res judicata, or claim preclusion, bars a second action by parties on matters that were "actually litigated in a previous suit, as well as claims 'which, through the exercise of diligence, could have been litigated in a prior suit.'"[1]Hallco Tex., Inc. v. McMullen Cty., 221 S.W.3d 50, 58 (Tex. 2006) (quoting Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 799 (Tex. 1992)). As with other final judgments, res judicata applies to arrearage judgments. Prior v. Prior, No. 01-06-01185-CV, 2008 WL 5455691, at *3 (Tex. App.-Houston [1st Dist.] Dec. 31, 2008, no ...

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