IN THE INTEREST OF J.A.L., C.C.L., JR., C.N.L., AND M.R.L., CHILDREN
Appeal from 257th District Court Harris County, Texas Trial
Court Cause No. 2013-36719
consists of Justices Boyce, Jamison, and Brown.
William J. Boyce Justice
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.
parties' final divorce decree was signed on October 31,
2008, and obligated Father to make monthly $5, 000 child
support payments to 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
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."
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.
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.
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
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
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.'"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 ...