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Leblanc v. Leblanc

Court of Appeals of Texas, First District

March 27, 2018

MALCOLM EDWIN LEBLANC, Appellant
v.
JEANNE DIANE LEBLANC, Appellee

          On Appeal from the 247th District Court Harris County, Texas Trial Court Case No. 1995-19942

          Panel consists of Justices Higley, Massengale and Lloyd.

          MEMORANDUM OPINION

          Russell Lloyd Justice

         Appellant Malcolm Edwin LeBlanc appeals from the trial court's granting of appellee Jeanne Diane Hartranft's motion for judgment nunc pro tunc. Malcolm raises nine points of error on appeal. The central issue is whether or not the court correctly found that a clerical error existed in an order of the court issued January 31, 2005, which failed to record a ruling of the court setting an amount of child support. In his first, second, third, fourth, fifth, and eighth points of error, Malcolm argues that the trial court erred by concluding that a clerical error existed in the judgment because a copy of that judgment was not admitted into evidence during the hearing on Jeanne's motion for judgment nunc pro tunc. He also challenges the legal sufficiency of the evidence supporting several of the court's fact findings underpinning the court's legal conclusion. In his sixth, seventh, and ninth points of error, Malcolm argues that the trial court erred by entering the judgment nunc pro tunc because he proved his defense of laches, which applies to judgments nunc pro tunc. We affirm the trial court's judgment.

         Background

         Malcolm and Jeanne were divorced in 1995 and Malcolm was appointed as their children's sole managing conservator. In June 2004, Jeanne filed a petition to modify the parent-child relationship in which she asked the trial court to appoint her as sole managing conservator and order Malcom to pay child support. After a hearing on August 27, 2004, the trial court entered temporary orders in which it ordered Malcolm to pay $419.04 per month in child support and $80.07 per month in medical support beginning in September 2004.

          On April 8, 2016, Jeanne filed a motion for judgment nunc pro tunc. According to Jeanne, the trial court signed a final order in her modification suit on January 31, 2005, and although the court had rendered judgment requiring Malcolm pay $435.00 per month in child support, and $108.92 in medical support, the January 31, 2005 order mistakenly omitted the amount of child support. Jeanne attached copies of the January 31, 2005 order, a February 3, 2005 "Employer's Order Withholding From Earning for Child Support, " and the docket sheet in support of her motion.

         A January 31, 2005 docket sheet entry states in part, "Reimb her for med ins $108.92 C/S 435." $108.92 per month in medical support, plus $435 per month in child support equals $543.92 per month in total support obligations. Although the January 31, 2005 order requires Malcolm to pay the $108.92 per month in medical support, the amount of child support awarded was left blank.

         The Withholding Order attached to Jeanne's motion orders Malcolm's employer of record to withhold $543.92 per month to satisfy Malcolm's current support obligations. Malcolm's employer is also ordered to withhold an additional amount of Malcolm's earning for twenty-four months to satisfy his arrearages.

         Malcolm and Jeanne both testified during the hearing on Jeanne's motion for judgment nunc pro tunc. Jeanne testified that she appeared in court in January 2005 for the final hearing in her modification suit, but Malcolm did not attend the hearing.

          Jeanne testified that the trial court granted her petition to modify during the hearing and awarded her child support, but she did not recall the exact amount of support awarded.

         Jeanne also testified that she began receiving paperwork from the Attorney General when the temporary orders were signed in August 2004 and made multiple attempts to initiate enforcement of Malcolm's child support obligations over the years. The first time she tried to enforce Malcolm's child support obligations the AG's office told her that there were no arrears. Believing that the AG's office had made a mistake, Jeanne tried a second time and was told that she was not supposed to receive anything. The third time she tried to enforce Malcolm's child support obligations the AG's office told her that there was a problem with the paperwork. She further testified that she knew that Malcolm was unemployed at times between 2005 and 2016 and that she did make any additional efforts to enforce Malcolm's child support obligations because she thought he would go to jail if he could not pay, and her children did not want their father to go to jail because he was in poor health.

         Malcolm testified that he appeared for the August 2004 hearing in Jeanne's modification suit and that he knew that an order would be sent to his employer to garnish his wages as a result of that hearing. The January 31, 2005 order and a docket entry for August 27, 2004 indicate that the court entered temporary orders on August 27, 2004 in which it awarded Jeanne $419.04 per month in child support and $80.07 per month in medical support. Malcolm testified that he lost his job two weeks after the August hearing and that he was unemployed for eight or nine months. Malcolm did not attend the final hearing in January 2005.

         When asked how he would be harmed by Jeanne delaying the enforcement of the January 31, 2005 order, Malcolm testified that he had worked for several different employers between 2005 and 2016 and that none of his employers had garnished a portion of his wages. He further testified that he was unemployed or earned less money than he was earning in 2004 for portions of this eleven-year period and that, had he known the final, specific amount of child support he was ordered to pay, he would have petitioned the court to reduce his support obligations ...


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