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JULIA L. KURTZ, Appellant v. RONALD D. KURTZ, Appellee
NO. 14-02-01187-CV
COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON
2004 Tex. App. LEXIS 10631
November 30, 2004, Opinion Filed
n3 The Family Code establishes guidelines for child support which are presumed to be reasonable and in the children's best interests. TEX. FAM. CODE ANN. § 154.122 (Vernon 2002). The court may order support above or below the guideline amount
if the evidence rebuts the presumption that application of the guidelines is in the best interest of the children and justifies a variance from the guidelines. Id. § 154.123(a). The guidelines are specifically designed to apply to situations in which the obligor's monthly net resources are $ 6,000 or less. Id. § 154.125. If the obligor's net resources exceed $ 6,000 per month, the court shall apply the percentage guidelines to the first $ 6,000. Id. § 154.126. The court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the children. Id.
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Additionally, under the circumstances, Julia was entitled to pursue child support in excess of the presumptive guidelines. Although Ronald had been paying additional child support, his monthly earnings exceeded $ 6,000 per month and therefore, the trial court could have increased his support obligation above the statutory guidelines if a variance was in fact in the children's best interest. See TEX. FAM. CODE ANN. §§ 154.123 [*17] , 154.126 (Vernon 2002). Although the guideline amounts are presumed to be reasonable, Ronald's voluntary payment of that amount does not necessarily mean he was paying an amount of child support consistent with the best interests of the children. See id. § 154.122(a); Clark v. Jamison, 874 S.W.2d 312, 316-17 (Tex. App.--Houston [14th Dist.] 1994, no writ). Indeed, the trial court could not have concluded Ronald was paying the "appropriate amount" of child support until after a hearing on that very issue.
Further, as a substantive matter, the trial court erred in concluding a court order was not necessary because voluntary payments were being made.
In Texas, agreements concerning child support must be approved by the court. TEX. FAM. CODE ANN. § 154.124 (Vernon 2002); Williams v. Patton, 821 S.W.2d 141, 143-44, 35 Tex. Sup. Ct. J. 65 (Tex. 1991). Thus, even if Julia and Ronald had agreed to the amount of child support being paid, Julia would have no legal recourse in the event Ronald ceased paying voluntarily. Without an order, Julia would be unable to obtain an arrearages judgment or a wage withholding order and enforcement by contempt would [*18] not be available. It was therefore incumbent upon Julia to obtain a court order to ensure that the child support obligation was legally enforceable.
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2004 Tex. App. LEXIS 4338,*;143 S.W.3d 131
IN THE INTEREST OF J.C.K., A MINOR CHILD
No. 10-01-00400-CV
COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO
143 S.W.3d 131;2004 Tex. App. LEXIS 4338
May 12, 2004, Delivered
May 12, 2004, Filed
After a two-part hearing, the district court rendered an order adjudicating Vannatta's status as J.C.K.'s biological father and establishing Vannatta and Kolacek as joint managing conservators.
The court ordered Vannatta to pay: prospective child support of $ 378 per month; n1 $ 41,770 in retroactive child support to be paid at the rate of $ 150 per month; reimbursement for $ 7,310 of prenatal and postnatal health care expenses to be paid at the rate of $ 50 per month; $ 5,000 in trial attorney's fees to be paid at the rate of $ 50 per month; and $ 6,000 in appellate attorney's fees.
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MITIGATING FACTORS
Vannatta contends in his ninth through eleventh issues that the court abused its discretion by awarding $ 41,770 in retroactive child support without giving proper consideration to mitigating factors including: the cost of his other sons' post-secondary education, the debt service that would be imposed on him as a result of the child support order, the statutory considerations provided by section 154.131(b),
Kolacek's thirteen-year delay in telling him of J.C.K.'s birth, the lack of a meaningful relationship between Vannatta and J.C.K. due to this passage of time, and the undue financial hardship that would be imposed on Vannatta and his family as a result of the child support order.
Vannatta focuses primarily on Kolacek's delay in telling him of J.C.K.'s birth. However, Kolacek did retain an attorney who notified Vannatta before J.C.K.'s birth that Kolacek was pregnant with his child. In response, [*20] Vannatta consulted with an attorney to determine his rights and responsibilities. Vannatta's attorney mailed a letter to Kolacek's attorney requesting that Vannatta be notified when the child was born and advising that Vannatta would agree to blood testing to determine paternity. Other than a sighting in a bar on one occasion, the parties had no further contact with each other until Kolacek had the Attorney General institute this proceeding.
The version of section 154.131(b) applicable to this case requires a court to consider whether:
(1) the mother of the child had made any previous attempts to notify the biological father of his paternity or probable paternity;
(2) the biological father had knowledge of his paternity or probable paternity;
(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor's family; and
(4) the obligor has provided actual support or other necessaries before the filing of the action.
Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 154.131(b), 1995 Tex. Gen. Laws 113, 164 (amended 2001) (current version at TEX. FAM. CODE ANN. § 154.131(b) (Vernon 2002)). [*21]
The main thrust of Vannatta's closing argument to the trial court was that any retroactive child support should be limited because Kolacek failed to notify him of J.C.K.'s birth for thirteen years. The court stated in its Additional Finding of Fact No. 9 that it took into consideration the financial hardship on Vannatta when it ordered retroactive child support.
Vannatta presented no evidence regarding his sons's anticipated post-secondary education expenses. He did not make the "debt service" argument before the trial court which he contends in his ninth issue the court should have considered as a mitigating factor.
The only basis on which Vannatta concludes that the trial court failed to consider the mitigating factors he presented is the fact that the court chose to award the full amount of retroactive child support authorized by the statutory guidelines. However, the court's decision to award the full amount of retroactive support could also be construed as a decision that the mitigating factors presented by Vannatta did not warrant a reduction in the amount of retroactive support.
Section 154.131 vests a trial court with discretion to determine whether to award retroactive [*22] child support and the amount of that support. See In re Valadez, 980 S.W.2d 910, 913 (Tex. App.--Corpus Christi 1998, pet. denied); In re S.E.W., 960 S.W.2d 954, 956 (Tex. App.--Texarkana 1998, no pet
.). Because Kolacek told Vannatta of his probable paternity before J.C.K.'s birth, the trial court could have determined that Kolacek was not solely responsible for the delay in litigating Vannatta's paternity. Accordingly, we cannot say that the trial court abused its discretion when it ordered Vannatta to pay the retroactive child support awarded. Vannatta's ninth through eleventh issues are overruled.
INTEREST
Vannatta contends in his twelfth issue that the court abused its discretion by requiring him to pay the statutory rate of interest (12 percent per annum) for the retroactive child support awarded. However, Vannatta acknowledges that the statute applicable to this case provided for interest to accrue at that rate. See Act of May 26, 1995, 74th Leg., R.S., ch. 751, § 53, 1995 Tex. Gen. Laws 3888, 3907 (amended 2001) (current version at TEX. FAM. CODE ANN. § 157.265(c) (Vernon 2002)). Vannatta cites only the [*23] 2001 amendment to section 157.265(c) (reducing the applicable rate to 6 percent) as support for his contention.
Vannatta argues that the court could have somehow ordered him to pay retroactive child support without reducing the retroactive support award to judgment. However, he fails to explain how the court could have rendered an enforceable order for retroactive child support without reducing that order to judgment.
The court would have abused its discretion if it had failed to correctly apply the applicable law in this case. See Kuntz, 124 S.W.3d at 181; Stevens, 84 S.W.3d at 722; D.S., 76 S.W.3d at 516. Vannatta's twelfth issue is overruled.
HEALTH CARE EXPENSES
Vannatta contends in his thirteenth through fifteenth issues respectively that the court abused its discretion by ordering him to reimburse Kolacek for prenatal and postnatal health care expenses because: (1) Kolacek failed to lay a proper predicate for the admission of testimony she offered in support of the claim; (2) the record contains no evidence or factually insufficient evidence to support the amount of health care expenses for which reimbursement was ordered; [*24] and (3) it was inequitable for the court to require Vannatta to pay for health care expenses because he had a policy of health insurance in place which would have covered these expenses had Kolacek timely notified him of J.C.K.'s birth.
Kolacek offered in evidence properly authenticated business records to prove a portion of the health care expenses. For the remainder of the expenses, she provided testimony, relying to some degree on written summaries prepared by her attorney. Kolacek testified that she brought receipts, cancelled checks, and other documents detailing these expenses to the attorney who compiled the expenditures in two lists. The first of these lists, admitted as Defendant's Exhibit 6, details $ 12,985 in health care expenses. $ 7,113 of these expenses are documented by other exhibits admitted in evidence. Kolacek provided testimony to substantiate the other $ 5,872 referenced in this list. Vannatta's counsel repeatedly objected to Kolacek's testimony on the basis that her testimony is not the best evidence of these expenses and that documentary evidence should be offered to prove the expenses.
Kolacek also testified about the average monthly expenses she incurred [*25] in caring for J.C.K. She referred to a document, later admitted in evidence as Petitioner's Exhibit P-43, prepared by her attorney as she testified. Vannatta's counsel again objected that Kolacek's testimony is not the best evidence of these expenses and that supporting documents should be offered to prove the expenses. The court overruled the objection and granted Vannatta a running objection. Kolacek testified about her average monthly expenses from J.C.K.'s birth through the date of the hearing. At the conclusion of Kolacek's testimony, the court admitted, over Vannatta's objection, Petitioner's Exhibit P-43.
Kolacek's testimony (supported by the exhibit) claims average monthly expenses from 1984 to 1989 of $ 89 for medical care and $ 20 for medications. From 1990 to 1995, she claims average monthly expenses of $ 20 for medical care and $ 10 for medications. From 1996 to 1998, she claims average monthly expenses of $ 72 for medical care and $ 10 for medications. n8
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 The court stated in Additional Finding of Fact No. 8 that it was awarding retroactive child support through December 1997. Vannatta assumes for purposes of the appeal that the court's order for payment of prenatal and postnatal health care expenses likewise covers expenses Kolacek incurred through December 1997. The record seems to support this assumption, so we do not recount that portion of the evidence which describes Kolacek's expenses from 1999 through 2001.
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Vannatta characterizes Kolacek's testimony as the equivalent of a summary of the contents of voluminous writings as contemplated by Rule of Evidence 1006. See TEX. R. EVID. 1006. Thus, he contends that, consistent with Rule 1006, the voluminous writings themselves (i.e., Kolacek's receipts, etc.) should have been made available to him for inspection. Kolacek counters that she testified from personal knowledge and characterizes the documents as writings used to refresh her memory under Rule of Evidence 612. n9 Id. 612.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 We note, however, that a writing used to refresh memory should not be admitted in evidence, except for impeachment purposes. See Yates v. State, 941 S.W.2d 357, 363 (Tex. App.--Waco 1997, pet. ref'd); Ogrydziak v. Ogrydziak, 614 S.W.2d 474, 476 (Tex. Civ. App.--El Paso 1981, no writ); 1 STEVEN GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVID. § 612.2 (3d ed. 2002).
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A witness with personal knowledge may testify to expenses incurred without [*27] providing documentation to substantiate the testimony. See Cockrell v. Republic Mortg. Ins. Co., 817 S.W.2d 106, 112 (Tex. App.--Dallas 1991, no writ); Jackman v. Jackman, 533 S.W.2d 361, 362 (Tex. Civ. App.--San Antonio 1975, no writ); 2 STEVEN GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVID § 1002.1 (3d ed. 2002). Kolacek stated on several occasions that she was testifying from personal knowledge with regard to the health care expenses. Kolacek's counsel made copies of the summaries available to Vannatta's counsel during trial. See TEX. R. EVID. 612. Thus, we conclude that the court did not abuse its discretion by permitting Kolacek to testify about her health care expenses or by permitting her to refer to the summaries during her testimony. Vannatta's thirteenth issue is overruled.
Kolacek's testimony provides some evidence and factually sufficient evidence to support the court's award of prenatal and postnatal health care expenses. Accordingly, Vannatta's fourteenth issue is overruled.
Even though Kolacek did not notify Vannatta that she had given birth, the fact that Vannatta knew she was pregnant and that he may be the father of the child [*28] is some evidence from which the court may have concluded that Vannatta bears some responsibility for the delay in the initiation of parentage proceedings. Therefore, we cannot say that the court abused its discretion by ordering Vannatta to pay a portion of Kolacek's prenatal and postnatal health care expenses. Vannatta's fifteenth issue is overruled.
ATTORNEY'S FEES
Vannatta contends in his sixteenth and seventeenth issues respectively that the court abused its discretion by characterizing the trial attorney's fees awarded as child support because this is not a proceeding to recover delinquent child support and because the characterization would subject him to a constitutionally-prohibited imprisonment for debt if he failed to pay as ordered.
The portion of the court's order at issue states as follows:
The court finds that Respondent, THOMAS JAKE VANNATTA, should be ordered to pay a portion of KERRIE KOLACEK'S attorney's fees in the sum of Five Thousand and no/100ths Dollars ($ 5,000.00) and GRANTS JUDGMENT against Respondent in favor of STEPHEN N. SMITH in that amount, with interest at the rate of ten percent (10%) per annum. IT IS ORDERED that the attorney's fees, which [*29] were incurred in relation to the child and are in the nature of child support, are taxed as costs, and Respondent, THOMAS JAKE VANNATTA, is ORDERED to pay said judgment by paying STEPHEN N. SMITH . . . by cash, cashier's check, or money order the sum of $ 50 per month, beginning June 15, 2001, payable on or before that date and on or before the same day of each month thereafter until the judgment is paid in full.
A court may order the payment of attorney's fees as costs in any suit affecting the parent-child relationship. See Act of Apr. 11, 1997, 75th Leg., R.S., ch. 15, § 2, 1997 Tex. Gen. Laws 55, 55 (amended 2003) (current version at TEX. FAM. CODE ANN. § 106.002(a) (Vernon Supp. 2004)); Goheen v. Koester, 794 S.W.2d 830, 836 (Tex. App.--Dallas 1990, writ denied).
Generally an attorney's fee award cannot be enforced by contempt because of the constitutional prohibition against imprisonment for debt. See TEX. CONST. art. I, § 18; Wallace v. Briggs, 162 Tex. 485, 488-89, 348 S.W.2d 523, 525-26, 4 Tex. Sup. Ct. J. 610 (1961); In re Moers, 104 S.W.3d 609, 611 (Tex. App.--Houston [1st Dist.] 2003, no pet.). However, [*30] attorney's fees awarded in a proceeding to enforce a child support order can be enforced by contempt. See Ex parte Helms, 152 Tex. 480, 486, 259 S.W.2d 184, 188 (1953); Moers, 104 S.W.3d at 611.
This is not a proceeding to enforce a child support order. Thus, the trial court should not have characterized the attorney's fee award as being "in the nature of child support." Accordingly, we will modify that portion of the judgment by deleting the phrase, "which were incurred in relation to the child and are in the nature of child support." Vannatta's sixteenth issue is sustained. We do not reach his seventeenth issue.
CONCLUSION
We affirm those portions of the judgment awarding retroactive child support and reimbursement for prenatal and postnatal health care expenses. We modify that portion of the judgment awarding trial attorney's fees by deleting the phrase, "which were incurred in relation to the child and are in the nature of child support," and affirm that portion of the judgment as modified.
We reverse that portion of the judgment awarding prospective child support and remand this cause to the trial court for further proceedings consistent [*31] with this opinion.
FELIPE REYNA
Justice
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