Opinion
Nos. 04-21-00038-CV & 04-21-00339-CV
03-30-2022
In the INTEREST OF R.H.B., III and C.D.B., Children In re Rolando H. Briones, II
APPELLANT ATTORNEY: Jessica L. Lambert, The Lambert Law Firm, 750 E. Mulberry Ave., Suite 407, San Antonio, TX 78212. APPELLEE ATTORNEY: Richard Porter Corrigan II, Amber M. Liddell Alwais, Orsinger, Nelson, Downing & Anderson, LLP, 310 S. St. Mary's Street, 26th Floor, San Antonio, TX 78205.
APPELLANT ATTORNEY: Jessica L. Lambert, The Lambert Law Firm, 750 E. Mulberry Ave., Suite 407, San Antonio, TX 78212.
APPELLEE ATTORNEY: Richard Porter Corrigan II, Amber M. Liddell Alwais, Orsinger, Nelson, Downing & Anderson, LLP, 310 S. St. Mary's Street, 26th Floor, San Antonio, TX 78205.
Sitting: Patricia O. Alvarez, Justice, Beth Watkins, Justice, Lori I. Valenzuela, Justice
Opinion by: Beth Watkins, Justice
In this consolidated direct appeal and original proceeding, appellant/relator Rolando H. Briones, II challenges two orders in a suit affecting the parent-child relationship. We deny Briones's petition for writ of mandamus, modify the trial court's judgment, and affirm the judgment as modified.
BACKGROUND
Briones and appellee/real party in interest Krista Bragg divorced in 2016. Their August 30, 2016 final decree of divorce ("the 2016 decree") provided, inter alia: (1) Briones would pay child support of $2,137.50 per month and contractual alimony of $2,000 per month; (2) Briones would maintain health insurance for the children and pay 75% of their unreimbursed health care expenses; (3) as part of the marital property division, Briones would pay Bragg $72,900 by September 30, 2015, $8,000 by October 15, 2015, and $25,000 by January 30, 2016 ("the W-12, W-13, and W-14 payments"); (4) Briones would repay "any sums withdrawn by him [from the children's 529 accounts], including interest or fees incurred as a result of such withdrawal within eighteen (18) months"; and (5) Briones would pay for the children's piano and swim lessons and specified percentages of their private school tuition.
On September 29, 2016, Briones filed a motion to modify the 2016 decree. Bragg filed a counterpetition to modify followed by four motions to enforce the 2016 decree. Three of those motions are relevant to this appeal:
1. Bragg's Motion for Enforcement of Child Support alleged that on multiple occasions, Briones failed to pay child support and his share of the children's piano lessons, swim lessons, and health care expenses. She requested a "confirmation of all arrearages and rendition of judgment for all arrearages," jail time, and a fine of up to $500 "for each violation alleged" in her motion.
2. Bragg's Petition for Enforcement of Spousal Maintenance alleged that on seventeen occasions, Briones failed to pay alimony. She sought a contempt finding, punishment by jail and fine for each violation, and a "money judgment, including interest, against" Briones for the total unpaid amount.
3. Bragg's Petition for Enforcement of Property Division by Contempt alleged twenty-seven separate violations of the 2016 decree, including the seventeen alimony violations alleged in the Petition for Enforcement of Spousal Maintenance. The other alleged violations included complaints that Briones had not repaid the funds he withdrew from the children's 529 accounts and had not made the W-12, W-13, and W-14 payments. Bragg requested that Briones be held in contempt, jailed, and fined for each violation alleged. She also requested a clarification of any portion of the 2016 decree that was not specific enough to be enforced by contempt.
Bragg amended her motions several times to increase the number of violations alleged, to add an allegation that Briones had not paid his share of the children's school tuition, and to request further clarifications of the 2016 decree. She also amended her Petition for Enforcement of Property Division to request a money judgment for the amounts she claimed were owed to her.
On August 7, 2019, the trial court appointed Ana Laura Hessbrook to serve as an amicus attorney. The order appointing Hessbrook specified that Bragg "is responsible for Ms. Hessbrook's fees but she may request realignment of these fees at the trial on the merits."
The parties tried their enforcement and modification motions to the bench in September of 2019. On September 10, 2019, the parties announced on the record that they had reached agreements on certain issues in the modification action. On September 11, 2019, the trial court orally announced, inter alia, that it:
• approved the parties’ agreements "on the modifications" and "render[ed]
those [agreements] Orders of the Court";
• approved the parties’ agreement on the "past due amounts" of child support and medical support, found Briones in contempt for violating the 2016 decree's child support and health care provisions, and ordered him to pay a "$10,000 sanction fine" for those violations;
• ordered Briones and Bragg to split Hessbrook's amicus fees;
• found that the piano, swimming, and tuition provisions of the 2016 decree were not enforceable by contempt "and will require additional evidence to make the requested clarification Orders";
• found Bragg's spousal maintenance claim was not enforceable by contempt;
• denied Briones's request for attorney's fees;
• found Briones in contempt for failing to make the W-12, W-13, and W-14 payments; awarded Bragg a money judgment for the amount of those payments; and ordered Briones to pay "a sanction fine for contempt in the amount of $50,000" for his failure to make those payments;
• found the "funds as stated in the divorce decree were in existence at the time the decree was rendered";
• awarded Bragg a money judgment for unpaid alimony;
• awarded Bragg, as trustee of the children's 529 accounts, "judgment for [Briones's] removal of funds" from those accounts and ordered Briones to pay specific amounts the court found he owed to each child's account;
• found Briones's "multiple continued violations of the Order are egregious and that sanctions are appropriate and warranted and necessary and required";
• awarded Bragg attorney's fees, subject to the presentation of additional evidence on segregation of recoverable fees from unrecoverable fees; and
• awarded Bragg court costs of $6,166.30.
Between September 11, 2019 and August 10, 2020, neither party raised any complaints about the trial court's oral rulings or sought the entry of a written order.
On August 10, 2020, Bragg filed a motion to enter a written order. After a hearing, the trial court orally denied Bragg's claim for attorney's fees, concluding she had not segregated recoverable fees from unrecoverable fees. It also orally ruled that the amounts it had previously ordered Briones to pay "can all be classified as domestic support obligations" and would be paid in monthly installments of $800. On October 21, 2020, the trial court signed two written orders—one on Bragg's enforcement motions, and one on the parties’ competing modification petitions (the Modification Order). In addition to the contempt rulings the court orally announced on September 11, 2019, the October 21, 2020 enforcement order found Briones in contempt "for wrongfully removing funds from" the children's 529 accounts. The written order did not assess any penalties for this contempt finding, but instead repeated the court's previously announced money judgment of separate amounts to be paid toward each child's account.
Bragg sought reconsideration of the denial of her attorney's fees, and the trial court agreed to hear additional evidence on that issue. On February 3, 2021, the trial court signed a new order on Bragg's enforcement motions (the Enforcement Order). The February 3, 2021 Enforcement Order differed from the October 21, 2020 written enforcement order in two respects: (1) it awarded Bragg attorney's fees of $20,175; and (2) it made the $10,000 contempt fine for Briones's failure to pay child support payable "to the General Fund for the State of Texas" and removed a designation describing that fine as "additional child support owed." The Enforcement Order did not otherwise alter the rulings the trial court had memorialized in writing on October 21, 2020. That same day, Briones filed a notice of appeal and a motion for extension of time to file his notice of appeal.
Briones timely filed a request for findings of fact and conclusions of law regarding both orders signed on October 21, 2020. Accordingly, his deadline to file a notice of appeal from those orders was January 19, 2021. Tex. R. App. P. 26.1(a). Because Briones filed a motion for extension of time within fifteen days of the date his notice of appeal was due, we granted his motion and deemed his notice of appeal timely filed. Id. R. 26.3.
On March 3, 2021, Briones filed a "Motion to Set Aside, Correct, Amend, and/or Reform Judgment." This motion was Briones's first written challenge to the contempt rulings. Because the Honorable Karen Pozza—the judge who had originally heard and decided the parties’ enforcement and modification motions—had retired, Briones set his motion for hearing before the newly elected judge of the same court, the Honorable Tina Torres. Judge Torres declined to hear Briones's motion and signed an order referring the matter to Judge Pozza, who had been appointed to sit as a visiting judge. Judge Pozza subsequently denied Briones's motion.
On August 4, 2021, Briones filed his appellant's brief in the direct appeal. On August 13, 2021, Briones filed a petition for writ of mandamus. We granted Briones's motion to consolidate the direct appeal and the mandamus proceeding.
ANALYSIS
Mandamus
Briones's petition for writ of mandamus asserts four challenges to the trial court's contempt rulings. He also argues that because the trial court judge who made the contempt rulings retired during this litigation, the successor judge abused her discretion by refusing to hear Briones's Motion to Set Aside, Correct, Amend, and/or Reform Judgment.
Standard of Review and Applicable Law
A trial court's contempt ruling cannot be reviewed on direct appeal. In re C.C.E. , No. 04-20-00416-CV, 2021 WL 3173913, at *2 (Tex. App.—San Antonio July 28, 2021, no pet.) (mem. op.). Where, as here, the trial court does not order the contemnor confined, a contempt judgment must be challenged through a petition for writ of mandamus. Id. To be entitled to mandamus relief, the contemnor/relator must show a clear abuse of discretion or a violation of a duty imposed by law and that there is no other adequate remedy by law. In re State Bar of Tex. , 113 S.W.3d 730, 733 (Tex. 2003) (orig. proceeding) ; In re Smith , No. 04-08-00285-CV, 2008 WL 2116594, at *1 (Tex. App.—San Antonio May 21, 2008, orig. proceeding) (per curiam) (mem. op.).
"Mandamus is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court." Rivercenter Assocs. v. Rivera , 858 S.W.2d 366, 367 (Tex. 1993). While mandamus is not an equitable remedy, "its issuance is largely controlled by equitable principles." Id. Because "[e]quity aids the diligent and not those who slumber on their rights," an unjustified delay may waive the relator's right to seek mandamus relief. Seeid. at 367–68. Application
Contempt Rulings (Mandamus Issues 1–4)
Briones filed his petition for writ of mandamus on August 13, 2021, twenty-three months after the trial court orally issued its contempt rulings and ten months after it memorialized those rulings in writing. Briones argues this delay should not bar him from seeking mandamus relief because "it is only the enforcement/contempt order signed on February 3, 2021 ... that is the subject of this mandamus," and he acted diligently in challenging that order.
We disagree. The record shows the trial court did not alter its contempt findings in any meaningful way after October 21, 2020, and the punishments assessed against Briones for that contempt have remained consistent since September 11, 2019. While the February 3, 2021 order changed the recipient of the $10,000 sanction from Bragg to the State of Texas, Briones does not complain about that alteration. Additionally, while the February 3, 2021 order awarded Bragg attorney's fees the trial court had previously denied, that fee award is not a contempt sanction, but is instead a "non-contempt money judgment[ ] that this court has jurisdiction to address on direct appeal." In re C.C.E. , 2021 WL 3173913, at *2–3 (holding that neither arrearage judgment nor attorney's fee award "can be treated as punishments arising out of [a] contempt finding" in a child support enforcement action). Because the attorney's fee award can be attacked on direct appeal, it is not the proper subject of a mandamus proceeding and therefore cannot justify Briones's delay in seeking mandamus relief from the previously rendered contempt findings.Cf. id. Briones does not identify any other terms of the contempt rulings that changed between the September 19, 2019 oral rendition/the October 21, 2020 written orders and the February 3, 2021 Enforcement Order. Accordingly, we reject his assertion that only the February 3, 2021 Enforcement Order is relevant to our analysis of his diligence.
In the interest of justice, we will address Briones's challenge to the award of attorney's fees in our discussion of his direct appeal.
Briones also argues his delay was justified because he could not file his petition for writ of mandamus until the appellate record in the direct appeal of the October 21, 2020 written orders was complete. Again, we disagree. Nothing precluded Briones from filing his mandamus petition and supplementing the mandamus record as, for instance, transcripts from hearings were prepared. TEX. R. APP. P. 52.7(b) ; In re Lynd Co. , 195 S.W.3d 682, 684 n.1 (Tex. 2006).
Finally, Briones argues that even an unjustified delay cannot bar review here because the contempt rulings are void. "A relator bears the burden to show the contempt order is void and not merely voidable." In re Parr , 199 S.W.3d 457, 460 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). "[A] judgment is void only when it is apparent that the court rendering the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court." Comm'n for Lawyer Discipline v. Schaefer , 364 S.W.3d 831, 836 (Tex. 2012) (per curiam) (internal quotation marks omitted); In re Roberts , No. 04-13-00782-CV, 2013 WL 6210244, at *1 (Tex. App.—San Antonio Nov. 27, 2013, orig. proceeding) (mem. op.). Briones has not cited any authority showing the trial court lacked jurisdiction to act; instead, he argues the contempt rulings violate various procedural, statutory, and constitutional requirements. However, "such violations generally only result in a ‘voidable’ or erroneous judgment." Schaefer , 364 S.W.3d at 836. Because Briones has not shown that the contempt rulings are void, we decline to overlook his delay in seeking mandamus relief.
We therefore deny the petition for writ of mandamus as to Briones's first four issues.
Denial of Reconsideration (Mandamus Issue 5)
In his fifth issue, Briones appears to argue that Judge Torres is the proper respondent in this proceeding and that she abused her discretion by refusing to review the contempt rulings issued by Judge Pozza. As support for this assertion, Briones cites authority holding that "a writ of mandamus will not lie against a successor judge in the absence of a refusal by [the successor judge] to grant the relief Relator seeks." See, e.g.,State v. Olsen , 163 Tex. 449, 360 S.W.2d 402, 403 (1962) ; In re Alsenz , 152 S.W.3d 617, 623 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding). However, he cites no authority holding that a successor judge commits an independent abuse of discretion by refusing to review her predecessor's rulings. Additionally, while Judge Torres refused to hear Briones's Motion to Set Aside, Correct, Amend, and/or Reform Judgment herself, she referred that motion to Judge Pozza, who heard and decided it. Accordingly, Briones received the reconsideration he sought. Because Briones has not shown that Judge Torres committed a clear abuse of discretion, he has not shown he is entitled to mandamus relief on this issue. SeeWalker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992).
Conclusion
We deny Briones's petition for writ of mandamus.
Direct Appeal
In his direct appeal, Briones raises four issues challenging the Modification Order and eight issues challenging the Enforcement Order.
Standard of Review
" ‘Most of the appealable issues in a family law case are evaluated against an abuse of discretion standard, be it the issue of property division incident to divorce or partition, conservatorship, visitation, or child support.’ " Smith v. Hickman , No. 04-19-00182-CV, 2020 WL 1442663, at *1 (Tex. App.—San Antonio Mar. 25, 2020, no pet.) (mem. op.) (quoting Sandone v. Miller-Sandone , 116 S.W.3d 204, 205 (Tex. App.—El Paso 2003, no pet.) ). A trial court abuses its discretion if its decision is arbitrary, unreasonable, or made without reference to guiding rules or principles. See, e.g.,In re R.E.S. , 482 S.W.3d 584, 586 (Tex. App.—San Antonio 2015, no pet.). A trial court does not abuse its discretion if its decision is supported by some substantive and probative evidence. See, e.g.,In re C.A.M.M. , 243 S.W.3d 211, 214 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Modification Order
Issue 1—Clerical Variance
In his first challenge to the Modification Order, Briones contends there is a clerical variance between the order and three agreements the parties announced in open court. See TEX. R. CIV. P. 11. If parties to a dispute reach an enforceable settlement agreement, a trial court lacks authority to render a judgment that does not strictly comply with that agreement. See, e.g.,Chisholm v. Chisholm , 209 S.W.3d 96, 98 (Tex. 2006) (per curiam). However, if a party withdraws her consent prior to the rendition of judgment, the trial court may not render judgment on the agreement unless the party seeking judgment pleads and proves a breach of contract claim. SeeGamboa v. Gamboa , 383 S.W.3d 263, 269 (Tex. App.—San Antonio 2012, no pet.).
Briones contends that during the September 2019 trial, the parties reached agreements on: (1) transporting the children to extracurricular activities; (2) Briones's possession of the children on weekends during the summer; and (3) the definition of "the last day of school." He also contends that the parties announced these agreements on the record and the trial court orally rendered judgment on them. We must examine the reporter's record to determine: (1) what agreements, if any, the parties announced in open court; and (2) whether either party withdrew their consent to those agreements before the trial court rendered judgment on them. Seeid. at 269–70.
Does the Modification Order Vary from the Parties’ Agreement?
1. Transportation Issues
During the September 10, 2019 hearing, the following exchange occurred regarding transportation of the children to extracurricular activities:
[Bragg's counsel]: Judge, as far as the agreement for the extracurricular activities, we are agreed as to the current extracurricular activities that everybody must transport to the current—
[Briones's counsel]: Right.
[Bragg's counsel]:—extracurricular activities. We're not agreeing to allow either party to select additional extracurricular activities.
This exchange shows that on September 10, 2019, the parties agreed to a mutual obligation to transport the children to extracurricular activities during their respective periods of possession. TEX. R. CIV. P. 11. However, the October 21, 2020 Modification Order only recites this obligation as to Briones and does not impose a reciprocal obligation on Bragg.
2. Briones's Summer Weekend Possession
The 2016 decree provided that "[o]n weekends that do not occur during the regular school term," Briones would have possession of the children "beginning at 6:00 p.m. on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday." During the September 9, 2019 hearing, Briones sought modification of the decree to extend his summer weekend possession until 8:00 p.m. on Sundays, while Bragg wanted to maintain the times listed in the 2016 decree. The next day, however, Hessbrook stated on the record:
The other issue is the whole 8:00 issue.... But really the main issue is in the summer he—dad wouldn't have Thursdays, but he would have Sundays normally exchanging at 6:00. So they—the parties have agreed that it would be 8:00. And those would just be those Sundays in the summer basically that it would be 8:00 on dad's first, third, and fifth. And so I think we have that agreement."
Briones's counsel responded, "That's correct, Your Honor, on our part," and Bragg's counsel did not object. This exchange shows that on September 10, 2019, the parties agreed in open court: (1) Briones was entitled to possession of the children on the first, third, and fifth weekends of each month during the summer; and (2) his possession would end at 8:00 p.m. on Sunday of those weekends. Despite this agreement, the October 21, 2020 Modification Order only grants Briones weekend possession of the children during the school year and is silent as to Briones's weekend possession during the summer. Accordingly, the Modification Order appears to modify the 2016 decree to eliminate Briones's summer weekend possession.
3. Last Day of School
Briones argues the record shows the parties agreed that if the children's last day of instruction in a school year occurred on a Thursday that was followed by a Friday teacher in-service day—i.e., if the school year ended for the students on a Thursday but did not end for the teachers until Friday—then that Friday in-service day would be considered the "last day of school." This issue was significant because the 2016 decree granted Briones possession of the children "[o]n Thursday of each week during the regular school year," but not on Thursdays that occurred during the summer. Again, Hessbrook announced an agreement on this issue into the record during the September 10, 2019 hearing:
So we agreed that at the beginning of the school year any teachers’ in-services are not counted as the beginning of the school year. However, at the end of a school year, if the Friday is an in-service, then that would be the only day that we'd still consider the school year.... So I think that's our agreement."
Bragg did not indicate any disagreement with Hessbrook's recitation of the parties’ agreement.
This exchange shows that on September 10, 2019, the parties agreed in open court that they considered a Friday in-service day at the end of the school year to be "the last day of school." However, the October 21, 2020 Modification Order defines "the last day of school" as "the last day that the child actually attends school and does not include any in-service days that may follow."
4. Conclusion
We conclude the Modification Order varies from the parties’ agreement as to the three issues Briones identified.
Do the Variances Constitute an Abuse of Discretion?
Bragg argues the trial court was not required to sign an order consistent with the agreements announced on the record on September 10, 2019. She contends that during the year between those agreements and the signing of the written Modification Order, the parties engaged in further negotiations and "[t]he discussions between the attorneys and the agreements reached [during those subsequent negotiations] were not made of record." She argues, essentially, that one or both parties withdrew their consent to the agreements described above before the trial court rendered judgment on the modification issues. SeeGamboa , 383 S.W.3d at 269 ("Although a party may have previously consented to the agreement, a consent judgment cannot be rendered when one party does not consent at the time judgment is actually rendered.").
We conclude, however, that the record shows the trial court orally rendered judgment on the agreements described above at a time when both parties consented to those agreements. On September 11, 2019, the trial court stated, "With regard to the issues that were determined, I think yesterday we finished the hearing on the modifications, the Court approves all of the agreements that were made by the parties on the record, and renders those Orders of the Court." This statement shows the trial court intended to render a full, final, and complete judgment on the modification issues—including the three issues described above—at the conclusion of the September 2019 trial on the merits. SeeS&A Restaurant Corp. v. Leal , 892 S.W.2d 855, 858 (Tex. 1995) (per curiam) ("The words used by the trial court must clearly indicate the intent to render judgment at the time the words are expressed."); see alsoGamboa , 383 S.W.3d at 270. Because both parties consented to the agreements at that time, the trial court had a ministerial duty to sign an order consistent with its oral rendition of judgment. SeeAraujo v. Araujo , 493 S.W.3d 232, 236 (Tex. App.—San Antonio 2016, no pet.).
We therefore hold the trial court abused its discretion by signing a Modification Order that varies from both the parties’ agreements and the trial court's September 11, 2019 oral rendition of judgment.
Because the record shows the trial court orally rendered judgment consistent with the parties’ agreements but the written Modification Order does not accurately reflect that rendition, we agree with Briones that the variations he identifies are clerical and not judicial. SeeIn re Daredia , 317 S.W.3d 247, 249 (Tex. 2010) (per curiam) (orig. proceeding) ("[O]nly errors made in entering a judgment are clerical; an error in rendition is judicial."). Because the variations are clerical, we may modify the order to correct them. See TEX. R. APP. P. 43.2(b) ; In re A.M. , No. 04-16-00335-CV, 2017 WL 1337648, at *5 (Tex. App.—San Antonio Apr. 12, 2017, no pet.) (mem. op.). We therefore modify the October 21, 2020 Modification Order to comport with the trial court's September 11, 2019 oral rendition of judgment, as specified in the judgment attached to this opinion.
Issue 2—Amicus Fees
In his second challenge to the Modification Order, Briones argues the trial court abused its discretion by ordering the parties to split Hessbrook's amicus fees and by assessing those fees as additional child support.
After the court orally ruled that "the amicus fees are to be paid 50/50," Briones did not object, either contemporaneously or during any of the subsequent hearings in this case, that those fees could not properly be assessed as additional child support. SeeIn re D.Z. , 583 S.W.3d 284, 297 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Nor did he raise that issue in his Motion to Set Aside, Correct, Amend, and/or Reform Judgment. Because Briones did not raise that specific issue below, he has not preserved it for our review. Id. ; see also TEX. R. APP. P. 33.1.
In contrast, the trial court was aware of Briones's testimony that he did not request the appointment of an amicus and that Hessbrook spent more time with Bragg and the children than she did with Briones. Because the record supports a conclusion that the trial court was aware of Briones's complaint that Hessbrook's fees should not be assessed against him, that issue is preserved for our review. See TEX. R. APP. P. 33.1(a)(1)(A). Nevertheless, the record does not support a conclusion that the trial court's order was an abuse of discretion. SeeIn re R.E.S. , 482 S.W.3d at 586. While Hessbrook testified she spent 70% of her time with Bragg and the children and 30% of her time with Briones, she also testified that her invoices—i.e., the dollar amount she sought to charge the parties—showed a 50/50 split because they did not represent all the time she had spent on the case. Additionally, Hessbrook helped the parties reach a compromise on the amount of past-due child support Briones owed, thus avoiding the need for the jury trial the parties had requested on that issue. Finally, an amicus attorney is appointed to assist the court itself, not one parent or the other, and her sole duty is to help the court protect the children's best interest. TEX. FAM. CODE ANN. § 107.001(1) ; Zeifman v. Nowlin , 322 S.W.3d 804, 808–09 (Tex. App.—Austin 2010, no pet.). Under these circumstances, the trial court did not act arbitrarily or unreasonably by ordering Briones to pay half of Hessbrook's fees. SeeIn re R.E.S. , 482 S.W.3d at 586.
We overrule Briones's second challenge to the Modification Order.
Issue 3—Child Support
In his third challenge to the Modification Order, Briones argues the trial court abused its discretion in its determination of his monthly net resources and by denying his request to modify child support. A trial court has broad discretion in increasing or decreasing child support payments, and we will not disturb a child support order absent a showing of a clear abuse of discretion. SeeIliff v. Iliff , 339 S.W.3d 74, 78 (Tex. 2011) ; In re H.E.W.M. , No. 04-19-00202-CV, 2020 WL 1866466, at *2 (Tex. App.—San Antonio Apr. 15, 2020, pet. denied) (mem. op.). "Under this standard, we defer to the trial court's factual determinations if they are supported by some probative and substantive evidence." In re H.E.W.M. , 2020 WL 1866466, at *2.
Briones first argues there is no evidence to support the trial court's finding that his net resources for purposes of child support are at least $9,200 per month. A child support obligor's net resources include "all wage and salary income," "interest, dividends, and royalty income," "self-employment income," and "all other income actually being received[.]" TEX. FAM. CODE ANN. § 154.062(b). "Income from self-employment, whether positive or negative, includes benefits allocated to an individual from a business or undertaking ... less ordinary and necessary expenses required to produce that income." TEX. FAM. CODE ANN. § 154.065(a) ; cf. also TEX. FAM. CODE ANN. § 154.123(b)(10) (in determining whether to apply statutory child support guidelines, trial court may consider "whether the obligor ... has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity"). In calculating net resources, the court must deduct "expenses for the cost of health insurance, dental insurance, or cash medical support for the obligor's child ordered by the court[.]" TEX. FAM. CODE ANN. § 154.062(d).
Briones testified that at the time of trial, he was earning monthly gross wages of $9,148.38. He also testified that his wages averaged $6,712 per month between October of 2016 and July of 2019. Because Bragg did not present controverting evidence on Briones's income, Briones contends the trial court "ignored the only evidence of income introduced at the trial." However, "the trial court is not required to accept the obligor's evidence of income and net resources as true." In re N.T. , 335 S.W.3d 660, 666 (Tex. App.—El Paso 2011, no pet.). The evidence shows Briones is a civil engineer who owns his own company, of which he is the sole shareholder. Briones testified that because his company "is filed as an S Corp," its expenses and profits "all funnel to [him] eventually." See TEX. FAM. CODE § 154.065(a). Briones testified his company does not "make any money," but he also testified that he "make[s] profits[.]" Although Briones testified that his tax returns would not show any income other than his wages for the three years prior to trial, he did not present his tax returns to corroborate that statement. See TEX. FAM. CODE ANN. § 154.063(2) (requiring child support obligor to "produce copies of income tax returns for the past two years"). He testified this is because he did not file corporate or personal tax returns for 2017 and 2018.
Bragg filed her first motion to enforce Briones's child support obligations on February 8, 2017.
But even without Briones's tax returns, the trial court heard evidence of "income" other than Briones's wages. See id. § 154.065(a). Briones testified that his company pays a $1,400 monthly lease for his primary vehicle and that it owns several other vehicles he uses. The company also pays an unspecified amount for Briones's cell phone service. Briones "write[s] a company check ... every month" for $750 toward a judgment that Frost Bank obtained against him and his parents. His company also pays, inter alia, for San Antonio Spurs tickets that Briones estimated would cost "probably 8,000 over nine months"; $1,500 per year for season tickets to a professional soccer team; and $250 per year for season tickets to UTSA football. While Briones testified that he gives some of those tickets to clients, he stated he also uses them himself. The trial court could have properly considered these "benefits allocated to" Briones in its determination of his income and, by extension, its determination of his net resources. See id. ; see also id. § 154.062(b)(5).
The monthly gross Briones claimed to be earning at the time of trial, plus the monetary value he assigned to the company-paid benefits described above, supports a conclusion that at the time of trial, Briones had gross monthly income of at least $12,333.21 per month. TEX. FAM. CODE §§ 154.062(b), 154.065(a). Under the 2020 tax charts promulgated by the Texas Attorney General, that amount supports a net monthly income of $9,200—precisely the amount the trial court found here. See TEX. FAM. CODE ANN. § 154.061(b) ; Office of the Attorney General 2020 Tax Charts, https://csapps.oag.texas.gov/system/files/2019-12/2020_taxcharts.pdf (last visited February 18, 2022).
$9,148.38 + $1,400 (vehicle lease) + $750 (judgment lien payment) + $889 (Spurs tickets divided into nine payments) + $125 (soccer tickets divided into twelve payments) + $20.83 (UTSA tickets divided into twelve payments) = $12,333.21 per month.
Briones testified he pays $491.10 each month for the children's medical expenses, and the Family Code requires this amount to be deducted from his net resources. TEX. FAM. CODE § 154.062(d)(5). When that amount is subtracted from the monthly wages and company-supplied benefits to which Briones testified, the resulting sum appears to drop Briones's available net resources below $9,200. However, Briones testified that his monthly personal expenses, including medical expenses, are $9,113.49—only $86.51 lower than the trial court's determination of his monthly net resources. While Briones testified that his monthly expenses are higher than his monthly income, the evidence shows his expenses included a $250 monthly payment toward a country club membership. Additionally, a list of debts he presented to the trial court included a $55,000 donation to the children's private school, and Briones testified that promised donation should actually be listed as $100,000. He also paid $4,500 for a sign at the children's school. The trial court could have reasonably concluded that Briones's claim of inability to pay his bills was inconsistent with his decisions to make large donations and maintain a country club membership. See, e.g.,In re Guardianship of C.E.M.-K. , 341 S.W.3d 68, 81 (Tex. App.—San Antonio 2011, pet. denied) ("Where there is conflicting evidence, the factfinder's decision on such matters is generally regarded as conclusive."); In re N.T. , 335 S.W.3d at 666. The trial court also could have reasonably determined that this evidence of voluntary expenses supports a finding that Briones's net monthly resources are at least $9,200, even after accounting for his monthly $491.10 in medical support.
This evidence, when viewed in the light most favorable to the trial court's judgment, supports a finding that at the time of trial, Briones had monthly net resources of at least $9,200. See TEX. FAM. CODE §§ 154.062(b), 154.065(a) ; Wiedenfeld v. Markgraf , 534 S.W.3d 14, 19 (Tex. App.—San Antonio 2017, no pet.). Because some probative evidence supports the trial court's finding of Briones's monthly net resources, that finding was not an abuse of discretion.SeePirzada v. Rice , No. 02-14-00145-CV, 2015 WL 1743461, at *3–4 (Tex. App.—Fort Worth Apr. 16, 2015, no pet.) (mem. op.).
Briones notes that in a previous child support proceeding involving a third child not at issue here, a different trial court determined his monthly net resources were $6,250. Briones has not cited any authority holding that the trial court in this proceeding was bound by that determination.
Briones next argues that the trial court erred by refusing to modify his child support payment because he presented evidence of a material and substantial change that justified a reduction. It is true that the trial court orally denied Briones's motion to modify and stated, "Child support is to be calculated based on the maximum." However, the 2016 decree required Briones to pay child support equal to 25% of the first $8,550 of his monthly net resources, resulting in a child support obligation of $2,137.50 per month. In contrast, the Modification Order requires Briones to pay child support equal to 22.5% of the first $9,200 of his monthly net resources, resulting in a child support obligation of $2,070 per month. Accordingly, the record does not support Briones's assertions that the trial court refused to modify his child support obligation and that the Modification Order subjects him to "the maximum guideline amount allowed by law." See TEX. FAM. CODE ANN. § 154.125 (guideline maximum for two children is 25% of obligor's monthly net resources).
We overrule Briones's third challenge to the Modification Order.
Issue 4—Contempt Findings
In his fourth challenge to the Modification Order, Briones argues that if this court grants his mandamus petition, it should modify the Modification Order to delete the contempt findings contained in that order. Because we have denied Briones's petition for writ of mandamus, we overrule this issue.
Enforcement Order
Issue 1—Clarification
In his first challenge to the Enforcement Order, Briones argues the trial court abused its discretion by clarifying provisions of the 2016 decree that required him to pay for the children's piano and swim lessons and school tuition. A trial court may clarify an order previously rendered in a family law proceeding "if the court finds, on the motion of a party or on the court's own motion, that the order is not specific enough to be enforced by contempt." TEX. FAM. CODE ANN. § 157.421(a). "The court shall clarify the order by rendering an order that is specific enough to be enforced by contempt." Id. § 157.421(b). However, "[a] court may not change the substantive provisions of an order to be clarified[.]" TEX. FAM. CODE ANN. § 157.423.
Briones first argues the trial court lacked authority to clarify these provisions because the 2016 decree was "not ambiguous" and was "very clear." But in the trial court, Briones argued these provisions were "not specific enough to hold [him] in contempt," and the trial court agreed. "A party cannot ask something of the trial court and then complain the trial court erred in granting the relief sought." Saeco Elec. & Util., Ltd. v. Gonzales , 392 S.W.3d 803, 806 (Tex. App.—San Antonio 2012, pet. granted, judgm't vacated w.r.m.). Additionally, when a party's complaint on appeal does not comport with its argument in the trial court, the issue is not preserved for our review. SeeWatts v. Watts , 396 S.W.3d 19, 23 (Tex. App.—San Antonio 2012, no pet.). We therefore decline to consider Briones's contention that the trial court lacked authority to clarify the 2016 decree.
Briones next argues the trial court's clarification of his piano and swim lesson obligations impermissibly changed the 2016 decree by adding decretal language. He notes that the 2016 decree arose out of a mediated settlement agreement between the parties and argues that "[t]he language the parties chose to use excluded decretal language." We disagree. Briones's piano and swim lesson obligations appear in the "Possession Order" section of the 2016 decree. The first sentence of that section states, "IT IS ORDERED that each conservator shall comply with all terms and conditions of this Possession Order." This is "decretal language making clear that a party is under order." SeeIn re Coppock , 277 S.W.3d 417, 420 (Tex. 2009). The trial court did not abuse its discretion by repeating that decretal language in the Enforcement Order.
Briones also argues the clarification of his obligation to pay the children's tuition was an abuse of discretion because it "add[ed] multiple additional terms not part of the original order." The 2016 decree stated:
IT IS ORDERED that [Briones] shall pay as additional child support 50% of the children's private school tuition and fees associated with tuition as referenced on tuition statements for the school years 2015-2016, and 2016-2017, when due, and thereafter [Briones] shall pay as additional child support 100% of the children's private school tuition and fees associated with tuition as referenced on tuition statements when due until such time as each child reaches high school.
The "additional terms" Briones challenges in the Enforcement Order are: (1) the identification of the children's private school; (2) a specification that Briones must pay his portion of the tuition bills directly to the school within thirty days after the bills are posted to Our Family Wizard; and (3) a requirement that Briones post proof of payment to Our Family Wizard within seventy-two hours of making the payment.
We see nothing in the first two terms that substantively changes the 2016 decree. See TEX. FAM. CODE § 157.423. "A proper clarification order is consistent with the prior judgment and ‘merely enforces by appropriate order the controlling settlement agreement.’ " Wright v. Eckhardt , 32 S.W.3d 891, 894 (Tex. App.—Corpus Christi 2000, no pet.) (quoting Young v. Young , 810 S.W.2d 850, 851 (Tex. App.—Dallas 1991, writ denied) ). Here, the challenged clarifications did not increase Briones's share of the children's tuition or change that share's classification as additional child support. SeeZeolla v. Zeolla , 15 S.W.3d 239, 242 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (affirming clarification of divorce decree). Moreover, because the 2016 decree did not specify when or to whom Briones was to make the tuition payments, the trial court could have reasonably determined that information was necessary to "set forth the terms of compliance in clear, specific and unambiguous terms so that [Briones] will readily know exactly what duties and obligations are imposed upon him." SeeEx parte Chambers , 898 S.W.2d 257, 260 (Tex. 1995) ; see also TEX. FAM. CODE § 157.421(b). Accordingly, the trial court did not abuse its discretion by clarifying the 2016 decree to order Briones to pay his portion of the tuition directly to the school within thirty days of the bill's posting to Our Family Wizard. SeeWallace v. Wallace , No. 04-17-00557-CV, 2018 WL 5808327, at *3–5 (Tex. App.—San Antonio Nov. 7, 2018, pet. denied) (mem. op.) (affirming clarification of divorce decree that "merely assisted in the implementation of the decree and clarified the terms in question").
Briones also argues the evidence is legally and factually insufficient to support any clarifications because Bragg "never set an additional hearing to present evidence to support the" clarifications. As noted above, the only clarification of the swimming and piano provisions that Briones complains about on appeal is decretal language carried over from the 2016 decree, and the record shows the trial court took judicial notice of that decree. Moreover, during the September 2019 trial on the merits, the trial court heard evidence from representatives of the children's school about which years the children attended the school, the amount of the existing unpaid tuition balances, and Briones's failure to pay those amounts. Because this is some probative evidence to support the trial court's clarifications about when and to whom Briones was to pay the outstanding tuition balances, we may not disturb the trial court's ruling as to those issues. SeeIn re C.A.M.M. , 243 S.W.3d at 214.
We reach a different conclusion as to the Modification Order's requirement that Briones post proof of payment to Our Family Wizard. While the 2016 decree required Briones to pay the children's tuition, we do not see any language that can be construed as requiring him to provide written proof that he had done so. Accordingly, that provision of the Modification Order represents a substantive change to the 2016 decree. TEX. FAM. CODE § 157.243(a). Because "[a] substantive change made by a clarification order is not enforceable," we agree with Briones that the trial court abused its discretion by including that provision in the Enforcement Order. See id. § 157.423(b) ; Lowery v. Lowery , No. 01-16-00147-CV, 2017 WL 6520428, at *3 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (mem. op.) (trial court abuses its discretion "by making a choice outside the range of choices permitted by law").
We overrule Briones's first issue as to the portions of the Enforcement Order that clarify: (1) Briones's obligation to pay for piano and swim lessons; and (2) when and to whom Briones is to make tuition payments. We sustain this issue as to the portion of the Enforcement Order requiring Briones to post proof of tuition payments to Our Family Wizard, and we modify the order to delete that provision.
Issue 2—Reopening the Evidence
In his second challenge to the Enforcement Order, Briones argues the trial court abused its discretion by permitting Bragg to reopen the evidence on her attorney's fees. "When it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury." TEX. R. CIV. P. 270. Whether to reopen the evidence is within the sound discretion of the trial court, and the court "should exercise its discretion liberally in the interest of permitting both sides to fully develop the case in the interest of justice." In re Hawk , 5 S.W.3d 874, 876–77 (Tex. App.—Houston [14th Dist. 1999, no pet.) (internal quotation marks omitted).
Briones identifies factors a trial court should consider in deciding whether to reopen the evidence, and he argues Bragg did not satisfy those factors. SeeIn re B.J.M. , No. 04-14-00300-CV, 2015 WL 1244804, at *2 (Tex. App.—San Antonio Mar. 18, 2015, no pet.) (mem. op.). However, he cites no authority holding that a trial court abuses its discretion by reopening the evidence in the absence of those factors.
Moreover, in an enforcement action where "the court finds that the respondent has failed to make child support payments, the court shall order the respondent to pay the movant's reasonable attorney's fees and all court costs in addition to the arrearages." TEX. FAM. CODE ANN. § 157.167(a). Here, Briones's own Exhibit 10 shows multiple occasions when Briones's child support payments were late, the amounts he paid were lower than required by the 2016 decree, or both. Because Briones's Exhibit 10 supports a conclusion that Briones failed to make child support payments, it also supports a conclusion that the trial court was required to order him to pay Bragg's attorney's fees for the child support enforcement action. See id. In light of this statutory requirement, the trial court did not act arbitrarily or unreasonably by concluding that allowing Bragg to present additional evidence on the amount of those fees "clearly appear[ed] to be necessary to the due administration of justice." TEX. R. CIV. P. 270.
We overrule Briones's second challenge to the Enforcement Order.
Issue 3—Briones's Attorney's Fees
In his third challenge to the Enforcement Order, Briones argues the trial court abused its discretion by refusing to award him attorney's fees in connection with Bragg's unsuccessful Petition for Enforcement of Spousal Maintenance. An award of attorney's fees in most family law matters "is within the sound discretion of the trial court." In re R.E.S. , 482 S.W.3d at 586 ; see also TEX. FAM. CODE ANN. § 106.002(a).
Because Bragg conceded below that "she could not pursue the enforcement of spousal maintenance," Briones contends he was the prevailing party on that issue and the trial court erred by denying his request for attorney's fees. However, "a prevailing-party determination is not a conclusive or decisive factor" in awarding attorney's fees under the relevant provision of the Texas Family Code. In re R.E.S. , 482 S.W.3d at 587. Because "the trial court is in the best position to evaluate circumstances which may not be readily apparent from a cold record," we overrule Briones's assertion that the trial court abused its discretion by failing to award him attorney's fees. See id.
We overrule Briones's third challenge to the Enforcement Order.
Issue 4—Alimony Judgment
In his fourth issue, Briones raises several complaints about the portion of the Enforcement Order that directs him to pay Bragg $78,000 in unpaid alimony. He first argues that Bragg's live pleadings did not request a money judgment for unpaid alimony. See TEX. R. CIV. P. 301. We disagree. Bragg's live pleading on this issue—her December 21, 2018 Second Amended Petition for Enforcement of Property Division by Contempt—explicitly requested an order directing Briones to pay money judgments for the violations alleged in that petition. The petition alleged Briones had failed to pay $78,000 in alimony, and Paragraph 6(j) of Bragg's petition requested a judgment in that amount.
Next, Briones argues Bragg was not entitled to this judgment because she did not file a breach of contract action. The Texas Supreme Court has held, "Without decretal language making clear that a party is under order , agreements incorporated into divorce decrees are enforced only as contractual obligations." In re Coppock , 277 S.W.3d at 420 (emphasis added). However, the 2016 decree explicitly provides, "IT IS ORDERED AND DECREED that: ... [Briones] shall pay to [Bragg] two thousand dollars ($2,000.00) per month as taxable alimony." Because the decree includes decretal language, the trial court did not abuse its discretion by rejecting Briones's claim that Bragg was required to file a breach of contract action.See id.
Even if we assume Bragg was required to pursue a breach of contract claim, her live Petition for Enforcement of Property Division alleged: (1) the parties agreed that Briones would pay Bragg $2,000 per month in alimony; (2) the 2016 decree required Briones to make the alimony payments in question; and (3) Briones failed to make at least thirty-seven of those payments. Because these allegations assert "(1) the existence of a contractual relationship between the parties; (2) the substance of the contract that supports the pleader's right to recover; and (3) a breach of the contract by the defendant," they are sufficient to state a claim for breach of contract. SeeWoolam v. Tussing , 54 S.W.3d 442, 447–48 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.). While Briones attempts to distinguish Woolam based on his assertion that Bragg did not request a money judgment on her alimony claim, we have already rejected that argument.
Briones also argues the trial court abused its discretion by enforcing the 2016 decree's alimony provision based on Bragg's Petition for Enforcement of Property Division because the court had already concluded Bragg could not recover on her separate Petition for Enforcement of Spousal Maintenance. However, Briones has not argued that he was confused or misled by the fact that Bragg's alimony claim appeared in both petitions. Nor has he argued he did not have an adequate opportunity to defend himself against that claim. SeeWoolam , 54 S.W.3d at 447–48. Briones also has not argued the evidence is legally or factually insufficient to support a finding that the 2016 decree required him to pay alimony, nor has he disputed that the evidence shows he failed to comply with that order on the dates alleged in Bragg's petition. Accordingly, Briones has not shown that the entry of a money judgment on Bragg's alimony claim probably caused the rendition of an improper judgment or probably prevented Briones from presenting his case to this court. TEX. R. APP. P. 44.1(a).
We overrule Briones's fourth challenge to the Enforcement Order.
Issue 5—Bragg's Court Costs and Attorney's Fees
In his fifth challenge to the Enforcement Order, Briones argues the evidence is legally and factually insufficient to support an award of court costs to Bragg. Briones's briefing in his direct appeal is limited to the award of court costs and does not directly challenge the award of attorney's fees to Bragg. In his petition for writ of mandamus, however, Briones argues the trial court abused its discretion by awarding Bragg attorney's fees because "the parties did not submit [the arrearage issue] to the trial court for a determination of the merits and the trial court made no findings." Because we have concluded that challenge must be raised in a direct appeal, we will address it here. Cf.In re C.C.E. , 2021 WL 3173913, at *2–3.
In family law matters, legal and factual sufficiency is not an independent ground of error, but is instead a factor in determining whether the trial court acted within its discretion. See, e.g.,In re Guardianship of C.E.M.-K. , 341 S.W.3d at 80. In reviewing the sufficiency of the evidence under an abuse of discretion standard, we consider: "(1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion." Id. If a trial court finds an obligor "has failed to make child support payments," the Texas Family Code requires the court to order the obligor to pay "reasonable attorney's fees and all court costs" incurred by the obligee. TEX. FAM. CODE § 157.167(a). Briones argues the trial court did not make such a finding here because the parties reached an agreement on the amount of past-due child support.
We disagree. Because the trial court did not file findings of fact and conclusions of law, we must presume the trial court made all findings necessary to support the judgment. SeeWorford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990) ; Roberts v. Roberts , 402 S.W.3d 833, 838 (Tex. App.—San Antonio 2013, no pet.) (en banc). "If the evidence supports the trial court's implied findings, we must uphold the judgment on any theory of law applicable to the case." Roberts , 402 S.W.3d at 838 (internal quotation marks omitted). As noted above, Briones's Exhibit 10 shows multiple occasions where Briones's child support payments were late, less than required, or both. Based on this evidence, we must presume that the trial court found Briones failed to make child support payments and, as a result, concluded that Bragg was therefore entitled to an award of both attorney's fees and court costs. TEX. FAM. CODE § 157.167(a). The court did not abuse its discretion by doing so. See id.
Briones also contends Bragg did not present legally and factually sufficient evidence to support an award of costs. He first complains that Bragg improperly failed to segregate costs related to her child support enforcement claims from costs incurred on her other, non-child-support claims for relief. However, Briones did not raise this argument below and has therefore waived it. TEX. R. APP. P. 33.1 ; cf.Eastin v. Dial , 288 S.W.3d 491, 501–02 (Tex. App.—San Antonio 2009, pet. denied).
While Briones raised segregation arguments below, his complaints on that point focused solely on Bragg's attorney's fees. He did not object that both costs and attorney's fees must be segregated, even when the trial court explicitly drew a distinction between costs and attorney's fees:
THE COURT: Okay. Very good. And then the attorney's fees on the enforcement were not segregated. We've never had evidence of segregation. They are denied. The cost of $6166.30, must be included.
Briones next argues Bragg "never provided any evidence to support the total costs incurred[.]" Bragg's attorney testified that Bragg incurred total costs of $6,166.30, and the trial court awarded her costs in that amount. At trial, Briones did not object to the reasonableness or necessity of this amount or present any controverting evidence. Cf.Cale's Clean Scene Carwash, Inc. v. Hubbard , 76 S.W.3d 784, 787–88 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (noting opposing party's failure "to elicit any testimony to controvert or impeach" attorney's testimony on reasonable fees). The authority Briones cites on appeal does not hold that an attorney's testimony is legally or factually insufficient to support an award of court costs. SeeIn re A.L.S. , 338 S.W.3d 59, 69 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (affirming denial of attorney's fees where litigant "presented no evidence whatsoever of any reasonable attorney's fees incurred"); Dilston House Condo. Ass'n v. White , 230 S.W.3d 714, 716–18 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (affirming denial of attorney's fees where litigant relied on evidence of another party's fees); Cale's Clean Scene Carwash , 76 S.W.3d at 787–88 (reversing jury's finding of $0 in reasonable attorney's fees because attorney's supporting testimony "was clear, direct, and positive and could have readily been contradicted if the amount was not reasonable").
Finally, neither Briones's mandamus petition nor his briefing in the direct appeal challenges the sufficiency of the evidence to support the amount of attorney's fees the trial court awarded to Bragg, and we have already rejected his assertion that the trial court abused its discretion by permitting Bragg to present that evidence. Accordingly, we must affirm the award of attorney's fees. SeeRoberts , 402 S.W.3d at 838.
We overrule Briones's fifth challenge to the Enforcement Order's imposition of court costs. We also overrule his challenge to the award of attorney's fees.
Issue 6—Judgment Not Supported by Pleadings
In his sixth challenge to the Enforcement Order, Briones argues the trial court erred by granting Bragg a money judgment for: unpaid alimony; the W-12, W-13, and W-14 payments and associated contempt fine; and the amounts the trial court found Briones owed toward the children's 529 accounts. Briones contends Bragg's pleadings did not request a money judgment for these amounts. See TEX. R. CIV. P. 301. As noted above, we disagree—paragraphs 6(a)–(j) of Bragg's December 21, 2018 Second Amended Petition for Enforcement of Property Division by Contempt explicitly requested an order directing Briones to pay Bragg the amounts Briones challenges here.
We therefore overrule Briones's sixth challenge to the Enforcement Order.
Issue 7—Payment Plan
In his seventh challenge to the Enforcement Order, Briones contends the trial court abused its discretion by ordering him to pay $800 per month toward the aggregate judgment. He first argues that his wages are exempt from garnishment for the payment of debt. However, "[a] garnishment proceeding involves at least three parties: (1) the plaintiff (also known as the garnishor); (2) the defendant or debtor; and (3) the garnishee.... The garnishee is a third party who owes a debt to or holds property of the debtor." Strobach v. WesTex Cmty. Credit Union , 621 S.W.3d 856, 868 (Tex. App.—El Paso 2021, pet. denied). Here, the Enforcement Order requires Briones himself to pay money to Bragg. It does not order a third party to pay Bragg money that would otherwise belong to Briones. Accordingly, it cannot be construed as a garnishment order. See id.
Briones next argues that Bragg's pleadings do not request the establishment of a payment plan. However, Bragg prayed "for all further relief authorized by law." Because the proceedings below resulted in a money judgment arising out of an enforcement action, the applicable section of the Family Code provides that the trial court "shall render an order requiring that [Briones] make periodic payments on the judgment[.]" TEX. FAM. CODE ANN. § 157.264(b) ; see also TEX. GOV'T CODE ANN. § 311.016(2) (" ‘Shall’ imposes a duty."). The trial court did not abuse its discretion by concluding Bragg's pleadings were sufficient to support an order required by the plain language of the Family Code.
Finally, Briones argues the $800 monthly payment is not supported by legally or factually sufficient evidence. "A trial court should set the term for payment of the cash judgment for as short a period as possible without imposing a serious hardship on the party responsible to pay the judgment." Hanson v. Hanson , 672 S.W.2d 274, 279 (Tex. App.—Houston [14th Dist.] 1984, writ dism'd). An $800 monthly payment is equal to $9,600 per year. At that rate, Briones will not pay the total judgment of $351,343.30 for more than thirty-six years. Briones has not presented any argument or authority to support a conclusion that this payment term is unreasonable. See id.
This calculation includes only the aggregate judgment itself and does not include post-judgment interest.
While Briones does not explicitly argue on appeal that an $800 monthly payment will impose a serious hardship on him, he notes that the trial court heard evidence of "a significant loss in [his] income since 2016 up and through 2019." However, Briones testified this loss of income resulted from his own voluntary decision to downsize his business. Additionally, as noted above, while Briones testified his monthly expenses are higher than his monthly income and that he "can't borrow money," the evidence shows that he receives significant monetary benefits from his company in addition to his wages. We further note that the evidence shows Briones owns a house in San Antonio worth $700,000, a condominium in Houston worth $220,000, and multiple expensive watches, including one worth "like $35,000" and another worth "at least $25,000." SeeFinch v. Finch , 825 S.W.2d 218, 224 (Tex. App.—Houston [1st Dist.] 1992, no writ) (concluding "trial court could have determined that appellant can borrow the money to pay the judgment by using his business assets as collateral"); cf.Popek v. Popek , No. 14-10-00201-CV, 2011 WL 2566185, at *13–14 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (mem. op.) (order requiring payment of $28,250 in four days imposed serious hardship on obligor who earned twelve dollars an hour, "carrie[d] a lot of debt," and "cannot offer collateral or valuables in that amount"). Based on this evidence, the trial court did not abuse its discretion by ordering Briones to pay $800 per month toward the aggregate judgment. SeeHanson , 672 S.W.2d at 279.
Briones testified that after the divorce, he voluntarily cut back from "75 employees ... in eight states, 15 cities" to six employees so his business would be "the correct size for me to be available to my children on the time of possession." The trial court was not required to credit this explanation for Briones's decision to downsize his business, especially where, as here, the court found Briones engaged in "egregious" violations of his payment obligations under the 2016 decree. See In reGuardianship of Tischler , 505 S.W.3d 73, 76 (Tex. App.—San Antonio 2016, no pet.) (when trial court acts as factfinder it "may believe or disbelieve the testimony of a witness, in whole or in part, and it may resolve any inconsistencies in a witness's testimony").
We overrule Briones's seventh challenge to the Enforcement Order.
Issue 8—Domestic Support Obligation
Finally, Briones argues the trial court abused its discretion by labeling the judgment awarded to Bragg as a "domestic support obligation." A domestic support obligation cannot be discharged in a bankruptcy proceeding. See 11 U.S.C. § 523(a)(5). However, "[t]he Bankruptcy Code requires the bankruptcy court ... to determine the true nature of the debt, regardless of the characterization placed on it by the parties’ agreement or the state court proceeding." In reMatter of Benich , 811 F.2d 943, 945 (5th Cir. 1987) (internal citation omitted); see alsoIn re Joseph , 16 F.3d 86, 87–88 (5th Cir. 1994). Briones cites no authority holding that a bankruptcy court would be bound by the trial court's conclusion that the judgment is not dischargeable, and applicable federal authority holds the opposite. SeeBenich , 811 F.2d at 945. Moreover, there is no indication in the record that Briones has sought or been denied the opportunity to discharge any portion of the Enforcement Order in bankruptcy. Accordingly, even if we assume arguendo that the trial court erred by characterizing the judgment as a domestic support obligation, Briones has not shown he was harmed by that error. TEX. R. APP. P. 44.1(a) ; seeBenich , 811 F.2d at 945.
We overrule Briones's eighth challenge to the Enforcement Order.
CONCLUSION
We deny Briones's petition for writ of mandamus. In Briones's direct appeal, we modify the trial court's October 21, 2020 Modification Order and February 3, 2021 Enforcement Order as described in the attached judgment and affirm those orders as modified.