Nos. 14-05-01185-CV, 14-05-01186-CV
Opinion filed February 27, 2007.
On Appeal from the 309th District Court, Harris County, Texas, Trial Court Cause Nos. 05-44163 04-18225.
Panel consists of Justices FOWLER, EDELMAN, and FROST.
In this consolidated appeal from a divorce and a petition to enforce a foreign judgment, Obinna Duruji asks us to consider whether the trial court erred in refusing to recognize Obinna's Nigerian divorce decree, which he purportedly obtained while Esther Duruji's Texas divorce action was pending, and which Obinna claims precludes relitigation of the divorce. Obinna also challenges the sufficiency of the evidence supporting the trial court's rulings, the trial court's exclusion of certain evidence concerning the property division, child support, and attorney's fees, the trial court's denial of Obinna's motion for new trial and motion for contempt and sanctions, and the trial court's failure to enter findings of fact. For the reasons explained below, we affirm in part, and reverse and remand in part.
FACTUAL AND PROCEDURAL BACKGROUND
Obinna Duruji and Esther Oby Duruji were first married in Nigeria in January of 1988. Together, the couple had four children. For reasons not material to this appeal, Obinna and Esther married again in Texas on January 10, 1997. Although it is unclear from the record, the parties apparently lived at different times in Nigeria and in Texas during the marriage. In 2001, Obinna, a licensed lawyer in Texas and Washington, D.C., accepted a political appointment in Nigeria as Commissioner for Education in Imo State. Esther left Nigeria and returned to the United States to work, while Obinna and the children remained in Nigeria. When the appointment ended, Obinna became unemployed. In April of 2004, the couple's children came to the United States to stay with Esther, who was living in Texas and working as a nurse.
Esther's petition for divorce identifies her as "Duruji Esther Oby." However, at the divorce hearing, Esther testified that her name was Esther Oby Duruji. Therefore, we refer to her as Esther Oby Duruji.
Obinna testified that he served in this capacity from October 2001 until May 2003.
On April 12, 2004, Esther filed for divorce in Harris County. One month later, on May 11, 2004, Obinna filed for divorce in Nigeria. In the Harris County action, an ad litem was appointed to file an answer for Obinna because Esther claimed she did not know his whereabouts in Nigeria. A year later, in April 2005, Obinna filed an answer which included, in addition to a general denial, a plea in abatement, special exceptions, a motion to dismiss, and the affirmative defense of res judicata based on his Nigerian divorce action. Obinna also counter-petitioned for divorce, a division of community property consisting of two vehicles, and attorney's fees.
On July 11, 2005, the day of the divorce hearing, Obinna filed an amended answer, asserting the same claims as presented in his original answer, and seeking joint managing conservatorship of the children. Obinna also claimed the child support guidelines did not apply to fix the amount of child support because he had been unemployed since May 2003, and he had just begun sharing an office with a law firm and setting up a law practice. That same day, under a separate cause number, Obinna also filed a "Petition to Enforce Foreign Judgment," seeking recognition and enforcement of his Nigerian divorce decree under the Uniform Enforcement of Foreign Judgments Act. See TEX. CIV. PRAC. REM. CODE" 35.001B35.008.
An associate judge presided at the divorce hearing.
At the divorce hearing, Esther testified that she and Obinna had four children, that she and her husband separated in March 2002, and that the children came to live with her in April of 2004. She stated that she came to the United States to make money to send home to Nigeria. Esther also testified that she worked as a registered nurse and made about $80,000 per year, and that she had filed a financial information statement that was true and correct.
Concerning Obinna's income, Esther testified that Obinna was a lawyer licensed in Texas and Washington, D.C., and that the temporary support of $1,465.20 was based on her actual knowledge of his income. Esther also testified that Obinna had taken a political appointment in Nigeria and was paid by the government, but she did not state how much he was paid. Esther testified that the only car she had was a Toyota Land Cruiser that she needed for work and to take her children to school. Although she once owned another car, a Toyota Camry, Esther testified that it caught on fire and she had it towed to a dealership, where she left it approximately two years earlier.
On cross-examination, Obinna, representing himself, questioned Esther about her claim that she sent money to Nigeria for the children, her knowledge of his whereabouts when she filed the divorce action, and the loss of the Camry. Obinna also elicited testimony from Esther that she was not aware of any income he earned either in the United States or Nigeria since 2002, and that her testimony about his income was based on what he had made before going to Nigeria. Esther also admitted she had no income tax returns showing him making $60,000 per year, but she stated the reason she did not have the returns was that Obinna took them.
Obinna, testifying on his own behalf, stated that he filed a divorce petition in Nigeria on May 11, 2004, and after six months, he was granted a divorce. Obinna further stated that he had that day filed a petition to enforce the prior divorce judgment and a copy of it was "on file." He also testified that he was appointed Commissioner for Education in Nigeria from October 2001 until May 2003, and that he made less than $2,000 per month. Obinna testified that, after his appointment expired, he did not get another appointment and he was unemployed. Obinna further stated that since 2002, he had not filed a tax return in the United States because he had not made any money and had no income. He did not submit a financial information statement. Concerning the children, Obinna testified that he took care of them, and he denied that Esther sent him any money for them.
Obinna had several documents admitted into evidence, including copies of e-mail correspondence he sent to Esther and documents reflecting that he was recently reinstated to practice law in Washington, D.C. and Texas. The trial court sustained objections to other evidence Obinna attempted to have admitted through Esther, but Obinna did not make a bill of exceptions or an offer of proof to include those documents in the record for purposes of appeal. Obinna also did not attempt to have any documentation for the alleged divorce obtained in Nigeria or proof of service of the divorce action on Esther admitted into evidence.
At one point during the hearing, Obinna asked the trial court to direct its attention to his first amended petition and claim of res judicata, but he did not ask the court take judicial notice of any documents attached to the petition.
At the close of the hearing, the trial court granted the divorce, appointed the parties joint managing conservators, awarded Esther child support of $1,500 per month, provided for health insurance for the children, and awarded each party "the property in their respective possessions." After additional testimony concerning Esther's attorney's fees, the trial court awarded Esther attorney's fees of $1,000 as child support. The Final Divorce Decree was signed August 2, 2005.
Obinna moved for a new trial, and in October 2005, the associate judge held a hearing on the motion for new trial and Obinna's petition to enforce the foreign judgment and a motion for contempt and sanctions. Obinna participated by conference call. Obinna argued that his Nigerian divorce was entitled to full faith and credit under the United States Constitution, and he also claimed that res judicata precluded re-litigation of the dissolution of the parties' marriage. In response, Esther testified that she filed her divorce petition before Obinna filed his petition in Nigeria, that she gave a copy of it to him in Houston, Texas, and that thereafter he left for Nigeria. She also testified she was never served with and never received a copy of the Nigerian divorce papers. She further testified she did not learn of the Nigerian divorce until Obinna attached a copy of the decree to his answer. Obinna denied knowing that Esther had filed for divorce, and contended the Nigerian decree reflected that she was served. He also accused Esther of giving false testimony and affidavits, and he objected to the amount of child support previously awarded.
The record does not contain a motion for contempt and/or sanctions.
Based on the associate judge's report, in November 2005, the trial court signed an order denying the motion for new trial. The trial court also denied Obinna's motion for contempt and sanctions. That same month, Obinna requested findings of fact and conclusions of law in response to the associate judge's denial of his petition to enforce the foreign judgment. No findings or conclusions were filed. Obinna filed a notice of appeal in each case, and the two cases were consolidated in this Court.
On appeal, Obinna contends the trial court erred in the following ways: (1) admitting and basing the child support order on Esther's financial information statement or her allegedly perjured testimony; (2) failing to give full faith and credit to Obinna's foreign decree or his plea of res judicata; (3) awarding the Land Cruiser to Esther without an order on the Camry; (4) ordering Obinna to pay $1,500 per month for child support; (5) ordering Obinna to pay $1,500 per month for child support without suspension of support during his period of possession; (6) failing to make findings when the child support order was outside the Family Code guidelines; (7) failing to give Obinna credit for the period he had sole custody and maintenance of the children; (8) ordering Obinna to pay a portion of Esther's attorney's fees as child support; (9) excluding admissible evidence of Obinna's student loan; (10) excluding Obinna's employment letter showing the terms and conditions of his employment as Commissioner for Education; and (11) failing to hold Esther in contempt and sanction her for claimed false affidavit and lies under oath. We address these issues below. I. Full Faith and Credit and Res Judicata
In his appellate brief, Obinna attempts to support some of his arguments with documents contained in the appendix to his brief. However, many of these documents are not in the record. We cannot consider documents attached as appendices to briefs and must consider a case based solely upon the record before the trial court. See Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 342 n. 2 (Tex.App. — Houston [14th Dist.] 2003, no pet.); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 292B93 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
Esther's appellate brief includes a request for sanctions against Obinna for filing a frivolous appeal. See TEX. R. APP. P. 45. Although we agree that Obinna's appeal is not a model of clarity, we deny Esther's request for sanctions because Obinna is entitled to a reversal and remand on part of his appeal.
We start with Obinna's Nigerian divorce decree. In his second issue, Obinna contends the trial court erred in failing to give full faith and credit to the decree, and that the trial court failed to rule on his plea of res judicata.
A. The Nigerian Divorce Decree
Obinna contends that, under the Full Faith and Credit Clause of the United States Constitution and Chapter 35 of the Texas Civil Practice and Remedies Code, his Nigerian divorce decree is entitled to full faith and credit in a Texas court. See U.S. CONST. art IV, § 1; TEX. CIV. PRAC. REM. CODE §§ 35.001B35.008 (the "Uniform Enforcement of Foreign Judgments Act"). However, states are not required to give full faith and credit to foreign country judgments. Reading Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702, 714B15 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). Once grounds for nonrecognition have been timely asserted, the foreign country judgment will not be recognized or enforced until those objections have been expressly overruled by the trial court. Id. at 715.
The Full Faith and Credit Clause of the United States Constitution states that full faith and credit shall be given in each state to the judicial proceedings of every other state. Thus, Chapter 35 applies to court decisions from other states, not other countries. See, e.g., Schacht v. Schacht, 435 S.W.2d 197, 202 (Tex.Civ.App.-Dallas 1968, no writ) (stating that full faith and credit did not apply to require that Texas court recognize Mexican divorce decree).
Although Obinna claims that the United States and Nigeria have a reciprocity agreement to honor each other's judgments, and United States judgments are accorded full faith and credit and routinely enforced in Nigeria, he cites no authority for this proposition.
Obinna contends that he has satisfied the following factors in determining whether to give a foreign judgment full faith and credit: (1) jurisdiction over the subject matter; (2) jurisdiction over the person or res; and (3) the foreign court's power to render the particular relief awarded. See Johnson v. Johnson, 37 S.W.3d 523, 527 (Tex.App.-El Paso 2001, no pet.). He further asserts that "[n]othing before the Houston trial court and nothing before this Court casts doubt or aspersion upon the Nigerian trial court's exercise of jurisdiction."
However, when Obinna filed his action in Nigeria, it is undisputed that Esther was a resident of Texas. Esther also testified in the trial court that she was never served with any pleadings in the divorce action, and she did not learn about the alleged Nigerian decree until Obinna filed it with his answer in the Texas divorce action. Although Obinna contends the Nigerian decree attached to his answer reflects that Esther received service, he did not have the document admitted into evidence at either the divorce hearing or the hearing on the motion for new trial in which the petition to enforce the foreign decree was heard. Documents attached to pleadings are not evidence unless they are introduced at trial. See Ceramic Tile Int'l, Inc. v. Balusek, 137 S.W.3d 722, 725 (Tex.App.-San Antonio 2004, no pet.); see also Nat'l Med. Fin. Servs., Inc. v. Irving Indep. Sch. Dist., 150 S.W.3d 901, 905 (Tex.App.-Dallas 2004, no pet.) (stating that, for exhibits to be considered at trial, they must be properly admitted as evidence, even if already attached to pleadings); Wilson v. Williamson, 586 S.W.2d 148, 150 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ) (holding that although party was permitted to attach exhibit to pleadings and make reference to it during trial, it was incumbent upon him to offer the exhibit in evidence for it to be considered by the court). Simply attaching a document to a pleading does not make the document admissible as evidence, dispense with proper foundational evidentiary requirements, or relieve a litigant of complying with other admissibility requirements. Balusek, 137 S.W.3d at 725.
In trial court cause no. 2005-44163, the suit on Obinna's petition to enforce the foreign judgment, the record contains no reporter's record from any hearing in which the Nigerian decree could have been put in evidence, and, in the clerk's record, Obinna's petition does not have a copy of the Nigerian decree attached to it, and no copy of it appears anywhere in the clerk's record in that suit.
Consequently, the Nigerian divorce decree was not before the trial court for consideration. The only evidence the trial court had before it was Esther's testimony that she was a Texas resident at the time she filed for divorce and that she was never served in the Nigerian action, and Obinna's contrary testimony that Esther was served in the Nigerian action and a divorce was obtained there. However, the trial court, as the fact finder, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 255 n. 5 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). It may accept or reject any part or all of a witness's testimony, believe one witness and disbelieve another, and resolve inconsistencies in any witness's testimony. Id.
Although Obinna asserts Esther knew he had filed the Nigerian action because he sent her e-mails and copies of the documents, these do not prove proper service. See Caldwell v. Barnes, 154 S.W.3d 93, 97 n. 1 (Tex. 2002) ("A party who becomes aware of the proceedings without proper service of process has no duty to participate in them."). Moreover, nothing in the exhibits admitted into evidence demonstrates proper service on Esther. Therefore, on this record, Obinna has not met one of the factors used in determining whether to give full faith and credit. We hold the trial court did not err in refusing to enforce the Nigerian decree.
In his reply brief, Obinna also claims that, because the parties were no longer married on July 11, 2004, the trial court lacked personal and subject matter jurisdiction over him and the children. However, it is undisputed that Esther filed her divorce action in Harris County before Obinna filed his divorce action in Nigeria, thus invoking the jurisdiction of the Texas court. In response, Obinna answered and counterclaimed for relief in the Harris County action; he also appeared for the hearing on the divorce in which he contested the divorce, child support, and property division on the merits. By these actions Obinna waived any issue relating to the trial court's exercise of jurisdiction. See Baker v. Monsanto Co., 111 S.W.3d 158, 161 (Tex. 2003) (the filing of an answer is deemed a general appearance submitting a party to the jurisdiction of the court for all reasons); Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998) (a party makes a general appearance if he invokes the trial court's judgment on a question other than jurisdiction, recognizes that action is properly pending before court, or seeks affirmative action from court).
B. Res Judicata
Res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). It requires proof of the following elements: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Id.
Obinna asserts, in a conclusory fashion, that "there was no valid reason to subject [him] to two different divorce proceedings on the same marriage" after it had been terminated in Nigeria. He does not specifically address the elements of res judicata or direct this Court to any evidence in the record to support his claim. However, as discussed above, Obinna failed to introduce the Nigerian decree into evidence during the divorce hearing or thereafter. Obinna contends he filed a memorandum of law on res judicata and, in the divorce hearing, he directed the trial court to his amended petition which included a plea of res judicata. However, no memorandum of law was included in the clerk's record, and in any event, as we discussed above, merely referring to attachments to a pleading is not sufficient to place the documents in evidence or to prove their admissibility or authenticity. See City of Houston v. Houston Chronicle Pub. Co., 673 S.W.2d 316, 321 (Tex.App.-Houston [1st Dist.] 1984, no writ) (holding that defense of res judicata was not available to party that failed to introduce the pleadings and judgment in earlier case). Therefore, we hold the trial court did not err in disregarding Obinna's claim of res judicata.
Although not raised by Esther, we note it is unclear whether Obinna could satisfy the requirements of res judicata because of the possibility that the Nigerian decree is not a final judgment. In his amended answer in the divorce action, Obinna claims the final judgment entitled to res judicata is the "decree absolute," but the document in the record is not a decree absolute. This document is entitled "Enrolment of Order" and reflects that the Nigerian court granted a "Decree Nisi." Moreover, in the hearing on the motion for new trial, Obinna argued that the Nigerian court "deferred the issue of child support" because the children were outside the jurisdiction of the court. However, we express no opinion on the authenticity or finality of the document.
In his statement of the issues, Obinna also complains that the trial court erred in failing to expressly rule on his res judicata claim, but the argument section of his brief contains no argument and cites no authority in support of this issue. Therefore, it is waived. See Tex. R. App. P. 38.1(h).
II. The Property Award
In his third issue, Obinna contends the trial court abused its discretion when it awarded the Land Cruiser to Esther without a corresponding order on the Camry or an allegedly outstanding community debt of $8,277.00 owing on the Camry. Obinna contends Esther lied when she testified that the car was burned and that she had made payments it.
According to Obinna, after the trial he discovered that the Camry was not burned, but that Esther took it to the dealership for body and paint work; he claims the Camry was eventually sold to satisfy a mechanic's lien. Obinna points to documents attached to his motion for new trial to support these statements. However, he does not contend that the trial court erred in denying his motion for new trial, and he provides no explanation for his failure to timely discover the alleged evidence or to present it to the trial court at the divorce hearing. See Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003) ("It is incumbent upon a party who seeks a new trial on the ground of newly discovered evidence to satisfy the court first, that the evidence has come to his knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is not cumulative; fourth, that it is so material that it would probably produce a different result if a new trial were granted."). Instead, Obinna uses these new documents, not to attack the ruling on his motion for new trial, but to attack the underlying judgment.
As noted above, Obinna chose to participate in the hearing on the motion for new trial by telephone, and he did not introduce any exhibits into evidence. As a result, the documents he relies on in this appeal were not submitted as evidence for the trial court to consider in connection with the motion for new trial. Further, during the hearing when Obinna was aware of the purportedly new evidence he offered no testimony concerning the Camry or any debt owed on it. Therefore, the evidence Obinna now relies on, the trial court did not have.
In a divorce decree, the trial court "shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." TEX. FAM. CODE § 7.001. To disturb a trial court's division of property, Obinna must show the trial court clearly abused its discretion by a division or an order that is manifestly unjust and unfair. See Evans v. Evans, 14 S.W.3d 343, 345B46 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Under this abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are merely relevant factors in assessing whether the trial court abused its discretion. Zieba v. Martin, 928 S.W.2d 782, 786 (Tex.App.-Houston [14th Dist.] 1996, no writ). The trial court does not abuse its discretion when it bases its decision on conflicting evidence or when some evidence of a probative and substantive character exists to support the division. Id. at 787.
Here, the trial court had before it Esther's testimony at the divorce hearing that the car caught on fire, was towed to a dealership, and she left it there. Obinna cross-examined her on the issue, but he did not offer any contradicting evidence of the car's disposition or of any community debt owed on the car. It was within the trial court's discretion to believe Esther's testimony to the extent it conflicted with Obinna's. Moreover, at the hearing on the motion for new trial, Obinna offered no additional testimony or evidence concerning the Camry or any alleged community debt owed on it.
On this record, we cannot say the trial court abused its discretion in making the property award. We therefore overrule Obinna's third issue.
III. The Motion for Contempt and Sanctions
In his eleventh issue, Obinna contends the trial court erred or abused its discretion when it failed to hold Esther in contempt and sanction her for her allegedly false affidavit in which she averred that she did not know Obinna's whereabouts, and for several other allegedly false statements made in her petitions, financial information statement, and under oath. We review a ruling on a motion for sanctions under an abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). This court does not have jurisdiction to review the denial of a contempt motion by direct appeal. See Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985) (per curiam).
Obinna contends the trial court was "duty bound" to hold Esther and her attorney in contempt and sanction them for at least eleven alleged false statements. However, Obinna fails to cite to any evidence in the record to support his assertions that the alleged false statements were in fact false or otherwise sanctionable. To the extent Obinna may be referring to documents appended to his brief that are not in the record, we do not consider those documents. See Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 342 n. 2 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 292B93 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
Obinna has not demonstrated that the trial court abused its discretion in denying the requested sanctions. We therefore overrule Obinna's eleventh issue.
IV. The Child Support Award
In his fourth issue, Obinna contends the trial court "erred or abused its discretion" in awarding child support of $1,500 per month. We review a trial court's order setting child support under the same abuse of discretion standard as applied to the trial court's property division. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Evans, 14 S.W.3d at 345B46.
At the divorce hearing, Esther apparently claimed in her financial information statement (which was not admitted into evidence at the divorce hearing) that Obinna made $6,000 per month, but she admitted that this figure was based on Obinna's income before he left for Nigeria, and she had no documentation to support it. Esther also admitted she had no evidence of Obinna's income earned either in the United States or Nigeria since 2002. Obinna testified that he served as Commissioner for Education in Nigeria from October 2001 until May 2003, and that he made less than $2,000 per month during that period. He also testified that he was unemployed since that time, and that he had no income. Although Obinna also testified he had "gotten a space with a law firm in Washington, D.C.," he stated that he needed time to generate business and make money, and he was not cross-examined on any income he may have had at the time. Thus, at the time of the divorce hearing in July 2005, Esther had no evidence of any income earned by Obinna for approximately three years, and the only other evidence of Obinna's income was Obinna's testimony that he made less than $2,000 per year until May 2003, when he became unemployed, and he had no current income.
Generally, to determine an obligor's child support liability under the Family Code guidelines, the trial court calculates the obligor's net resources. See TEX. FAM. CODE § 154.062 (setting out elements that constitute net resources). In the absence of evidence of net resources, the trial court presumes that the obligor earns the federal minimum wage for a forty-hour week. Id. § 154.068. Applying this presumption, the trial court's award is considerably more than 35% of Obinna's net resources. See id. § 154.125 (when obligor's net resources are $6,000 or less, child support guideline for four children is 35% of obligor's net resources). Further, because the trial court did not make findings of fact, we cannot discern any basis for its award of $1,500 per month.
There is no allegation or evidence that Obinna was intentionally unemployed or underemployed.
Esther contends that the trial court's award was based on Obinna's appointment letter as Education Commissioner in Nigeria, which listed his salary and other benefits. This letter was not admitted into evidence, but was attached to Obinna's first amended answer. The letter purports to show Obinna's annual salary in Nigerian currency, the Naira. According to Esther, the trial court used currency conversion to determine that Obinna was making $4,083 per month, and calculated the child support by applying the guidelines to that amount. Esther concedes that this calculation results in a slightly lesser amount than $1,500, and suggests that we reform the judgment to reflect child support of $1,429.05. However, we find absolutely no evidence in the record to support the claim that the trial court in fact made such a calculation. We hold that there is no evidence in the record to support the trial court's award of child support of $1,500 per month, and therefore the trial court abused its discretion in awarding this amount.
We therefore sustain Obinna's fourth issue, and reverse and remand for a new trial on the issue of child support. Because we sustain this issue, it is unnecessary for us to address Obinna's related first, fifth, sixth, seventh, and tenth issues. V. The Award of Attorney's Fees as Child Support
In Obinna's ninth issue, he claims the trial court "erred or abused its discretion" by excluding admissible evidence of his federal student loan. However, Obinna does not state which of the trial court's holdings — the property division or the child support — the alleged error affects. Moreover, Obinna does not include any argument or authorities in support of the issue. Therefore, we hold he has waived this issue. See TEX. R. APP. P. 38.1(h).
In his eighth issue, Obinna contends the trial court erred when it ordered him to pay a portion of Esther's attorney's fees as child support. We review an award of attorney's fees in the nature of child support for abuse of discretion. See London v. London, 94 S.W.3d 139, 146 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
The divorce decree reflects that an attorney's fee of $1,000 was awarded "as child support" to Esther's trial attorney. The record does not reflect that the award was incurred in a child support enforcement proceeding or some other proceeding in which attorney's fees as child support may be awarded. See Roosth v. Daggett, 869 S.W.2d 634, 637 (Tex.App.-Houston [14th Dist.] 1994, no writ) (holding that attorney's fees incurred in divorce proceeding creating child support obligation and specifically designated as costs were a debt and were not enforceable through contempt as child support). At oral argument, Esther's attorney conceded the award was defective as written, but suggested we merely reform the judgment to strike the erroneous language. However, because we are reversing and remanding for a new trial on child support, we consider the better solution to be for the trial court to correct any errors in the attorney's fee award at that time.
We therefore sustain Obinna's eighth issue.
We reverse those portions of the Final Decree of Divorce awarding child support and attorney's fees only; and remand for proceedings consistent with this opinion. We affirm the remainder of the Final Decree of Divorce. We also affirm the denial of Obinna Duruji's petition to enforce a foreign judgment.
Affirmed in Part and Reversed and Remanded in Part.