Viridiana Pace v. Carlos Von Retteg
Viridiana Pace v. Carlos Von Retteg
Opinion
Pace and von Retteg divorced in 1992. The district court modified the original decree in 1995 to make Pace solely responsible for the financial support of their older child and von Retteg solely responsible for their younger child. The court also restricted the domicile of the younger child to within fifty miles of downtown Austin.
In November 1996, von Retteg moved to lift the domicile restriction. An associate judge held hearings on his first amended motion in July 1997. After the hearings, von Retteg filed a notice of appeal and request for de novo hearing before the referring court. On December 8, 1997, von Retteg filed a second amended motion to modify, reiterating his challenge to the domicile restriction and adding a request that Pace pay child support for their younger child. Two days later he filed an amended notice of appeal and request for de novo hearing. An order refusing to change the domicile of the child based on the July hearings held on the first amended motion to modify appears to have been signed by the associate judge on December 15, then by a district judge on December 18, 1997; there is no indication that the district court held a de novo hearing before signing the order. The order specifically reserves for later consideration issues in the first amended motion not presented at the July hearings.
On February 17, 1998, the district court held a hearing on several motions, including von Retteg's second motion to modify. On May 7, 1998, the district court signed an order granting von Retteg's motion. The court greatly eased the child's domicile restrictions, allowing him to move to California. The court also required Pace to pay $500 per month in child support effective December 1, 1997, as well as other expenses and fees.
On May 18, 1998, von Retteg filed a motion to enforce. The district court heard the motion on May 28, 1998, with Pace absent but represented by counsel. The court confirmed an arrearage of $500 since May 1 with prejudgment interest. The court found wage withholding unworkable or inappropriate and ordered Pace to post a $6,000 bond. The court also awarded von Retteg $750 in attorney's fees.
Pace raises five issues on appeal. The issues concern mostly procedural aspects of the case that Pace contends should have prevented the district court from exercising power and rendering the rulings that it did.
Pace initially contends that the issue of domicile restriction was not properly before the court at the February 17, 1998 hearing. She contends that the December 18, 1997 order disposed of all pending claims. The language in the orders of December 18 and May 7 belies that contention. The December 18 order specifically limits its ruling to the issues from the first amended motion to modify. It neither addresses the second amended motion expressly nor contains Mother Hubbard language that could be construed to overrule the second motion generally. In the May 7 order arising from the February hearing and expressly addressing the second amended motion, the court makes no reference to the first amended motion, the December order, or any de novo appeal from the associate judge's recommendations. The court had the power at the February 17 hearing to rule on the domicile issue contained in the second amended motion.
Pace next contends that the October 1995 order could not be modified because it was based on the agreement of the parties, citing Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995). She alleges without rebuttal that, in reaching this 1995 agreement, she waived von Retteg's past-due child support to compensate for the fact that von Retteg's financial responsibility for the younger child would outlast Pace's responsibility for the older child. Pace, however, cites no authority for the proposition that a court cannot modify a child-support order that incorporates an agreement of the parties. Instead, the Family Code allows courts to modify a support order. Tex. Fam. Code Ann. § 156.001 (West 1996). This is true even if the order does nothing more than incorporate an agreement of the parties. See Giangrosso v. Crosley, 840 S.W.2d 765, 768 (Tex. App.--Houston [1st Dist.] 1992, no writ). Courts can modify child support orders if the circumstances of the child or a person affected by the order change materially and substantially after the original decree. Tex. Fam. Code Ann. § 156.401(a) (West Supp. 1999). Orders on child support differ from insurance claim settlements (like that in Padilla) because parent-child relationships often evolve and persist, unlike the static relationships involved in insurance claim settlements, which tend to be confined by the unchanging facts of the incident giving rise to the claim. The court could consider the original agreement of the parties, but was authorized to modify the order to account for subsequent changes in circumstances. The May 7 order recites that circumstances have changed materially and substantially. The court therefore had the power to modify the support set out in the October 1995 order.
Pace next contends that the trial court erred by making her child support obligation retroactive to the December 1997 filing of the second amended motion to modify. Support orders may be modified only as to obligations accruing after the earlier of the date citation is served or the party makes an appearance in the suit to modify. Tex. Fam. Code Ann. § 156.401(b) (West 1996). Pace asserts that the original motion to modify could not have triggered the accrual because it did not request modification of the child support. She alleges that, though her counsel received service of the second amended motion, she was not served personally with it. She did not appear in court regarding this motion until the February 17 hearing and did not file a response until February 24. Starting the accrual before February 1998, she contends, was therefore error. We disagree. Pace does not challenge the sufficiency of the service of citation on the original motion. Normally, motions following the initial filing of a cause of action may be served by mail. Tex. R. Civ. P. 21a. A dilemma arises here because section 156.401(b) does not address the special issue of whether requests to modify child support contained in amendments to motions that originally did not contain such requests need to be served by citation. The trial court resolved this dilemma by using the date of mailing of the amendment first requesting child support. This fair and reasonable solution avoids imposing new service requirements on petitioners, but also avoids imposing child support liability on respondents (or modifying the liability) until the petitioner requests it. The trial court did not err by making the child support modification effective the date von Retteg mailed the second amended motion to modify the custody decree.
Pace contends the court erred by holding a hearing on von Retteg's motion to enforce the May 7 order because Pace was neither properly served nor present. The notice provisions of the Family Code state that notice of hearing may be sent by first-class mail to the respondent, provided that the notifying party files a certificate of service showing the date of mailing and the name of the person sending the notice. Tex. Fam. Code Ann. § 157.065 (West 1996). Pace contends the notice of hearing was defective because the certificate of service, which followed the three-page motion to enforce, states that the "foregoing" was served by mailing to counsel and to Pace; she argues the notice of hearing, on page five, did not "forego" the certificate of service on page four and therefore was not covered by the certificate. She also argues that the certificate was defective because it did not state the name of the person who sent it. We disagree. The goal of the notice requirements is to promote fairness by ensuring that opposing parties inform each other of the time and place the court will consider the issues presented. The motion, certification, and notice are on consecutively numbered pages; all five pages were filed under one heading at the trial court with only the first page date-stamped, indicating they were received together as a unit. There is no indication that Pace did not similarly receive the notice of hearing with the motion and certificate. The goal of the certification requirement was not thwarted by the placement of the certification on page four and the notice of hearing on page five, nor was it thwarted by the wording of the certification paragraph. The certifying paragraph states "I hereby certify" that service occurred and is followed immediately by a signature line with a name typed underneath it. The certifying signature is separate from the signature line following the body of the motion. The use of the pronoun "I" combined with the signature line immediately following the certifying paragraph sufficiently identifies the person sending notice. (1) As for Pace's absence from the hearing, there is no requirement that the respondent be present, only that she be notified of the hearing and have the opportunity to be present. There is no indication that Pace was not aware of the hearing, and she was represented by two attorneys at the hearing.
Nor was the hearing held too soon after the motion to enforce was filed. Pace contends that, in order to have a hearing on ten days' notice, von Retteg had to serve her personally. See Tex. Fam. Code Ann. § 157.062(c) (West 1996) (entitled "Notice of Hearing"). We conclude, however, that section 157.062 must be read in concert with section 157.065, which allows service by mail if the respondent has been ordered to provide the court with the party's current mailing address. Tex. Fam. Code Ann. § 157.065(a) (West Supp. 1999) (entitled "Notice of Hearing, First Class Mail"). Section 157.065 supplements section 157.062 by providing an alternate method of service when the respondent is required to keep the trial court apprised of her address, as Pace was by the May 8, 1998 order. Von Retteg therefore could use the mail to notify Pace of the hearing.
Finally, Pace contends that the trial court erred by ordering her to post a $6,000 bond to secure future payment of child support. The Family Code allows a court to require a bond from a child-support obligor if income withholding from that person is unworkable or inappropriate. Tex. Fam. Code Ann. § 157.109 (West 1996). Von Retteg testified at the May 28 hearing that Pace had testified at the February 17 hearing that her husband's income had allowed her to stop working the previous July. The court concluded that withholding income from Pace was unworkable and inappropriate. Pace contends the court erred because it had no evidence before it regarding Pace's circumstances at the time of the May hearing. The court had before it evidence that Pace voluntarily had not been working three months earlier because of her husband's income, and there was no evidence at the May hearing that had changed. The minimal evidence is less troublesome because the court was not considering the level of child support, but whether a bond to secure payment of the already-set child support was appropriate. In the absence of any indication from Pace or her attorneys that Pace had resumed working, the court reasonably concluded that the February testimony was still accurate. On that basis, the court did not abuse its discretion by concluding that income withholding from Pace was inappropriate or unworkable.
Having resolved all issues on appeal in favor of the judgment, we affirm the order of the trial court.
J. Woodfin Jones, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed: July 29, 1999
Do Not Publish
1. The Code requires that the certificate of service show the name of the person who "sent" the notice, not the person who "mailed" the notice. If Pace is arguing that the certificate must show who put the document into the mail box, we reject that argument.
o" the certificate of service on page four and therefore was not covered by the certificate. She also argues that the certificate was defective because it did not state the name of the person who sent it. We disagree. The goal of the notice req
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