NO. 07-02-0167-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D MARCH 11, 2004

______________________________ IN THE IN TEREST OF WILLIAM JODY SU LLIVAN, JR.

_________________________________ FROM THE 310TH DISTRICT COURT OF HA RRIS COUNTY; NO. 85-09 872; HONO RABLE L ISA MILLA RD, JUDG E

_______________________________ Before QUINN and REAVIS and CAMPBELL , JJ.
MEMORAND UM OPINION App el lantGlenda Gayle Cazalas brings this appeal challenging a judgment she obtained against appellee W illi am Jody Sullivan in a motion for enforcement of chil d support. She presents seven issues complaining of the trial court’s refusal to grant all of the relief s he sough t, and fail ure to join t he child for whom support h ad been ordered. We will aff irm.
William Jody Sullivan, Jr. (referred to by the parties and herein asJody), wa s born
on February 7, 1983, to William Jody Sullivan (William) and Rhonda Lee Sul livan (R honda).1 The record before us in this appeal does not reflect the entire procedural history in the trial cou rt . For some of the procedural events recited in this opin ion, we rely on the opinion of the Fourteenth Court of Appeals in an earli er appeal i n this case, styled In re W.J.S. , 35 S.W.3d 274 (Tex.App.–Houston [14 th Dist.] 20 00, no pe t.).

2 The trial court also dismissed appellant’s motion to modify, based on appellant’s adoption of Jody. W.J.S. , 35 S.W.3d at 276.

3 W.J.S. , 35 S.W.3 d at 277. -2- The Sullivans were divorced by a September 1985 decree. Th is decree i s not in the record before us, but a ppellan t asserts it ordere d Willia m to pay $ 300 per m onth in c hild sup port. Appellant

is Jody’s maternal grandmother whotestified she cared for him since 1986 after William moved to Kentucky. In 1993, Rhonda al so mo ved out of the state, leaving appella nt as Jod y’s solecaretake r.
In March 1998, appellant filed a motion to modify asking to be named sole managing conservator

and seeking child su pport. William apparently filed a general deni al in the modification proceeding. 1 On a date not shown in thisrecord, a ppellan t initia ted a sep arate proceeding in the s ame court seeking termination of William and Rhonda’ s parenta l rights and to adopt Jody as her son. The termination and adoption became final in October 1998. In December 1998, ap pellant filed a m otion to enforce W illiam’ s past-du e child support obligations. In January 1999, William responded by filing a special appearanceand plea to the jurisdiction which the trial court sustained, dismissing the motio n for enfo rcement. 2 Appellant

appealed tha t dismis sal and, in an opinion issued D ecember 28, 2000, the Fourteen th Court of Appeals reversed, holding the trial court had personal jurisdiction over William. 3 It remand ed the ca se to the trial cou rt for furth er procee dings.-3-

In February 2001, Jody turned 18 years old. In Nove mber 2001 appellant filed her firstamended motion fo r enforcem ent. The motion alleged that appellant was the person entitled to receive payments on behalf of Jody and that William had failed to comply with the court’s s upport or

der. Itasked th at he be held in contempt f or “failu re to pay movant,” jailed and fine d. In themotion, a ppellan t also so ught a jud gment for past support a nd interest, together

with costs and attorneys fees. She also asked the court to order Wi lliam’s incomewithheld to enforce payment of the child support. The record shows this motion was served on William in Kentucky in December 2 001.
The trial court held a hearing on the motion in January 2002. William appeared only through counsel

. At the hearing appellant also urged a motion seeking joinder of Jody as
a party to the litigation and a second amended motion for enforcement that added a claim seeking reimbursement for $121,940 in necessaries provided to Jo dy. The trial co urt refused to join Jody and refused to hear the second am ended mot ion because neither document had been served o n Willia m before t he heari ng.
Attachmen ts to ap pellant’s first amended motion for enforcement showed unpaid child support totaled $47,10 0 in O ctober 1998 just before appellant’s adoption of Jody. Appellant

testified that she had supported Jody since he was three years old and that she had never received a child su pport paymentfrom William. The trial court also admitted, as reflecting the testimony appellant would give if asked , an u nsi gned affidavit in which appellant

summarized the amounts she expended for Jody from 1983 through 1998. On
cross examination, appellant conceded she was not a party to Jody’ s p arents’ divorce action a nd the de cree did not dire ct that sh e was to receive a ny suppo rt payment s.-4-

William’s attorney argued appellant’s claims should be denied because she had failed to establ ish any a ssignmen t of suppo rt obligati ons from Jody’s natural mother and there were no pleadings to support her claim for ne cessaries. At the conclusion of the hearing, the court orally rendered a judgmentfor appellant, awarding her $47,100, together with pre- and post-judgment interest. It also held William in contempt but denied all other relief.
Th e trial court’s written order, signed January 24, 2002, consistent w ith the oral rendition, found William in contemptfor each missed payment from the 1985 decree until the October 1998 adoption and awarded appellant a judgment for past child support and interesttotal ling $84, 269.39. The orde r also re cited tha t appell ant provi ded “nece ssary care and support” in the amo unt of $121,940.80, but did not grant her judgment for that amount. It

denied all othe r relief r equested by appel lant. Appellant

filed a motion for new trial com plaining of the trial court’s failure to join Jodyas a party, failure to confine William or order withhol ding of h is incom e, and fa ilure to award costs and attorneys fees. Later appellant again moved for joinder of Jody asa party. The court den ied both mo t ions, prompting this appeal. Appellant has fil ed a brief presenting her seven issues. William hasneither appealed the judgment against him nor filed an appelle e’s brief. Appellant’s first issue assigns error to the trial court’s failure to incarcerate Wil liam after finding him in contempt. In support s he cites authority establi shing th at child support obligations are not debts for which imprisonment is co nstitutionally barred. See, e.g., Ex4 See Tex . Fam. Cod e Ann.§1 01.021 (Vernon 20 02).
5 See Tex . Fam. Cod e Ann. §1 51.001(c) (Vernon 2002). -5- parteBirkhead , 127 Tex . 556, 95S.W .2d 953 (1936) . While we agree this is a correct statementof the law, it whol ly failsto show the trial court’s f ailure to exercis e its power to inc arcerateWilliam was reversible error. Indeed, the applicabl e law prohibited the c ourt
even from hold ing Will iam in co ntempt. The Family Code bars a finding of contemptwhen the respondent does not personally appear at

the enforcement hearing. Tex. Fam. Code Ann. §§157.066, 157.115(b) (Vernon 2002); In re Whit e , 45 S.W.3d 787, 790(Tex.Ap p.– Waco 2001, no pe t.). Beca use any contempt finding was improper, any incarceration based on that finding would likewise h ave been improper. We ove r rule appellant’s first issue.
In her second issue, appellant assigns error to the trial court’s failure to award co sts and attorneys fees. She c ites Section 157.16 7 of the Family Code, pointing out that i t “specificallyallows for the p ayment of attorneysfees and costs.” I n fact, that statute makes
an award of

attorneys

fees and costs man datory, un less the court finds good cau se not to make such an award. Marriage of Vogel , 885 S.W.2d 648, 651 (Tex.App.–Amarillo 1994, writdenied). On the i ncomplete r ecord before us, however, and under the peculiar circumstances reflected in it, by which appellant was granted a judgment based on unpaid child supp ort even though she apparently was not the obli gee 4 under the order direct in g paymentof child support, but held a claim fo r th e provision of necessaries, 5 we find the awarding of a ttorneys fees to be governed by Family Code Section 106.002 rather than Section 157.167 , and thu s discret ionary w ith the trial cour t. See In re

C.R .O. , 96 S.W. 3d6 In another section of her brief, appellant asksthis court to order an administrative

writof withh olding, citing F amily Co de Secti o ns 158.501(a) and 158.502(a). Appellant’s reliance on those statutes is misplaced. Sections 158.501 and 158.502 a uthorize “the Title IV-D agency” to initiate income withholding by administrative writ. Title IV-D is a reference to Part D of Title IV o f the federal S ocial Se curity Ac t. See 42 U.S.C. § 651 et seq . In Texas, the Title IV-D agency is the office of the Attorney Gene ral. Tex. Fam. Code A n n. § 231.00 1 (Vernon 2002). -6- 442, 452 (Tex .App.–Ama rillo 20 02, pet. d enied). A trial court abu ses its d iscretio n if it ac ts arbitrarilyand unreasonably or without reference

to any gu iding ru les or pr inciple s. Downer
v. Aquama rine Oper

ato rs, Inc. , 70 1 S.W.2d 2 38, 241-4 2 (Tex. 1 985), cert. denied , 476 U.S. 1159 (1986). Because appellant has not de monstra ted an abuse of the court’s discreti on with r

espect to

costs an d attorne ys fees, we overrul e her second issu e.
In her third issue, appellant challenges the trial court’s failure to order wi thholding from William ’s dispo sable in come. She relies on various sections of Chapters 1 57 and 158 of the Family Code, 6 includi ng Secti on 158.001 which mandates that any order for enforcementof child support include an order for income withholding. As with ap pellant’s second issue, u nder the specific facts present here, we cannot say that the trial court erred in failing to order t he imple me ntation of the statutory income-withholding mechanism in enforcement of the judgment granted appellant. Appellant’s third issue is overruled. Byher fourth and sixth is sues, appellant assigns error, respectively, to the trial court’s refusal to grant her motions to join Jody as a party and to the trial court’s denial of discover ysanction s agains t Willia m. Appel lant requ ests that we reverse the judgment in her favor and remand the case to the trial court wi th instructi ons to ord er Jody’s joinder, to order William to respond to her discovery and to issu e discovery sanctions. The Rules of-7-

Appella te Pro cedure pr ovide that we may not reverse a judgment because of the trial court’s error of law unless we conclude that the error complained of (1) probably caused the rendition of an impr oper judgment; or (2) probably prevented the appellant from properlypresenti ng the ca se on app eal. Tex . R. App. Proc. 44. 1(a ). Ev en assuming, arguendo , that the trial court’s rulings were in error, appellant has provided neither argumentnor auth ority ex plainin g how tha t standard is met he re. At ora l argument , appellant

conceded she was not harmed b y the trial court’s denial of her motion to join Jody. With respect to her sixth issue, appellant relies only on her counsel’s statement at the hearing that he delivered discovery documents to Wil liam’s attorney wi th the first amended motion for enforcement in November 2001. The record reflects that discussion occurred after bot h parties rested, ju st prior to th e court’s rendition of judgment for appellant. Her fourth and sixth issues are overruled. Appellant’s fifth issue complains of the trial court’sfai lure to render a default judgme ntfor her based on William’s failure to appea r at the hearing. She cites Sec tio n 157.115 of

the Fami ly Code in suppo rt. Secti on 157.1 15 provi des that acourt “may render
a default order for the relief requested” if a respondent who h as been properly served fails to appear. By her a rgument, a ppellan t primaril y reitera tes her ar gumentsunder issues one thro ugh four. We consider that those arguments were addressed adequately in ou r disposition of

those issues. Appellant also reiterates her argument that the trial court erred in failing to order punishme nt for con tempt. As previ ously no ted, the t rial cou rtwas without authority to hold William in contempt in hisab sence. Tex. Fam. Code Ann. §157.066 (Verno n 2002). F urther, th e Rules of Appel late Procedure req uire, as a prerequ isite to-8-

appella te review of a complaint, that a party present to the trial cou rt a timel y request , objection or motion that state s the spe cifi c grounds therefor, and obtain a ruling. Tex. R. App. Proc. 33 .1. Otherw ise, erro r is not p reserved for review. See Holland v. Wal-Mart Stores, Inc. , 1 S.W.3d 91, 94 (T ex. 1999 ). The re cord r eflects that before beginning his presentation of evidence at the hearing, appellant’s counsel made the following statement to the court: “We are ready to proceed. I would first like to call - - we would like to move for a judgment in the absence of this gentleman. And I would l ike to report to the Court that the trial sc hedulin g order of Novembe r had thi s matter se t for t oday.” There followed a discussion among co unsel an d the cou rt concern ing servi ce of the fi rst amended motion for enforcement on William and the procedural history of the case. Counsel then proceeded to call hi s first witness. The record does not reflect that appellant obtaine d a ruling on a requestor motion for a default judgment pursuant to Section 157.115. A ppella nt ’s fifth issue thu s presents nothin g for revi ew and i s overrul ed. Likewise, appellant’s seventh issue, complaining of the denial of her motion for new trial, presents nothing for our re view. Appellant argues that William’s failure to ap pear at the hearing, and the trial court’s failure to require him to do so, was “unconstitutional” and deprived her of due process. She cites In re Taylor , 39 S.W.3d 406 (Tex.App.–Waco 2001, orig. proceedi ng), in which the court discussed a trial court’s duty to o rder a res pondent to personal lyapp ear and respond to a motion for enforcement requesting contempt, under Section 157.061

. Id. at413-14. We do not understand appellant to argue, though, that the court did not order William to appear at the hearing. Assuming that notice of the hearing7 The record is not en tirel y clear on this point. The proposed Order to Appear

appended to the firstamended motion for enforcement contained in the record names an earlier hearing date. Counsel for William indicated at the hearing, though, that his client was aware of the heari ng. -9- was properly

given h im, 7 when hedid not appear, t he court could have issued a capias for his arrest. Tex. Fam. Code Ann. §§157.066, 157.114 (Vernon 2002). The record does not show tha t the tria l court was asked to do so. Instead, the case proceeded to a judgment in appellant’s favor. Moreover, the court’s failure to re quire William’s presence was not addressed in appe llant’s motion fo r new tria l, which is the su bje ct of her se venth issue. Despiteappellant’s bare reference to due process, she may not raise her

complaint about William’s absence from the hearing for the first time on appeal. Tex. R. App. Proc. 33.1(a).

Having overruled appella nt’s issu es, we af firm the trial cour

t’s judgme nt.

James T. Campbell Justice