Affirmed and Memorandum Opinion filed May 30 , 2013

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 11

- 01081

- CV

VICTORIA V. OCHSNER , Appellant

V.
PRESTON A. OCHSNER , Appellee

On Appeal from the 247th District Court

Harris County, Texas Trial Court Cause No. 2001

- 54131

M E M O R A N D U M O P I N I O N

Victoria V. Ochsner appeals from the trial court‘s order modifying child support in a suit for modification of the parent

- child relationship concerning the
Child of Victoria and Preston A. Ochsner. We affirm.2 I. B ACKGROUND
The Child was born in 19 98, and Victoria and Preston divorced in 2001. The trial court appointed Victoria and Preston as joint managing conservators, with Victoria having th e exclusive right to determine the residence and domicile of the Child. The court ordered Preston to pay Victoria $24 0 per month as child support and $563 per month to the Child‘s daycare facility as long as the Child was enrolled in daycare; thereafter, Preston would pay Victoria $800 per month. 1
In 2011, Preston petitioned for a modification of the parent

- child relationship. 2 In July 2011, the trial court signed a temporary order directing Preston to pay Victoria $1,500 per month as child support and ordering Victoria to pay ―as additional child support . . . the private school tuition and fees for [the Child] to attend St . Thomas Episcopal School.‖ The parties proceeded to trial on September 26, 2011, and the trial court signed its final judgment, ― O rder in S uit to Modify P arent

- Child R elationship , ‖ on October 26, 2011. The court ordered Preston to pay Victoria $1,421.44 per month as child support and awarded $6,000 in attorney‘s fees to Preston‘s counsel

. 3 The order also included a handwritten note: ―Temporary Orders will survive this final order.‖ Victoria filed a request for findings of fact and conclusions of law on November 8, 2011. Also on that date, the trial court signed an ― O rder Granting
Clarific ation of Prior O rder ,‖ finding that its prior temporary order was not specific

1 Victoria eventually filed a motion to enforce, but that motion is not the subject of this appeal. See Ochsner v. Ochsner , Nos. 14

- 11

- 00395

- CV, 14

- 11

- 00412

- CV, 2012 WL 1854743 (Tex. App.

— Houston [14th Dist.] May 22, 20 12, no pet.) (mem. op.).

2 In these proceedings, Preston has been represented by counsel, and Victoria has represented herself, although she is a licensed attorney practicing law.

3 The order included a ―statement on guidelines‖ where the court found that the amount of child support ordered was in accordance with the percentage guidelines as 20 percent of Preston‘s net resources; the amount of net resources available to Preston was $7,107.20 per month; and the amount of net resources available to Victoria w as $1,949.90 per month.3

enough to be enforceable by contempt . The court ordered that Victoria pay Preston $3,311.84 ― as reimbursement for the private school tuition and fees for [the Child] to attend St. Thomas Episcopal School which were withdrawn from Preston Ochsner‘s bank account .‖ The court further ordered Victoria to ―personally go to St. Thomas Episcopal School . . . and sign all forms and documents necessary to remove Preston Oschsner as a res ponsible party for any tuition and fees payments for [the Child] to attend St. Thomas Episcopal School.‖ Finally, the court ordered Victoria to pay $2,000 in attorney‘s fees to Preston‘s
counsel.

Victoria filed a notice of appeal and a notice of past

- due findings of fact and
conclusions of law. Th e trial court signed findings of fact and conclusions of law on December 20, 2011.

II. A NALYSIS Victoria brings four issues, contending the trial court erred by (1) ―failing to file findings of fact and conclusions of law‖; (2) ―ordering Victoria Ochsner to pay private school tuition and fees as additional child support without specifying

e xactly how much should she pay‖; (3) ―ordering Victoria Ochsner to reimburse Preston Ochsner for the private school tuition and fees as additional child support in the amount $3,311.84 for [the Child] to attend‖ private school; and (4) awarding attorney‘s fees to Pr eston ―without good cause shown.‖ Preston did not file an appellate brief.

A. Findings of Fact and Conclusions of Law Contrary to Victoria‘s assertion, t he record reveals that the trial court signed findings of fact and conclusions of law on December 20, 201 1. Although those findings do not appear to address the issues concerning Victoria on appeal , she4

waived any complaint abo ut the adequacy of the findings by not requesting specified additional or amended findings under T EX

. R. C IV

. P. 298

. See Cities
Servs. Co. v. Ellison , 698 S.W.2d 387, 390 (Tex. App.

— Houston [14th Dist.] 1985, writ ref‘d n.r.e); see also Operation Rescue

- Nat’l v. Planned Parenthood of Hous. & Sw. Tex., Inc. , 975 S.W.2d 546, 561 (Tex. 1998). 4

Victoria‘s first issue is over ruled.

B. Private School Tuition of an Unspecified Amount Victoria contends that the trial court‘s final judgment ordered her to ―pay private school tuition and fees as additional child support each month as it comes due for [the Child] to attend [private sch ool] without specifying exactly how much should she pay .‖ We find no such requirement in the trial court‘s final judgment
, the October 26, 2011 order

. The temporary order include d a provision requiring Victoria to pay the Child‘s private school tuition without specifying the amount. The general rule is that ―temporary orders [do] not survive entry of the final [judgment], and cannot form the basis of an appeal.‖ Amerson v. Amerson , No. 14

- 01

- 00625

- CV, 2002 WL 1438672, at *1 (Tex. App.

— Houston [14th Dis t.] July 3, 2002, no pet.) (mem. op., not designated for publication); see also , e.g. , Coke v. Coke , 802 S.W.2d 270, 273 (Tex. App.

— Dallas 1990, writ denied) (―Typically, a temporary order expires with the entry of a final judgment. . . . [A] final decree does supersede such a prior temporary order with re gard to future child support.‖). The trial court‘s judgment in this case does not explicitly order Victoria to

4 The trial court also satisfied its obligation, ―[w]ithout regard to Rules 296 through 299, Texas Rules of Civil Procedure,‖ by making the requisite findings specified in Section 154.130 of the Texas Family Code, as discussed in fo otnote 3, supra

. See T EX

. F AM

. C ODE A NN

. § 154.130 (West Supp

. 2012).5

pay for the Child‘s private school tuition. However, the judgment includes a
handwritten not e that ―Temporary Orders will survive this order.‖ This note

create s an ambiguity about whether or not Victoria‘s obligation under the temporary order to pay private school tuition was incorporated by reference into
the final order

— a determination we make de novo. See Shanks v. Treadway , 11 0 S.W.3d 444, 447 (Tex. 2003). When a judgment is ambiguous, we must review the record along with the judgment to aid in interpreting the judgment. Id. Further, we ―should adopt the constructio n that correctly applies the law.‖ Id. (citing MacGregor v. Rich , 941 S.W.2d 74, 75 (Tex. 1997)).

R eviewing the record as a whole, we conclude that the trial court did not order Victoria to pay private school tuition for the Child. This interpretation

co rrectly applies the law; the contrary interpretation would require reversal. The original divorce decree , signed when the Child was about three years old, did not order either party to pay for private school tuition . Preston‘s obligation to pay for daycar e would cease when the child‘s enrollment in daycare terminated, and his child support payments would automatically increase to $800 per month . However, Victoria testified that from 2003 to 2008, Preston paid only the original amount of $240 per month. S he testified further that in addition to that amount, Preston paid for private school tuition for the Child in excess of $1,000 per month. Thus, Preston‘s payment of the private school tuition was arranged informally between the parties. At the hearing be fore the trial court signed its temporary order, Victoria was given the option to maintain the status quo and have Preston pay tuition plus $240 per month, or she could have opted to pay the tuition herself and receive from6

Preston $1,500 per month. She c hose the latter option. 5 The trial court‘s final order awarded to Victoria the statutory guideline of 20% of Preston‘s net resources and did not specifically order Victoria to pay any chi ld support for private tuition.
Indeed, had the trial court ordered Victoria to pay private school tuition going forward

— which the record evidence indicated was about $1,100 to $1,200 per month

— the court‘s order would have greatly exceeded the 20% guideline: the
award would have been more than 5 5 % of Victoria‘s net resources. See T EX

. F AM

. C ODE A NN

. § 154.125 (West 2008 ) (creating presumption that obligor pay 20% of

net resources for support of a single child); see also In re Marriage of Grossnickle , 115 S.W.3d 238, 247 (Tex. App.

— Texarkana 2003, no pet.) (paym ent of private school tuition ―is necessarily a form of child support‖). Such a departure from the guidelines would have required the trial court sua sponte to make findings concerning ―the specific reasons that the amount of child support per month
order ed by the court varies from the amount computed by applying the percentage guidelines.‖ T E X

. F AM

. C ODE A NN

. § 154.130(b); see also Omodele v. Adams , No.
14

- 01

- 00999

- CV, 2003 WL 133602, at *5 (Tex. App.

— Houston [14th Dist.] Jan. 16, 2003) (mem. op.) (rever sing because the trial court abused its discretion by deviating from the guidelines without making the finding required by Section 154.130). 6 Accordingly, Victoria‘s proposed interpretation of the final judgment would require reversal for an abuse of disc retion, whereas the competing interpretation does no t.

5 As discussed below, however, Preston alleged that his bank account continued to be debited for private school tuition after the trial court signed the temporary order.

6 See also In r e Marriage of Grossnickle , 115 S.W.3d at 248

– 49 (reversing ―the portion of the order directing [appellant] to pay one half of an unascertainable amount [for private school tuition because it] is too vague to be enforceable‖ by contempt; assuming the award was for an amount derived from testimony, it caused the award to exceed the guidelines by 0.3% of obligor‘s net resources).7

Finally, we note that the trial court signed a clarification order to make the temporary order enforceable by contempt and award a money judgment against Victoria in favor of Preston regarding the paym ent of private school tuition mistakenly withdrawn from Preston‘s bank account during the pendency of the modification proceeding . The court ordered Victoria to sign all necessary documents with the school to remove Preston as a responsible party for futu re tuition and fees. The trial court did not , however, instruct Victoria to add her name as a responsible party or otherwise order Victoria to pay future tuition and fees.

We conclude that t he final judgment does not order Victoria to pay as
additional child support unspecified costs of the Child‘s private school tuition. 7 This construction correctly applies the law and is consistent with the remainder of
the record.

Victoria‘s second issue is overruled.

C. Clarification of Temporary Order After signing it s final order modifying child support obligations, the trial court signed an order clarifying its prior temporary order to award $3,311.84 as reimbursement for private school tuition paid by Preston between the time that the trial court signed the temporar y and final support orders

. 8 Victoria contends that the trial court abused its discretion ―because there is no evidence of a substantive and probative character in the record to support the trial court‘s decision.‖

7 Nor does the order require Preston to pay for private school tuition, but Victoria does not complain on appeal about that ruling.

8 Although the trial court‘s signing of a final judgment will cause the temporary order to expire, the final judgment ―does not nullify a temporary order with regard to child support due up to the time of the [judgment].‖ Coker , 802 S.W.2d at 273; accord In re Gonzalez , 993 S.W.2d 147, 156 n.2 (Tex. App.

— San Antonio 1999, no pet.); Ball v. Ball , No. 14

- 99

- 01402

- CV, 2001 WL 543731, at *3 (Tex. App.

— Houston [14th Dist.] May 24, 2001, no pet.) (not designated for publication).8

The trial court‘s clarification order in dicates that the court held a hearing on Preston‘s ―second amended motion for enforcement‖ on October 26, 2011, and ―[t]he record of testimony was duly reported by the court reporter.‖ However, Victoria failed to make this transcript part of the record on appeal, and the record
contains no request for a partial reporter‘s record that includes ―statement of the points or issues to be presented on appeal.‖ See T EX

. R. A PP

. P. 34.6(c)(1). If an appellant fails to file a statement of the points or issues req uired by Rule 34.6(c)(1) and ― fails to present a complete reporter‘s record on appeal, the court of appeals must presume the omitted portions are relevant and support the trial court‘s judgment.‖ London v. London , 94 S.W.3d 139, 143 (Tex. App.

— Houston [14 th Dist.] 2002, no pet.); see also Bennet v. Cochran , 96 S.W.3d 227, 229 (Tex. 2002) (―There is no question that, had [the appellant] failed to submit his statement of points or issues, Rule 34.6 would require the appellate court to affirm the trial court‘ s judgment.‖). Indeed, the court reporter informed this court that Victoria has not made payment arrangements for the reporter‘s record and did not request preparation of
the record from the October 26, 2011 hearing. ―Consequently, we must presume
that th e missing [reporter‘s record is] relevant and support[s] the trial court‘s judgment.‖ In re A.M.K. , No. 14

- 03

- 01308

- CV, 2005 WL 3005636, at *1 (Tex. App.

— Houston [14th Dist.] Nov. 10, 2005, pet. denied) (mem. op.) (applying presumption when the court repo rter informed this court that the appellant refused to pay for part of the record).

Victoria‘s third issue is overruled.

D. Attorney’s Fees Victoria contends that the trial court erred by awarding attorney‘s fees to Preston‘s counsel in the amounts of $6,000 and $2,000 respectively in the final9

modification order and the clarification order. She contends that because Preston ―is a non

- prevail ing party, the award of attorney‘s fees should be reversed and remanded to the trial court for the court to hear evidence on whether good cause supports the award of attorney‘s fees in favor of Preston.‖ ―In family law matters, the trial court has broad di scretion in awarding attorney‘s fees, particularly in those matters involving the parent

- child relationship.‖ London v. L ondon , 192 S.W.3d 6, 19 (Tex. App.

— Houston [14th Dist.] 2005, pet. denied) (citing T EX

. F AM

. C ODE A NN

. § 106.002 ( West Supp. 2005)). However, ―no provision is made, absent good cause, for allowing an unsuccessful party recovery of her attorney‘s fees.‖ Id. Regardless of whether Preston was a prevailing party in the modification proceeding, 9 the trial court specifically state d in the or der that ―good cause exists‖ to award attorney‘s fees to Preston‘s attorney. Victoria makes no argument concerning whether the record evidence supports the trial court‘s finding, and her only request is that we remand for the trial court to ―hear evidence on whether good cause supports the award.‖ Because the trial court has already made a good

cause finding, we overrule her request. Further, the record reveals that Preston was a prevailing party in the clarification proceeding as the trial court awarded him $3,311.84 as reimbursement for payment of private school tuition

. Accordingly, the trial court was not required to make a good

- cause finding to award the $2,000 in attorney‘s fees for the

9 Victoria provides no argument for why Preston should be considered a non

- prevailing party. ―Deciding which litigant is a  ̳successful party‘ is often a difficult task in family law cases.‖ Nordstrom v. Nordstrom , 965 S.W.2d 575, 583 (Tex. App.

— Houston [1st Dist.] 1998, pet. denied). Preston initially petitioned the court to increase his child support payments. He then petitioned for a decrease because he quit his job. But at trial, he stipulated that his earning capacity was $10,000 per month. The amount of net resources found by t he trial court could be consistent with this stipulated earning capacity. See T EX

. F AM

. C ODE A NN

. §§ 154.061, 154.062 (West 2008). Accordingly, it is not clear that Preston was a ―non

- prevailing party.‖10

clarification proceeding , and a remand on that issue is unwarra nted

. Victoria‘s fourth issue is overruled.

III. C ONCLUSION Having overruled all of Victoria‘s issues, we affirm the trial court‘s judgment.

/s/ Sharon McCally Justice

Panel consists of Justices Boyce, McCally, and Mirabal. 10

10 Senior Justice Margaret Garner Mirabal sitting by assignment.