COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE INTEREST OF

A.S.M., A CHILD.

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No. 08-19-00212-CV

Appeal from the

65th District Court

of El Paso County, Texas

(TC#2004CM737)

O P I N I O N

This appeal is another chapter from a 2004 divorce that is no stranger to this Court.1 The 

present dispute arises from a proceeding to confirm child-support arrearage and for entry of 

judgment on the arrearage, filed by Appellant, Rogelio Marquez (Father). He requested 

1

See Marquez v. Cardenas, No. 08-06-00328-CV, 2007 WL 475477, at *1 (Tex. App.—El Paso Feb. 15, 2007, no 

pet.) (mem. op.) (dismissing Father’s appeal of a default order from a hearing on August 19, 2006, for want of 

jurisdiction where there was no resulting appealable order); In re A.S.M., No. 08-07-00065-CV, 2007 WL 1953015, 

at *1 (Tex. App.—El Paso July 5, 2007, no pet.) (mem. op.) (dismissing for want of prosecution Father’s appeal filed 

on March 8, 2007); In re A.M., 351 S.W.3d 395, 396 (Tex. App.—El Paso 2011, no pet.) (affirming the trial court’s 

denial of Father’s bill of review seeking to set aside an order of February 14, 2007); Marquez v. Marquez, No. 08-12-

00116-CV, 2012 WL 3100781, at *1 (Tex. App.—El Paso July 31, 2012, no pet.) (mem op.) (dismissing Father’s 

appeal for want of prosecution); In Interest of A.S.M., No. 08-16-00230-CV, 2016 WL 6304535, at *1 (Tex. App.—

El Paso Oct. 27, 2016, no pet.) (mem. op.) (dismissing for want of jurisdiction Father’s appeal of a 2016 order finding 

Father in criminal contempt for failure to comply with a child support order). And even more recently, Father requested 

mandamus relief from this Court which was denied under In re Marquez, No. 08-20-00246-CV, ___S.W.3d ___(Tex. 

App.—El Paso July 28, 2021, orig. proceeding).
2

confirmation of the total child support that had accrued over thirteen and one-half years on a final 

decree of divorce rendered in October 2004. Appellee, Maria Esther Cardenas (Mother), balked at 

that claim based largely on an April 2005 temporary order, and then a 2007 final order that made 

child support payable to her, and not from her as Appellant claimed. To press that point, she filed 

a motion to dismiss Father’s suit based on res judicata and collateral estoppel, which the trial court 

granted, and to which it also awarded Mother attorney’s fees.

Father brings six issues on appeal challenging the trial court’s dismissal order and a seventh 

issue challenging the manner in which attorney’s fees were awarded. We sustain the issue 

regarding attorney’s fees, but conclude as to the remaining points that Appellant has failed to show 

that any error probably caused the rendition of an improper judgment. Accordingly, we affirm the 

judgment as modified.

I. BACKGROUND

Mother and Father were divorced in 2004 and at the time of the divorce, had one child from 

the marriage. The divorce was heard in cause number 2004CM737, pending in the 65th District 

Court of El Paso County. On June 1, 2018, Father filed a pleading in that same court under the 

same cause number titled “Motion to Confirm Child Support Arrearage and for Entry of Judgment 

on Child Support Arrearage.” Father’s motion asserted the 65th District Court had continuing, 

exclusive jurisdiction of the case. Father’s motion further alleged that on October 29, 2004, in the 

same cause number, the court ordered Mother to pay child support of $160 per month, with the 

first payment due on November 1, 2004, and a like payment being due and payable each month 

thereafter until the child reached the age of eighteen or graduated from high school. Additionally, 

the order required Mother to pay $18 per month for the cost of insuring the child, also beginning 
3

on November 1, 2004, and each month thereafter in like manner.2 Father’s motion to confirm 

arrearage alleged Mother had failed to pay the full amount of child support and medical support 

due each month, uninterrupted, from November 1, 2004, through June 1, 2018. In total, Father 

alleged Mother had committed 164 separate violations of failure to pay ordered-monthly-support 

for a total arrearage of $29,192. Father requested the trial court confirm the total arrearage plus 

interest, to enter a judgment against Mother on that amount, and to order Mother to pay attorney’s 

fees as well.

Mother answered with a general denial, and later on February 19, 2019, she filed a 

combined first amended answer and motion to dismiss Father’s motion to confirm child support 

arrearage. Mother asserted Father’s action to confirm a child support arrearage was barred by 

collateral estoppel and res judicata in that the very same court had rendered a final order on 

February 14, 2007, which appointed Mother the sole managing conservator of the child and 

ordered Father, as the non-custodial parent, to pay child support. Mother asserted the February 14, 

2007 order contained a “Mother Hubbard” clause which specified that all relief requested in the 

case and not expressly granted had been denied, and that the order had supplanted all previous 

orders. Further, Mother alleged that Father had been found to have wrongfully detained and 

secreted the child from Mother, and she was awarded temporary managing conservatorship on 

April 13, 2005, reaffirmed on April 24, 2005, and in that order Father was also ordered to pay child 

support. Lastly, Mother asserted there was no obligation owed by Mother to Father, contrary to 

the allegations of Father’s motion to confirm arrearage, and, in fact, Father was currently in arrears 

for child support and attorney’s fees assessed as child support. In closing, Mother’s motion

requested dismissal of Father’s motion to confirm arrearage, and further requested sanctions based 

2 That judgment was rendered as a default judgment when Wife did not file an answer.
4

on Father’s multiple similar motions, all similarly dismissed, which she claimed were designed to 

harass and threaten Mother.

Father filed multiple notices of intention to take Mother’s oral deposition, causing Mother

to file a motion for protective order and to quash all discovery. On May 22, 2019, the trial court 

heard the motion to quash, motion for protective order, and motion to dismiss. The trial court heard 

argument from Mother’s and Father’s counsel and at both parties’ request, took judicial notice of 

the court’s own file. At the conclusion of the hearing, the trial court granted Mother’s motion to 

dismiss and awarded her attorney’s fees in the amount of $1,750, which the court ordered were in 

the nature of child support and enforceable as such. By separate order, the trial court also granted 

Mother’s motion to quash and for protective order. Father filed a motion for new trial which was 

overruled by operation of law. This appeal followed.

II. DISCUSSION

A. Nature of the Motion filed by Mother

In his first five issues, Father raises a procedural challenge to the dismissal of his 

enforcement proceeding. Specifically, Issue One generally contends that the trial court had no 

authority or jurisdiction to grant the motion to dismiss. In Issue Two, Father contends the trial 

court abused its discretion by dismissing his case without first entertaining a summary judgment 

motion or conducting an evidentiary hearing to address the merits of the affirmative defenses.

Somewhat related, Issues Three and Four challenge the evidentiary basis for granting the motion, 

and Issue Five contends Mother made a judicial admission that she owes some amount due, thus 

proving his entitlement to some relief. We address these issues together.

Rule 91a of the Texas Rules of Civil Procedure allows for a motion to dismiss a baseless 

cause of action on the pleadings and without evidence, but that rule specifically excepts cases 
5

brought under the Texas Family Code. See TEX. R. CIV. P. 91a.1 (describing procedure for seeking 

dismissal of baseless cause of action and excluding cases brought under the Family Code).

Accordingly, the Texas Rules of Civil Procedure do not authorize motions to dismiss in cases 

brought under the Texas Family Code—such as this suit to confirm a child support arrearage—

except in limited circumstances. See In re Sisk, No. 14-13-00785-CV, 2014 WL 5492804, at *4

(Tex. App.—Houston [14th Dist.] Oct. 30, 2014, pet. denied) (mem. op.) (holding that parents’ 

motion to dismiss disabled adult child’s petition for child support was “not recognized under the 

Texas Rules of Civil Procedure or the Texas Family Code”). None of those limited circumstances

apply here. See TEX. FAM. CODE ANN. § 156.102 (providing that a trial court shall deny relief 

without setting a hearing where party fails to include requisite affidavit when filing suit to modify 

conservatorship under this provision); Id. § 155.102 (requiring dismissal if court determines that 

another court has “continuing, exclusive jurisdiction” of the child that is the subject of the suit); 

see also TEX. R. CIV. P. 165a(1) (authorizing dismissal for want of prosecution).

Here, Mother titled her pleading as a motion to dismiss and sought dismissal of Father’s 

child support case based on the defenses of res judicata and collateral estoppel, which are both 

affirmative defenses. See TEX. R. CIV. P. 94. Affirmative defenses should ordinarily be raised 

through a motion for summary judgment or proven at trial. In re D.K.M., 242 S.W.3d 863, 865 

(Tex. App.—Austin 2007, no pet.); In re K.B.S., 172 S.W.3d 152, 153 (Tex. App.—Beaumont 

2005, pet. denied). And the essence of Father’s complaint is that the trial court could have only 

considered res judicata or collateral estoppel in a summary judgment, and not in a motion to 

dismiss.

But even if we would agree with that argument, Appellant carries the burden to show that 

any error of the trial court is harmful. Rule of Appellate Procedure 44.1 commands that “[n]o 
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judgment may be reversed on appeal on the ground that the trial court made an error of law unless 

the court of appeals concludes that the error complained of . . . probably caused the rendition of an 

improper judgment[.]” The rule applies to a claim that a trial court improvidently granted a motion 

to dismiss. Shaw v. Lemon, 427 S.W.3d 536, 546 (Tex. App.—Dallas 2014, pet. denied) (no 

reversible error shown in granting motion to dismiss claim where Appellant did not bring forward 

on appeal some evidence on each element); see also Long v. Yurrick, 319 S.W.3d 944, 947 (Tex. 

App.—Austin 2010, no pet.) (any error in trial court granting motion for summary judgment before 

the date of the set hearing was harmless error). And here, Appellant fails to carry that burden.

First, we note what our record contains. Appellant brought forward a record that includes 

the hearing on the motion to dismiss. At that hearing, he sought to introduce two exhibits. The first 

is a hearing transcript from February 14, 2007, that led to a final order on the same date. Second, 

he also sought to introduce a September 1, 2010 hearing transcript from a proceeding brought to 

enforce back child support against Appellant in this cause. The trial court declined to admit these 

transcripts, but they are included in a bill of exceptions for the purposes of appeal. Appellant also 

brought forward a clerk’s record that contains docket sheets for the case, and as relevant here, 

shows that Appellant filed no written response to the motion to dismiss. He did file a motion for 

new trial but that motion does not attach any evidentiary exhibits.3 Finally, Appellant brought 

forward a supplemental clerk’s record after the briefing in this case was complete. The

supplemental record includes a pleading he filed in the trial court well after the briefing before this 

Court was complete. The pleading contains the Texas Attorney General’s Office’s summary of 

3 Notably, our record does not contain a copy of the October 2004 divorce decree upon which Father claims an 

entitlement to child support, nor the February 14, 2007 final order, or the April 13, 2005 temporary order upon which 

Mother relies. At least as to the temporary order, Father conceded at the hearing that not only did the court order 

temporary support to Mother, but the court also issued a temporary custody order based on her 2005 pleading. The 

hearing transcript that Father sought to admit below confirms that the February 14, 2007 order made Mother the 

custodial parent and awarded her child support.
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child support payments allegedly due and owing.

Based on this record, we cannot conclude that the trial court’s dismissal order probably 

resulted in an improper judgment. First, in large measure, Appellant’s claim is demonstrably false 

based on a simple review of the prior court orders. Both parties at the hearing below asked the trial 

court to take judicial notice of the file. See In re J.E.H., 384 S.W.3d 864, 870 (Tex. App.—San 

Antonio 2012, no pet.) (a trial court may take judicial notice of its own record concerning matters 

that are generally known, easily proven, and not reasonably disputed). The record reflects a final 

order dated February 14, 2007, which the parties agree appointed Mother the sole managing 

conservator of the child and ordered Father to pay child support as the non-custodial parent. Our 

own Court has previously rejected an attack on the February 14, 2007 order that gave custody to 

Mother and made her the recipient of child support, and not the payor of child support. In re A.M., 

351 S.W.3d 395, 396 (Tex. App.—El Paso 2011, no pet.). In that case, Father had pursued a bill 

of review seeking to set aside the February 14, 2007 order, based on a lack of service of process

for the modification proceeding. We rejected his claim because his attorney made an appearance

at a hearing to quash the service of process, which meant that under Rule 122, he was deemed to 

have appeared twenty days later. Id. at 398, citing to TEX. R. CIV. P. 122. Similar to a trial court, 

we are permitted to take notice of our own records in certain circumstances. See In re J.G.W., 54 

S.W.3d 826, 833 (Tex. App.—Texarkana 2001, no pet.) (“An appellate court may take judicial 

notice of its own records in the same or related proceeding involving the same or nearly the same 

parties.”).

The docket sheet shows Mother filed a modification of the parent child relationship on 

March 17, 2005, a temporary restraining order was entered, and subsequent temporary orders were 

entered. Mother asserted A.S.M. had been in Mother’s custody with an order of child support 
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against Father since March 17, 2005 and that Father was not even allowed contact with A.S.M. 

after February 2007, which Father did not contest. These facts and subsequent orders belie any 

claim that Father has for child support after March 2005. Cf. Comeaux v. Comeaux, 767 S.W.2d 

500, 502 (Tex. App.—Beaumont 1989, no writ) (stating a modification order designating the 

obligor parent as the child’s managing conservator ends the prior child support obligation). And 

Appellant’s argument below and on appeal to overcome those prior orders are unavailing. At the 

hearing below, Father claimed that the April 2005 and February 2007 orders grew out of Mother’s 

SAPCR pleading, when in fact she should have filed a motion to modify the October 2004 original 

divorce decree. As such, he claims those orders are void. But as the trial court noted below, the 

title of a motion is less important than its substance, and it was treated as a motion to modify.4See

TEX. R. CIV. P. 71 (“When a party has mistakenly designated any plea or pleading, the court, if 

justice so requires, shall treat the plea or pleading as if it had been properly designated.”). Second, 

Father contends that because the trial court did not award Mother any back child support in 2007, 

he necessarily found against her on that issue. But the record of the hearing reveals the trial court 

did not award Mother back child support because she did not prove its amount, and the judge 

invited Mother to make that claim in another proceeding.5

In light of these orders, Appellant could only fall back on a child support claim for the brief 

period between November 2004 and March 2005.6 Even as to that claim, he has not brought 

forward a record that shows the result would be any different if we remanded this matter. He has 

4

In fact, the docket sheet describes the March 17, 2005 filing as a “Motion to Modify P/C Relationship.”

5 At the conclusion of the hearing, the trial judge stated: “Ms. Ness, I don't believe there was any testimony regarding 

child support arrearage was presented. You can take that up at a different hearing.”

6 By our calculations, five months of child support would amount to $800 and the insurance payments $90.
9

no evidence of record to show that he is owed any unpaid child support. He never testified to that 

fact, either at a hearing or through affidavit. Post-briefing he brought forward a supplemental 

transcript that includes a “Financial Activity Report” from the Texas Attorney General’s Office 

that purports to show that Mother owes Father $6,223.60 in unpaid child support based on missed 

payments from January 1, 2004 through November 30, 2020.

7 The same report, however, on its 

face assumes Father is the custodial parent and Mother is the non-custodial parent. But as we note 

above, the orders in the court’s file show that assumption is incorrect since at least April of 2005.

Moreover, one of the exhibits that Father sought to introduce in the hearing below—a hearing 

transcript—contains representations from an assistant attorney general that the Financial Activity 

Report from the AG is incorrect. Accordingly, there is no documentary evidence in the record that 

demonstrates Mother owes Father any back child support, which is the core of the claim being 

asserted.

Moreover, even if remanded, Appellant would still have to overcome the affirmative 

defense of res judicata upon which Mother has certainly asserted. Mother argued that any valid 

claim Father may have had for child support owed to him should have been raised during the 2007 

trial; thus, a claim for any period before the hearing was barred by res judicata. Because the 2007 

modification order superseded the 2004 divorce decree to the extent of the support ordered from 

the date of its signing, the trial court no longer had jurisdiction to enforce the 2004 decree. See In 

7 The Notice of Appeal in this case was filed on August 30, 2019. Father’s brief was filed January 30, 2020, and 

Mother’s on July 28, 2020. The pleading that Father included in the supplemental transcript was not filed with the El 

Paso District Clerk until December 29, 2020. The parties may supplement the clerk’s record with a relevant item 

omitted from the clerk’s record. TEX. R. APP. P. 34.5(c)(1). Of course, this pleading was not in the clerk’s record at 

the time the record was prepared and filed, which begs the question of how it could have been “omitted” at that time.

We need not decide that question, however, because even if the parties have great latitude to include supplemental 

items in the Clerk’s Record, it is still up to this Court whether to consider them. See Roventini v. Ocular Scis., Inc., 

111 S.W.3d 719, 726 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (allowing party to file supplemental clerk’s 

record, but declining to find it relevant to the issue before the court). For the reasons stated in our opinion, we accord 

no weight to the pleading included in the supplemental transcript.
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re Stenson, No. 14-06-00094-CV, 2006 WL 1331147, at *3 (Tex. App.—Houston [14th Dist.] 

2006, no pet.) (mem. op.) (holding a superseded decree was no longer of any force and effect once 

a new order was signed). That is to say, Father’s claims of missed payments for the period of 

November 2004 through March 2005 could have and should have been litigated during the 2007 

modification hearing, or during any of the enforcement hearings that followed the 2007 order. See 

In re M.K.R., 216 S.W.3d 58, 66 (Tex. App.—Fort Worth 2007, no pet.) (holding previous order 

granting child support arrearage was a final order subject to res judicata barring mother from 

raising claims of missed payments that could have been brought in the original motion for 

contempt). Multiple enforcement actions and repeated litigation covering the same time period of 

missed payments are not permitted. Id. Nothing in Father’s briefing convinces us that he can 

overcome this defense.

We do not overlook Father’s Issue Five where he contends that Mother’s counsel judicially

admitted at the hearing below that child support was owed to him for the period between October 

2004 and February 2007. But based on the record, we disagree. Mother’s counsel at the hearing 

argued: “So, if you look at their motion, Judge, to modify, best-case scenario, November of 2004

through April of 2005 would have been what he was entitled to in retroactive.” Counsel’s statement 

could only be considered a judicial admission if it was: (1) a statement made during the course of 

a judicial proceeding; (2) that is contrary to an essential fact or defense asserted by the person 

making the admission; (3) that is deliberate, clear, and unequivocal; (4) that, if given conclusive 

effect, would be consistent with public policy; and (5) that is not destructive of the opposing party's 

theory of recovery. In re Dillard Dept. Stores, Inc., 181 S.W.3d 370, 376 (Tex. App.—El Paso 

2005, orig. proceeding). Given that Mother’s counsel was arguing that she has a legal defense—

res judicata and collateral estoppel—to the entire claim, we fail to see that this statement qualifies 
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as a clear and unequivocal admission that some amount was indisputably owed.

From our review of the record, Father has not demonstrated that the trial court rendered an 

improper judgment. The record established as a matter of law that any claim for arrearage after 

April 2005 was demonstrably false under the prior orders of the trial court. The argument to 

overcome those orders is unavailing. And any amount owed before that time has not been proven.

We thus hold that any procedural error by the trial court in entering a dismissal order as opposed 

to a take-nothing summary judgment did not result in an improper judgment against Father. See

TEX. R. APP. P. 44.1 (appellate court cannot reverse the judgment of the trial court based on a 

procedural error unless the appellant demonstrates the error caused the rendition of an improper 

judgment or prevented the appellant from properly presenting the case to the court of appeals); see 

also In re K.B.S., 172 S.W.3d 152, 155 (Tex. App.—Beaumont 2005, pet. denied) (affirming the 

trial court’s dismissal of father’s suit on the grounds of limitations, an affirmative defense that 

should be brought in a motion for summary judgment, as the record reflected the statutory period 

had ended prior to filing of father’s suit).

Accordingly, we overrule Father’s first, second, third, fourth and fifth issues.

B. Procedural Due Process

In Father’s sixth issue, he asserts he was denied procedural due process under the 

Fourteenth Amendment Due Process Clause when the trial court did not allow Father to present 

evidence in support of his motion. Father asserts the trial court “shut down” his request to confirm 

arrearage and the trial court did not allow him to present evidence. He asserts he was denied 

procedural due process because it “resulted in a fundamentally unfair legal proceeding.”

Determining whether procedural due process has been denied is a two-step process in 

which we look at whether the complaining party has a liberty or property interest entitled to 
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protection and if so, what process is due. Velez v. Mitsak, 89 S.W.3d 73, 83 (Tex. App.—El Paso 

2002, no pet.). “At a minimum, due process requires notice and an opportunity to be heard at a 

meaningful time and meaningful manner.” Martinez v. Texas Dep’t of Protective & Regulatory 

Services, 116 S.W.3d 266, 271 (Tex. App.—El Paso 2003, pet. denied) (citing Mathews v. 

Eldridge, 424 U.S. 319, 333 (1976)).

Here, there was no failure to give Father notice and opportunity to be heard as he initiated 

the suit. Father was also given notice of the dismissal hearing, appeared through counsel, and was 

given an opportunity to be heard. At the motion to dismiss hearing, Father sought to introduce into 

evidence the transcript from the 2007 hearing to show that what was characterized as a motion to 

modify hearing did not correspond with the original pleading filed by Mother, and he was entitled 

to at least two and one-half years of child support. Father also sought to introduce into evidence a 

transcript from a 2010 hearing to show the attorney general’s confusion regarding the current child 

support order. Mother’s counsel objected to the admission of transcripts of past hearings arguing

they were irrelevant and barred by res judicata. Mother asserted Father had previously filed a bill 

or review regarding the 2007 order that was denied. Ultimately, the trial court sustained Mother’s 

objection to the transcripts and did not admit them into evidence. Father then moved to enter the 

two transcripts through a bill of exceptions and they were so admitted.

Father does not guide us to any authority to establish the trial court violated Father’s 

procedural due process. See TEX. R. APP. P. 38.1. (“[Appellant’s] brief must contain a clear and 

concise argument for the contentions made, with appropriate citations to authorities and to the 

record.”). Furthermore, Father’s complaint that the trial court erred in dismissing his request for 

confirmation of child support arrears has already been addressed. Without further guidance from 

Father, we do not find the trial court denied him procedural due process.
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Accordingly, Father’s sixth issue is overruled.

C. Attorney’s Fees

In his final issue, Father asserts the trial court abused its discretion in awarding attorney’s 

fees to Mother as additional child support. The trial court granted Mother’s request for attorney’s 

fees and identified it as additional child support in its oral rendition. The written order dismissing 

Father’s motion states Mother was awarded attorney’s fees and stated, “attorney’s fees, expenses 

and costs which were incurred in relation to the child, are in the nature of child support, and 

enforceable as such.” Father’s sole contention on appeal regarding the award of attorney’s fees is 

the court’s characterization of the award as additional child support. Accordingly, we only address 

whether the characterization as additional child support was erroneous.

An award of attorney’s fees in the nature of child support is a legal conclusion we review 

de novo. In re K.J.D., 299 S.W.3d 517, 518 (Tex. App.—Dallas 2009, no pet.). The Texas 

Legislature has distinguished between attorney’s fees awarded in modification suits and those 

awarded in a child support enforcement action. TEX. FAM. CODE ANN. §§ 106.002, 156.101

(Modification of Conservatorship) 157.167(a) (Enforcement). In suits affecting the parent child 

relationship, a trial court has the discretion to order reasonable attorney’s fees and to order the fees 

to be collected by any means available for enforcement of a judgment for debt. Tucker v. Thomas, 

419 S.W.3d 292, 297 (Tex. 2013). In contrast, when the trial court awards attorney’s fees in a suit 

involving child support enforcement, it may order such fees as additional child support which may 

be enforced by contempt. Id. at 296-97. In non-enforcement suits, the Texas Family Code does not 

authorize the trial court to characterize attorney’s fees as additional child support capable of being 

enforced with the court’s contempt powers. Id.

Here, Father’s motion to confirm arrearage may be viewed as an enforcement action, which 
14

would typically allow for an award of attorney’s fees as additional child support. Id.; see also TEX.

FAM. CODE ANN. § 157.167; see also In Interest of J.S., No. 14-17-00024-CV, 2018 WL 830891, 

at *2-3 (Tex. App.—Houston [14th Dist.] Feb. 13, 2018, no pet.) (mem. op.) (holding the trial 

court did not abuse its discretion in awarding mother attorney’s fees in an action to confirm an 

arrearage). But, as we earlier determined, the record shows that Father based his action on a 

purported support order that was supplanted by an order modifying the previous order, which 

additionally appointed Mother as the sole managing conservator, prohibited Father from having 

any access to the child, and ordered Father to pay monthly support from that point forward. Mother 

requested attorney’s fees in her motion to dismiss. See TEX. FAM. CODE ANN. §§ 106.001 and .002.

Although Mother denied owing child support to Father in this suit, she did not otherwise seek 

enforcement of any portion of Father’s support obligation. The sole basis of Mother’s position in 

this suit remained in a defensive posture asserting that Father’s claims were barred by res judicata.

For these reasons, we do not find that the trial court awarded attorney’s fees to Mother based on

Father being a respondent of a motion to enforce a child support obligation. See TEX. FAM. CODE

ANN. § 157.167. We see no basis in law or fact supporting the award of attorney’s fees here as

being “in the nature of child support,” and thus, we conclude the trial court erred. Cf. Tucker, 419 

S.W.3d at 298.

We sustain Father’s seventh issue regarding the award of attorney’s fees to the extent that 

such fees were awarded to Mother as additional child support.

III. CONCLUSION

We modify the judgment of the trial court such that the attorney’s fees awarded to Mother 

be characterized as a judgment debt only, not as additional child support. Apart from modifying in 

part the award of attorney’s fees, we affirm the trial court’s order in all other respects.
15

JEFF ALLEY, Justice

July 30, 2021

Before Palafox, J., Alley, J., and Marion, C.J. (Ret.)

Marion, C.J. (Ret.), sitting by assignment