Affirmed and Memorandum Opinion filed November 29, 2011.

In The

Fourteenth Court of Appeals 

___________________

NO. 14-10-00937-CV

___________________

RAYMOND C. HENNIGAR, Appellant

V.

SUSAN CUNNINGHAM, Appellee

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 1978-27379

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

Appellant Raymond C. Hennigar challenges the trial court’s judgment granting his 

former wife’s request for a lien and writ of withholding for past-due child support. 

Because the amount of the judgment is supported by the record and Hennigar’s remaining 

complaints have not been preserved, we affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Hennigar and appellee Susan Cunningham were married in 1972 and had a son two 

years later. They divorced in 1978, and the trial court appointed Cunningham managing 

conservator. Hennigar was ordered to pay child support of $100 per month, in two $50 
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installments, into the child-support division of Harris County Child Welfare. As of 

January 2010, the registry for that division had recorded no payments. 

On January 6, 2010, Cunningham filed a notice of child support lien and a notice of 

application for judicial writ of withholding. On January 21, 2010, acting pro se, Hennigar 

moved to vacate the lien and dismiss the action as time-barred. Cunningham responded 

by asking the trial court to foreclose on the lien, determine the amount of unpaid child 

support, and award attorney’s fees. An initial hearing before an associate judge was set 

for February 17, 2010. 

Twenty-five days before the hearing, Cunningham served interrogatories, a request 

for production of documents and a request for disclosure in which, among other things, she 

asked Hennigar to produce evidence of payment, to state the legal theories on which he 

would rely, and to identify persons with knowledge of relevant facts. Because the 

requests were served less than 30 days before the hearing, Hennigar did not respond.1 At 

the hearing, the associate judge ruled in Cunningham’s favor, granting her request for a 

lien and a writ of withholding and awarding her attorney’s fees and $108,442.66 in

past-due child support. 

Hennigar retained counsel and timely requested a de novo hearing before the 

referring court. In his initial request, he asserted that (1) he owed no child support because 

the State possessed no record of arrearages; (2) Cunningham’s claim was rendered 

dormant by statute, and a statutory amendment removing child support from the general 

dormancy provision was unconstitutional; (3) Cunningham’s claim was barred by the 

equitable defense of laches; (4) Cunningham’s notice of lien and the associate judge’s 

 

1

See TEX. R. CIV. P. 194.1–194.2 (requests for, inter alia, disclosure of legal theories and persons 

with knowledge of relevant facts must be served no later than 30 days before the end of any 

applicable discovery period), 196.1 (applying same rule to requests for production), 197.1 

(applying same rule to interrogatories); see id. 190.3(1)(A) (in cases under Family Code, discovery 

period ends 30 days before the date set for trial).
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order were defective; and (5) the Family Code’s lien-notice provision was 

unconstitutional. The de novo hearing was set for April 15, 2010. 

Twenty-three days before the scheduled hearing, Cunningham served an additional 

request for production and Hennigar responded that the request was untimely. The 

hearing was subsequently rescheduled to June 2, 2010. In the interim, Hennigar amended 

his request for de novo hearing twice, supplementing his constitutional arguments and 

requesting attorney’s fees. 

On the day of the de novo hearing, Cunningham filed a motion to exclude the 

evidence and witnesses that Hennigar had failed to identify in response to her requests.

Although Hennigar maintained that no answer was required because the discovery requests

were untimely, he nevertheless moved for an extension of time in which to answer the 

discovery, and he served his responses the same day. The court granted Cunningham's

motion and excluded the evidence and witnesses that Hennigar had failed to identify in 

response to Cunningham’s discovery requests. 

Cunningham also moved to strike the amended portions of the request for de novo 

hearing on the ground that such a request is analogous to a motion for new trial, and thus, 

the Family Code should be construed to permit amendments only within the seven-day 

period allotted for making the initial request. Compare TEX. FAM. CODE. ANN. §201.015 

(West 2008) (request must specify the issues that will be presented to the referring court 

and must be filed within seven days of the notice of the associate judge’s ruling) with TEX.

R. CIV. P. 329b(a) (motion for new trial must be made within thirty days of judgment) and

Moritz v. Preiss, 121 S.W.3d 715, 720–21 (Tex. 2003) (holding that amended motion for 

new trial must be filed within the same thirty days of judgment or it preserves nothing for 

review). The trial court sustained Cunningham’s motion to strike Hennigar’s 

amendments to his request for de novo hearing. 

At the de novo hearing, Cunningham testified that Hennigar had failed to make 

regular payments and that she sought $111,000.73. She offered three exhibits to prove 
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that Hennigar owed this amount. Exhibits A and B—the divorce decree and a copy of the 

Harris County child-support division registry showing no payments made—were admitted. 

Exhibit C was a chart showing Cunningham’s arrearage calculations; it included a list of all 

payments due under the child support order, notations of missed payments for some ten 

years that their son resided with Cunningham, and a combination of payments and 

possession credits for some four years that their son resided with Hennigar. It totaled the 

amount owed and applied interest calculations to arrive at a total of $111,395.55.

Cunningham’s request of $111,000.73 reflected this figure after ―credit[ing Hennigar] for 

. . . money that was levied from [Hennigar’s] bank account‖ since the associate judge’s 

ruling in February 2010. The trial court admitted Exhibit C ―as a shorthand rendition of 

[Cunningham’s] testimony.‖ On cross-examination, however, Cunningham testified that 

she did not remember the exact dates that Hennigar had made or missed payments, and 

Hennigar moved to strike Exhibit C because of Cunningham’s lack of personal knowledge

of the events it recorded. The trial court sustained his objection and excluded the exhibit. 

Cunningham’s counsel then testified as an expert witness that ―[w]hen Ms. Cunningham 

came and met with us, she specifically told us about the possession credit . . . [a]nd she also 

told us about dates and amounts, and those are reflected in this exhibit.‖ Hennigar 

successfully objected to this statement as hearsay. Shortly thereafter, however, 

Cunningham’s counsel ―reurge[d] . . . Exhibit C as a summary of the dates, and the 

payments, and the amounts due for the [c]ourt and the payments that [Cunningham] has 

been [sic] given credit for and the possession credit as an aid to the court.‖ The trial court 

admitted the portion of the chart showing ―those amounts that are due on the interest, 

but . . . disregard[ed] any payment portion as [Cunningham] could not testify to those.‖

After the de novo hearing, the trial court granted Cunningham’s request for a

child-support lien and writ of withholding for $111,000.73 in arrearages, plus attorney’s 

fees. Neither party requested findings of fact and conclusions of law.
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II. ISSUES PRESENTED

In three issues, Hennigar challenges the legal and factual sufficiency of the evidence 

and argues that the trial court reversibly erred in striking his amended request for a de novo 

hearing and excluding his witnesses.

III. ANALYSIS

A. Evidentiary Sufficiency

In his first issue, Hennigar argues that the evidence is legally and factually 

insufficient to support the judgment. We review a trial court’s adjudication of child

support for abuse of discretion. See In re A.L.S., 338 S.W.3d 59, 65 (Tex. App.—Houston 

[14th Dist.] 2011, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 

1990)). A trial court abuses its discretion when it acts without reference to any guiding 

rules or principles or when it fails to analyze or apply the law correctly. Walker v. Packer, 

827 S.W.2d 833, 840 (Tex. 1992). Under the abuse-of-discretion standard, sufficiency of 

the evidence is not an independent ground of error, but is a factor in assessing whether the 

trial court abused its discretion. A.L.S., 338 S.W.3d at 65; London v. London, 94 S.W.3d 

139, 143–44 (Tex. App.—Houston [14th Dist.] 2002, no pet.). When, as here, no findings 

of fact and conclusions of law were requested, we presume that the trial court made all 

findings necessary to support the judgment and will uphold those findings if supported by 

the record. A.L.S., 338 S.W.3d at 65 (citing Chenault v. Banks, 296 S.W.3d 186, 189 

(Tex. App.—Houston [14th Dist.] 2009, no pet.)). In calculating child-support arrearages, 

however, the trial court’s discretion is very limited. Id. Although the trial court can 

award certain offsets and credits, it has no discretion to forgive or decrease a past 

child-support obligation. Id. Thus, in a proceeding to confirm child-support arrearages, 

the trial court’s calculations must be based on the payment evidence presented. Id.

Although legal and factual insufficiency are not themselves bases for reversal in this 

case, we address them specifically because they are at the core of Hennigar’s argument that 
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the trial court abused its discretion. In an appeal of a judgment rendered after a bench 

trial, the trial court’s findings of fact have the same weight as a jury’s verdict, and we 

review the legal and factual sufficiency of the evidence to support them as we would 

review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In a 

legal sufficiency challenge, we examine the record in the light most favorable to the 

judgment and consider whether the evidence at trial would enable a reasonable and 

fair-minded factfinder to reach the verdict under review. See City of Keller v. Wilson, 168 

S.W.3d 802, 827 (Tex. 2005). We credit favorable evidence if a reasonable factfinder 

could, and disregard contrary evidence unless a reasonable factfinder could not. See id.

The evidence is legally sufficient unless (a) there is a complete absence of a vital fact; (b) 

the court is barred by rules of law or of evidence from giving weight to the only evidence 

offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a 

scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. Id. at 

810. The record contains more than a scintilla of evidence, and thus the evidence is 

legally sufficient, if reasonable minds could form differing conclusions about a vital fact’s 

existence. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782–83 (Tex. 2001). 

Conversely, the evidence is insufficient when the evidence offered to prove a vital fact is so 

weak as to do no more than create a mere surmise or suspicion of its existence. Ford 

Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). A judgment is factually

sufficient unless it is so against the great weight and preponderance of the evidence as to be 

clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175. 176 (Tex. 2004) (per curiam).

Hennigar challenges the legal sufficiency of the evidence on three bases. First, he

argues that there was a complete absence of evidence to support the amount of the trial 

court’s judgment. At trial, Cunningham testified that Hennigar failed to make regular 

payments and that she sought $111,000.73, a figure based on the total amount reflected in 

the admitted portion of Exhibit C. Hennigar claims that this figure was derived solely 

from the excluded portion of Exhibit C, which documents specific dates on which 

Hennigar allegedly missed or made payments and credits him with a combination of 
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payments and possession credits for the years that their son lived with him. He argues that 

when the trial court excluded that portion of the exhibit, it ―effectively removed the 

evidence necessary for the trial court to ascertain the amount, if any, of arrearages.‖ Thus, 

he claims, there was a complete absence of admissible evidence to support the judgment. 

This argument merges with Hennigar’s second asserted basis for legal insufficiency—that 

the trial court was barred by the rules of evidence from giving weight to the excluded 

portion of Exhibit C, which, as with respect to his first argument, he characterizes as the 

only evidence offered to prove how much he owed. Hennigar asserts that by basing its 

judgment on the admitted portion of Exhibit C—which sets forth the total amount owed in 

missed payments and calculates interest—the trial court necessarily relied upon the 

excluded portion of the exhibit, from which that total was derived. Hennigar also argues 

that the trial court was barred from considering the admitted portion of Exhibit C because it 

was supported only by Cunningham’s attorney’s statements that it accurately reflected the 

total amount owed—statements, Hennigar claims, that were inadmissible both as improper 

expert testimony and as hearsay. Thus, he argues, the trial court was barred by multiple 

rules of evidence from giving weight to the only evidence offered to prove how much he 

owed. He concludes that because the judgment depended solely upon inadmissible 

evidence—the excluded portion of Exhibit C and the statements by Cunningham’s attorney 

that the admitted portion was correct—the admissible evidence proving the amount he 

owed was no more than a scintilla. As to factual insufficiency, Hennigar argues that the 

judgment, by relying solely upon inadmissible evidence and disregarding his testimony 

that he made all required payments, was so against the great weight and preponderance of 

the evidence as to be clearly wrong and unjust. 

Hennigar assumes that the excluded part of Exhibit C was the sole evidence 

supporting the judgment; to sustain this assumption, he argues that all other evidence

supporting the judgment, such as Cunningham’s testimony and the admitted portion of 

Exhibit C, implicitly derived from the excluded portion of Exhibit C. He ignores the fact 

that—in addition to Cunningham’s own testimony—the divorce decree establishes the 
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dates on which Hennigar was obligated to make payments, and the Harris County 

child-support registry shows that he failed to make those payments in the manner required. 

Those two exhibits, together with a straightforward calculation of interest, would actually 

have been sufficient to establish that Hennigar owed more than the amount that 

Cunningham requested, which credits Hennigar with a combination of payments and 

possession credits for the approximately four years in which their son resided with him. 

Viewing the record in the light most favorable to the judgment, the evidence at trial 

was legally sufficient to support the judgment without resort to the excluded portion of 

Exhibit C. The judgment was also not so against the great weight and preponderance of 

the evidence as to be clearly wrong and unjust, and therefore was factually sufficient. 

Having rejected Hennigar’s challenges to the sufficiency of the evidence, we conclude that 

the trial court did not abuse its discretion. Accordingly, we overrule Hennigar’s first 

issue.

B. Amended Requests for De Novo Hearing

Hennigar next argues that the trial court erred in striking his amended requests for 

de novo hearing. In his initial request, he asserted that (1) he owes no child support 

because the State has no record of the arrearage; (2) Cunningham’s claim is rendered 

dormant by statute, and a statutory amendment removing claims for unpaid child support 

from the general dormancy provision is unconstitutional; (3) Cunningham’s claim is barred 

by the equitable defense of laches; (4) Cunningham’s lien notice and the associate judge’s 

order are defective; and (5) the Family Code’s lien-notice provision is unconstitutional. 

In his amended requests, he supplemented his constitutional arguments and requested 

attorney’s fees. At the de novo hearing, Cunningham moved to strike these amendments. 

Although her motion was sustained, Hennigar raised his additional constitutional issue in 

his closing argument without objection. 

The only two additions to Hennigar’s last amended request were the constitutional 

argument, which he actually argued to the court, and a request for attorney’s fees—which, 
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given the outcome of the case, was a moot point. There is thus no basis for Hennigar’s 

complaint. We therefore overrule his second issue.

C. Exclusion of Witnesses

Finally, Hennigar contends that the trial court erred in excluding ―evidence and 

witnesses‖ at the de novo hearing. He does not, however, identify what evidence was 

allegedly excluded. Cunningham served discovery requests asking Hennigar to, inter 

alia, produce evidence of payment, state the legal theories on which he would rely, and 

identify persons with knowledge of relevant facts. At the de novo hearing, Hennigar 

testified that he had paid in accordance with his obligations. He further testified that he 

had kept records of his payments for years but had discarded them after his son turned 

twenty. Thus, Hennigar did produce evidence of payment—his own testimony that he had 

paid. He was also permitted, in his closing argument, to state multiple legal theories on 

which he relied. The only testimony Hennigar specifically identifies on appeal as 

excluded is that of certain witnesses who had testified at his initial hearing before the 

associate judge. 

We will not reverse a judgment based on the exclusion of testimony unless (1) the 

trial court abused its discretion in excluding the evidence, and (2) the error probably 

resulted in an improper judgment. Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex. 

App.—Houston [14th Dist.] 2006, pet. denied). To preserve the complaint that the trial 

court reversibly erred in excluding a witness’s testimony, a litigant must make an offer of 

proof. Ludlow v. DeBerry, 959 S.W.2d 265, 270 (Tex. App.—Houston [14th Dist.] 1997, 

no pet.). Without evidence of the substance of the testimony, we cannot determine that 

the trial court reversibly erred in excluding it. Id. Hennigar failed to make an offer of 

proof, and as a result, there is nothing for us to review. Because we are unable to 

determine that the trial court reversibly erred, we overrule Hennigar’s third issue.

IV. CONCLUSION
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Having determined that the amount of the judgment is supported by the record and 

that Hennigar’s remaining complaints have not been preserved, we affirm the trial court’s 

judgment.

/s/ Justice Tracy Christopher

Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.