Monday, December 3, 2007

Mexican divorce decree, foreign judgment, In the Intereest of C.S. and C.S., Children
04-06-00681-CV (Tex.App.- San Antonio, Nov. 28, 2007)(Opinion by Justice Simmons)(enforcement of foreign divorce judgment) (Before Justices Stone, Angelini and Simmons)
Disposition: AFFIRMED IN PART/REVERSED & REMANDED IN PART:
Trial Court No. 2005-CVG-001601-D4
Honorable Oscar J. Hale, Jr., Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Justice
Karen Angelini, Justice
Rebecca Simmons, Justice

Delivered and Filed: November 28, 2007

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

This appeal arises as a result of the registration of a foreign divorce decree and a motion to enforce child support filed by Appellee Maria De Lourdes Benavides (“Benavides”). The trial court rendered a judgment in favor of Benavides and awarded sums for child support arrearages, prejudgment interest, and attorney’s fees. In five issues, Appellant Juan Carlos Sanchez (“Sanchez”) claims that the trial court erred in (1) modifying the foreign divorce decree by establishing a monthly child support amount in U.S. Dollars; (2) finding that the total arrearage in child support was $62,000.00 when there was insufficient evidence; (3) enforcing the miscellaneous costs provision of the decree by a judgment for contempt; (4) assessing the tutoring classes as an expense in addition to the monthly child support amount; and (5) hearing the lawsuit when it lacked subject matter jurisdiction. Because the trial court erred in determining that the tutoring costs were not part of the monthly child support amount, we reverse in part and remand this cause to the trial court for further proceedings consistent with this opinion. We overrule Sanchez’s remaining issues and, in all other respects, affirm the judgment of the trial court.

Background

On October 16, 1998, Sanchez and Benavides were divorced in Nuevo Leon, Mexico. Under the divorce decree (“Foreign Decree”), Sanchez was required to pay monthly child support in the amount of $15,700.00 Mexican Pesos or its equivalent in U.S. Dollars as well as additional amounts for expenses such as vacation trips, schooling materials, and medical expenses.
Benavides alleges that, after December of 2002, and for a period of 19 months, Sanchez failed to pay the child support and additional costs as required under the Foreign Decree. In an effort to resolve the alleged arrearage, Sanchez and Benavides entered into a written agreement on November 23, 2004. Sanchez agreed to transfer his interest and equity in a home in Webb County to Benavides and title to a 1999 Mercedes automobile. In return, Benavides would release the alleged delinquency of $62,000.00 dollars.
Thereafter, Sanchez allegedly failed to pay the child support and additional costs accruing after the settlement agreement. On November 4, 2005, Benavides registered the Foreign Decree and filed a motion to enforce child support. Following a bench trial, on December 14, 2005, the trial court rendered judgment for Benavides in the amount of $69,926.79, finding that the written agreement, dated November 23, 2004, failed for lack of consideration. The court also awarded prejudgment interest of $7,965.00, and attorney’s fees of $5,000.00. This appeal ensued.
Trial Court’s Authority to Modify Decree

In his first issue on appeal, Sanchez asserts that the trial court erred in modifying the Foreign Decree. Sanchez complains that:
by ordering him to pay an arrearage amount based on $1,800.00, an amount which may be in excess of or less than what the issuing Court ordered[,] is tantamount to a modification of the Mexican decree . . . contrary to Section(s) 159.205 and 159.604 of the Texas Family Code.

Benavides claims that Sanchez failed to object to the trial court’s conversion of the $15,700.00 pesos per month figure to $1,800.00 dollars and thus has not preserved error on this issue. We agree.
Initially, Sanchez questioned the trial court’s authority to establish an exchange rate on a foreign divorce decree. In response to Sanchez’s argument, the trial court suggested that it would make a finding that the arrearages were based on a monthly amount of $1,800.00 dollars instead of a change to the decree. Sanchez stated “That’s fine.” Thus, with respect to the trial court’s authority to establish an exchange rate on a foreign decree or make any modification, Sanchez has failed to show that he preserved such error. Tex. R. App. P. 33.1. To the extent that Sanchez is asserting that there is factually insufficient evidence to support the trial court’s finding, we disagree with Sanchez as discussed below. We overrule Sanchez’s issue number one.
Total Child Support Arrearage

We next address issues two and four considering both revolve around the child support arrearage amount. We begin with issue number four.
In his fourth issue, Sanchez asserts that the trial court erred in assessing the costs for tutoring classes as an expense in addition to child support. Sanchez argues that the decree specifically included costs of tutoring as part of child support and therefore, the expense of $4,000.00 for tutoring should not be in addition to child support. We interpret Sanchez’s argument to mean that the trial court erred as a matter of law when it concluded that the $4,000.00 in tutoring expenses were in addition to the monthly child support amount of $1,800.00. In support of his argument, Sanchez directs us to the Foreign Decree.
Benavides testified that there were 19 months of child support in arrears at $1,800.00 per month. Further, she testified that the remaining balance of $26,900.00 was due to a number of miscellaneous expenses including the $4,000.00 in tutoring expense that she claimed was in addition to the monthly child support amount of $1,800.00.
Clause Two of the Foreign Decree provides:
Juan Carlos Sanchez Hernandez states that in relation to the Child Support which will be under his responsibility, and for reason (Page 3 Original Document) of complying with the law, he promises to pay as Child Support for his minor children Carlos Andres and Carolina Sanchez Galvan, as well as in favor of Maria de Lourdes Galvan Garza, the amount of $15,700.00 (Fifteen Thousand Seven Hundred Mexican Pesos) or it[s] equivalent in U.S. Dollars; the child support which is previously referred to includes among other things the following: payment of utilities . . . private tutors to compliment the education of the minor children . . . .

(emphasis added)

Despite Clause Two, Benavides contends that the decree also contemplated additional educational expenses, which could include tutoring expenses. Clause Five of the decree states:
apart from the money payments established previously in the preceding clauses which he promises to make relative to Child Support payment pertaining to his minor children and payment made to [Benavides], he also promises and assumes the legal obligation of any necessary expense which is related to . . . education, . . . schooling materials and any other expenses which is related to the education of the referred to minor children . . . .

Clauses Two and Five are our focus in determining whether the tutoring expense is part of the child support as defined in Clause Two or as additional child support as defined in Clause Five.
As a general rule of construction, the specific language of an instrument controls over its general terms. O’Connor v. O’Connor, 694 S.W.2d 152, 155 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.). Clause Two specifically included the payment of private tutoring as part of the monthly child support of $15,700.00 Mexican Pesos or its equivalent in U.S. Dollars. In comparison, Clause Five included the payment for any necessary expenses which related to education. Because Clause Two specifically included the cost of private tutoring, we must conclude that it controlled over Clause Five. As a result, the trial court erred as a matter of law in concluding that the tutoring expense was in addition to the monthly child support amount of $1,800.00 and an additional $4,000.00 was owed in child support. We sustain Sanchez’s issue number four.
In issue number two, Sanchez states that there was insufficient evidence to support the finding of $62,000 as child support arrearage. “A trial court’s findings of fact are reviewed for factual sufficiency of the evidence under the same legal standards as applied to review jury verdicts for factual sufficiency of the evidence.” Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Having sustained issue number four, we review the factual sufficiency of the evidence as to the remaining balance of the expenses.
A review of the factual sufficiency of the evidence requires this court to consider, weigh, and examine all of the evidence in the record. Id. An appellate court may set aside the finding only if the evidence that supports the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Id.
The parties appear to agree that child support was past due for a period of 19 months. Benavides testified that there was a total of $35,100.00 past due in child support. Benavides further stated that Sanchez and she understood that $1,800.00 was the monthly amount due as evidenced by past deposits. The previous agreement, which was notarized and signed by Sanchez and Benavides, states the monthly amount of child support based on the Foreign Decree, is $1,800.00 dollars. Although the trial court found this agreement unenforceable for lack of consideration, this is some evidence to support the trial court’s finding that the monthly amount of the child support under the Foreign Decree was $1,800.00. As to the remaining balance, Benavides presented testimony, credit card statements, bank processed checks, and receipts to substantiate the additional costs as contemplated in the decree.
We are unable to conclude that the court’s finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. As a result, there is factually sufficient evidence to support the trial court’s finding that the child support arrearage was based on a monthly amount of $1,800.00 and the finding of the additional expenses making up the remaining balance other than the tutoring expense. We overrule Sanchez’s issue number two.
Enforcement by Contempt
In his third issue, Sanchez states “miscellaneous costs awarded, specifically clauses five and six ‘promised’ under the foreign decree, are not enforceable through a contempt action.” According to Sanchez, these clauses are too vague and ambiguous to be enforceable by contempt. Notably, the trial court did not enter an order of contempt and there is no objection or motion raising this argument before the trial court. Thus, Sanchez has failed to preserve this alleged error. Alternatively, even if Sanchez had preserved error, Sanchez has failed to show that Clauses Five and Six in the Foreign Decree were unenforceable.
We agree with Sanchez that “[t]o be enforceable by contempt, a decree must ‘set forth the terms of compliance in clear, specific and unambiguous terms so that the person charged with obeying the decree will readily know exactly what duties and obligations are imposed by him.’” Ex Parte Acker, 949 S.W.2d 314, 317 (Tex. 1997) (internal citations omitted). However, based on Benavides’s motion to enforce child support, the trial court rendered a judgment for child support arrearage.
A party seeking enforcement of a child support order “is not required to plead that the underlying order is enforceable by contempt to obtain other appropriate enforcement remedies.” Tex. Fam. Code Ann. § 157.002(d) (Vernon 2002). A child support order may be enforced through the rendition of a money judgment if it is sufficiently definite and certain. Villanueva v. Office of Attorney General, 935 S.W.2d 953, 955-56 (Tex. App.—San Antonio 1996, writ denied). An order that is unenforceable by contempt may be enforced by entering an arrearage judgment. Id.; see also Davis v. Mangan, No. 14-04-00650-CV, 2005 WL 1692048 *7 n.2 (Tex. App.—Houston [14th Dist.] July 21, 2005, no pet.) (“The judgment from which Davis appeals is not a judgment for contempt, and, thus, the terms of the underlying order are not subject to the heightened scrutiny required for orders of contempt.”).
Here, the trial court entered an arrearage judgment not a judgment for contempt. Sanchez does not contend that the “miscellaneous costs” provisions in the Foreign Decree are indefinite or uncertain to be unenforceable by a money judgment. Quite the contrary, in closing arguments, Sanchez’s counsel stated “[s]o I go back to the decree, you know. It’s very specific, and she agreed it was very specific.” Sanchez’s counsel further stated:
[he] does not have any problems in paying what he’s obligated under, under the decree; the miscellaneous expenses, which are the medical expenses, medical insurance, clothing, shoe wear, education, vacation trips, medication . . . . Obviously, he has no problem. He testified to that, you know . . . .

Sanchez has failed to show why the foreign decree, and in particular Clauses Five and Six, are unenforceable by a money judgment. We overrule Sanchez’s third issue.


Trial Court Lacked Subject Matter Jurisdiction
In his last issue, and raised only on appeal, Sanchez claims the trial court lacked subject-matter jurisdiction because Mexico or a foreign country does not fit the definition of a “state” under Chapter 159 of the Texas Family Code. More specifically, Sanchez argues that the trial court could not enforce the Foreign Decree issued by the tribunal in the State of Nuevo Leon, Mexico because neither Nuevo Leon nor Mexico is a state as defined in Section 159.102.
Section 159.603 of the Texas Family Code states “a registered order issued in another state is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” Tex. Fam. Code Ann. § 159.603 (Vernon 2002). In relevant part, Section 159.102 defines states as a foreign country or political subdivision that: (1) has been declared to be a foreign reciprocating country or political subdivision under federal law; (2) has established a reciprocal arrangement for child support with this state as provided by Section 159.308; or (3) has enacted a law or established procedures for issuance and enforcement of support orders that are substantially similar to the procedures under Chapter 159. Tex. Fam. Code Ann. § 159.102 (21)(B)(i)-(iii) (Vernon 2002).
Benavides directs us to the “Child Support Memorandum and Collaboration Arrangement Between Nuevo Leon, Mexico and The State of Texas, U.S.A.” This agreement was entered into “in order to establish mechanisms to allow reciprocal enforcement of child support obligation between both states.” The agreement was signed by the Governor and the Attorney General of the State of Texas and Nuevo Leon. Thus, Benavides has presented evidence to establish that there is a reciprocal arrangement for child support between Nuevo Leon, Mexico and the State of Texas as provided by Section 159.308. See In the Interest of V.L.C., 225 S.W.3d 221, 228 (Tex. App.—El Paso 2006, no pet.) (stating Section 159.308 “provides that Texas may enter into a reciprocal arrangement to recognize a foreign country or political subdivision in the absence of a federal reciprocal declaration”). We overrule Sanchez’s last issue.
Conclusion

We sustain Sanchez’s issue number four and reverse the trial court’s judgment in part and remand the case to the trial court for further proceedings consistent with this opinion. In all other respects, we affirm the judgment of the trial court.


Rebecca Simmons, Justice

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