ACCEPTED
01-15-00685-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/10/2015 2:07:45 PM
CHRISTOPHER PRINE
CLERK
No. _________________
In re Williams, § FILED
In the Court IN
of Appeals
1st COURT OF APPEALS
HOUSTON, TEXAS
§ First Judicial District
8/10/2015 2:07:45 PM
CHRISTOPHER A. PRINE
Clerk
Relator § Houston, Texas
Relator’s Motion for Emergency Temporary Relief
Relator asks this Court for emergency temporary relief to stay the trial court’s
order so the writ of income withholding may be reinstated pending the trial court
conducting an evidentiary hearing to determine the remaining balance on the
judgment for child support arrearages, attorney’s fees and court costs.
Introduction
Relator is Amy Williams, child support obligee. Respondent is the Honorable
Sheri Y. Dean, Judge of the 309th Judicial District Court of Harris County, Texas.
Real Party in Interest is Harold Holmes, child support obligor.
Amy files her Petition for Writ of Mandamus concurrently with this Motion for
Emergency Temporary Relief and incorporates the petition and its exhibits herein as
if recited verbatim. Citations to an item in the appendix may be found in the appendix
to the Petition for Writ of Mandamus.
This Court may grant temporary relief pending its determination of an original
proceeding. Tex. R. App. P. 52.10(b).
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This emergency stay is necessary to preserve Amy’s vested child support rights
which were previously affirmed by this Court, to maintain the status quo of the parties
and to preserve this Court’s jurisdiction to consider the mentis of the original
proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex. App.–San Antonio 1995, orig.
proceeding).
Amy attaches a certificate of compliance certifying that on August 10, 2015,
she notified Respondent and Obligor Holmes by email and/or fax that a motion for
temporary relief would be filed. Tex. R. App. P. 52.10(e).
Amy attaches the affidavit of her attorney to establish facts that are not
included in the appellate record and are not known to this Court in its official
capacity. Id. 10.2.
Facts Supporting Emergency Temporary Relief
On October 1, 2009, the trial court signed the Final Reformed Order
adjudicating Obligor Holmes’ total child support arrearages as of June 19, 2009, were
$55,486.78, comprising $49,934.70 in unpaid support, $5,000.00 in attorney’s fees,
$552.08 in court costs and conditional appellate fees of $3,000.00. (App. 1). Obligor
Holmes appealed that order. On May 19, 2011, this Court issued its opinion affirming
the trial court’s judgment. (App. 2). In its opinion, this Court stated the trial court
granted Amy a “Judgment for the total amount of child-support arrearages, including
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accrued interest, attorney fees and court costs.” Id. at 217. Pursuant to the judgment
granted by the trial court and affirmed by this Court, Amy issued a writ of income
withholding to collect child support, attorney’s fees and court costs.
On April 13, 2015, Obligor Holmes asked Respondent to terminate the writ of
income withholding even though his own pleadings admit the judgment entered on
October 1, 2009, and affirmed by the this Court on May 19, 2011, remains
unsatisfied. (App. 3). Obligor Holmes’ Third Supplemental Motion to Confirm Child
Support Arrearage and Terminate Income Withholding expressly admits he “now
owes $526.41” and admits he has never paid the court-ordered attorney’s fees and
costs this Court affirmed and that he owes under the Judgment. (App. 4, 5). Without
conducting a hearing or receiving evidence of any kind, Respondent granted Obligor
Holmes’ request and terminated the writ of withholding. (App. 8).
Amy has a vested child support right in the writ of income withholding and
monthly payments upon which she relies. Pursuant to the Texas Family Code, the writ
of income withholding remains effective until all child support, court-ordered
attorney’s fees and costs are paid. Tex. Fam. Code Ann. §158.102 (West 2014).
Because Obligor Holmes admittedly still owes “child support arrearages, interest, and
. . . ordered attorney’s fees and court costs,” Respondent had no authority to withdraw
the writ on July 28, 2015. Id.; In the Interest of T.L., 316 S.W.3d 78, 88 (Tex.
Page 3 of 13
App.–Houston [14th Dist.] 2010, pet. denied).
This is not the first time Obligor Holmes has sought to terminate or suspend the
writ of income withholding. While this case was originally on appeal, Obligor
Holmes filed a Motion to Suspend Judgment and for Remittitur, arguing the trial court
lacked jurisdiction to grant a judgment for child support arrearages, attorney’s fees
and court costs. This was a case of first impression and Justice Alcala initially agreed
and signed the Order Suspending Judgment on July 7, 2010. (App. 11).
Amy then filed a Motion to Reconsider in this Court, arguing the trial court did
have jurisdiction to grant a judgment for unpaid child support, attorney’s fees and
court costs and arguing the writ of income withholding should be reinstated and the
withheld funds should be deposited into the registry of the trial court until the
resolution of the appeal. On August 6, 2010, Justice Alcala signed the Order
withdrawing the Order Suspending Judgment, reinstating the writ of income
withholding and ordering that all withheld funds be deposited into the trial court’s
registry pending the resolution of the appeal. (App. 12).
The precedent Justice Alcala set in this case by withdrawing the Order
Suspending Judgment is incredibly important to this Motion for Emergency
Temporary Relief. Since the judgment was in force, as it is in this case, the only
appropriate solution was to order the withheld funds be deposited into the trial court’s
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registry. Even when this Court thought the trial court may have lacked jurisdiction to
grant a child support arrearage judgment–which would essentially have meant
Obligor Holmes owed $0.00 in child support arrearages, attorney’s fees and court
costs–this Court still ordered the writ of income withholding continue and the
garnished wages be deposited in the registry.
Here, it is beyond dispute Obligor Holmes has not satisfied the child support
arrearage, court ordered attorney’s fees and costs. (App. 4, 5, 7, 8). Therefore, if this
Court thought it was improper to terminate the writ of income withholding when it
questioned, but ultimately affirmed, the trial court’s jurisdiction to award child
support arrearages, attorney’s fees and costs, then it is without a doubt improper to
terminate the writ of income withholding when Obligor Holmes admits he has not
fully paid the child support arrearage, court-ordered attorney’s fees and costs.
Necessity for Emergency Temporary Relief
The necessity for this Motion for Emergency Temporary Relief stems from
Respondent’s order terminating the writ of income withholding. On July 28, 2015,
both parties’ motions were set for a hearing to determine the remaining balance of the
unpaid judgment for child support arrearages, attorney’s fees and court costs. (App.
8). After the call of the docket, all counsel in our case were called to the bench for an
off-the-record conference with the lawyers only. Id. Respondent advised us she would
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not be able to hear any of the matters before the trial court in our case and the case
would have to be reset to October 2, 2015. Id.
During the bench conference, Obligor Holmes’ counsel stated to the trial court
it was her belief the arrearages for monthly periodic support only would be overpaid
by the reset date. Id. No evidence of any kind was taken by Respondent or offered by
Obligor Holmes. Id. Obligor Holmes’ counsel then asked Respondent to withdraw the
writ of income withholding that had been issued pursuant to the judgment entered on
October 1, 2009, and affirmed by this Court on May 19, 2011. Id. The writ of income
withholding was a vested child support right of Amy. Without the introduction of any
evidence and without conducting a hearing, Respondent terminated the writ of
income withholding until October 2, 2015. Id. The monthly support that Amy had
been receiving and counted on for six years vanished. It is imperative the writ of
income withholding be immediately reinstated as Obligor Holmes’ next two paydays
are August 15 and September 1, 2015.
On July 29, 2015, Amy filed a Motion to Deny Entry of Order and Motion to
Reconsider Withdrawal of Writ of Income Withholding requesting that her motion be
set before the entry of any order. (App. 9). Respondent did not do so. On July 31,
2015, without notice, the form ordering withdrawal of the writ of income withholding
was signed. (App. 10, 13). No evidence of any kind was presented by the Obligor
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Holmes before the writ was terminated nor did Respondent conduct a hearing. (App.
8). Respondent has not set a hearing on the motion to reconsider.
The writ of income withholding was Amy’s vested child support right affirmed
by this Court and Respondent terminated it without the introduction of any evidence
and without conducting a hearing. This was improper. It is well-settled law a trial
court cannot limit the enforcement of a child support judgment. In re Dryden, 52
S.W.3d 257, 263 (Tex. App.–Corpus Christi 2001, no pet.). Further, it is well-settled
law a writ of income withholding to enforce a judgment for child support arrears
and/or a child support lien to enforce a judgment on arrears cannot be withdrawn by
the trial court unless and until there is an evidentiary hearing determining that no
further sums are owed pursuant to the judgment. In the Interest of T.L., 216 S.W.3d
at 88; In the Interest of C.D.E., No. 14-14-00086-CV; 2015 Tex. App. LEXIS 673,
*8-9 (Tex. App.–Houston [14th Dist.] January 27, 2015, no pet.); Tex. Fam. Code
Ann. §§157.318 (West 2014); 158.102.
Obligor Holmes’ live pleading–his Third Supplemental Motion to Confirm
Child Support Arrearage and Terminate Income Withholding–states he owes $526.41
in monthly periodic support and further admits the court-ordered attorney’s fees and
court costs that were affirmed by this Court were not included in his calculations.
(App. 5)(stating “Amount applied to attorney’s fees and costs: $0.00”). In her
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pleadings, Amy asserts the total amount unpaid on the judgment is $15,353.68 as of
May 27, 2015, which consists of monthly periodic child support arrearages in the
amount of $3,964.68 and arrearages for court-ordered attorney’s fees and court costs
in the amount of $11,389.00 (App. 7, Exhibit D). However, it is undisputed, and
Obligor Holmes’ live pleading admits, that each element of the judgment–i.e.,
monthly periodic child support, court-ordered attorney’s fees and court costs–remains
unpaid.
The Texas Family Code §158.102 unambiguously provides,
An order or writ of income withholding under this chapter may be issued
until all current support and child support arrearages, interest, and
any applicable fees and costs, including ordered attorney’s fees and
court costs, have been paid.
Tex. Fam. Code Ann. §158.102 (emphasis added). Nothing in this section nor any
other portion of the Family Code grants Respondent the power to eliminate the writ
of income withholding while Obligor Holmes admittedly still owes arrearages,
ordered attorney’s fees and costs. See id. §158.001 et seq.
Interpreting substantively identical language in Texas Family Code §157.318
regarding child support liens– providing “a lien is effective until all current support
and child support arrearages, including interest, any costs and reasonable
attorney’s fees . . . have been paid”–the Fourteenth Court of Appeals concluded a
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trial court could not terminate a child support lien because “the statute does not
provide an option authorizing the trial court to vacate or terminate a lien when
arrearages are due and owing.” In the Interest of C.D.E., 2015 Tex. App. LEXIS 673,
*8-9 (emphasis added). The same clearly holds true for a writ of income withholding,
which is an additional “enforcement” remedy under Chapter 158 and which contains
the exact same language. There exists no provision or right to terminate a writ of
income withholding when arrearages are owed. In the Interest of T.L., 316 S.W.3d at
88 (“[T]he mere fact of an obligor’s dispute–without a determination of arrearages in
his favor–does not invalidate the . . . writ” and it cannot be withdrawn until there is
evidence showing there are no arrearages owed).
As stated, Obligor Holmes’ Third Supplemental Motion to Confirm Child
Support Arrearage and Terminate Income Withholding expressly admits he “now
owes $526.41” and admits that he has never paid the court-ordered attorney’s fees
and costs that he owes under the Judgment. (App. 5). Because Obligor Holmes
admittedly still owes “child support arrearages, interest, and . . . ordered attorney’s
fees and court costs,” Respondent had no authority to withdraw the writ on July 28,
2015. Additionally, even Obligor Holmes’ live pleading suggests the payments on the
writ of income withholding should be placed in the registry of the trial court. (App.
4).
Page 9 of 13
Respondent deprived Amy of her vested child support rights and deprived her
of due process under the Constitutions of Texas and the United States by terminating
the writ of income withholding without conducting a hearing and without receiving
evidence. The writ of income withholding was entered pursuant to the trial court's
judgment and affirmed by this Court. The writ had been paying for six years. Amy
had a vested child support right in the writ of income withholding and the monthly
income on which she relied. She could not be constitutionally deprived of her vested
child support right without an evidentiary hearing. Eli Lilly Land Co. v. Marshall, 829
S.W.2d 157, 158 (Tex. 1992); Smith v. O’Neill, 813 S.W.2d 501, 502 (Tex. 1991).
This was a clear abuse of discretion for which there is no adequate remedy at law.
Respondent violated the Texas Family Code by terminating the writ of
withholding without conducting an evidentiary hearing to determine whether Obligor
Holmes has fully paid all child support arrearages, interest, attorney’s fees and court
costs. See, Tex. Fam. Code Ann. §158.102; In the Interest of T.L., 316 S.W.3d at 88.
Therefore, Amy has no option but to ask this Court for an emergency order for
Respondent to reinstate the writ of income withholding until the evidentiary hearing
is held to determine if child support arrearages, court-ordered attorney’s fees and
court costs remain unpaid. In the alternative, Amy requests this Court to order all
withheld funds be deposited into the trial court’s registry until an evidentiary hearing
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is held. As Amy argued five years ago to this Court, the wages and earnings of
Obligor Holmes for each pay period the writ is terminated will never again be able
to be captured by the writ and will result in a loss of funds that would otherwise be
available and applied to the unpaid child support arrearages. The same principle that
Justice Alcala applied in her ruling applies today. The writ of income withholding
should remain in place and Amy’s vested child support rights be preserved.
Conclusion
Respondent violated Amy’s due process rights and the Texas Family Code
when it terminated her vested right to enforce her judgment for child support
arrearages, attorney’s fees and court costs without conducting a hearing or receiving
evidence of any kind as to the amounts still owed under the judgment. Amy seeks
relief from this Court to reinstate the writ of income withholding until an evidentiary
hearing occurs or, in the alternative, to reinstate the writ and order all withheld funds
be deposited into the registry of the trial court until an evidentiary hearing is held and
the case is finally decided.
Prayer
For the reasons stated in this motion, Amy asks this Court for emergency
temporary relief to preserve her vested child support rights, maintain the status quo
of the parties and preserve the Court’s jurisdiction to consider the merits of her
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original proceeding. It is imperative the writ of income withholding be reinstated
because Obligor Holmes’ next two paydays are August 15 and September 1, 2015.
Respectfully submitted,
Sinkin Law Firm
105 West Woodlawn Avenue
San Antonio, Texas 78212
Telephone (210) 732-6000
Telecopier (210) 736-2777
By: /s/ Steven A. Sinkin
Steven A. Sinkin
State Bar No. 18438700
ssinkin@sinkinlaw.com
Andrew Ross
State Bar No. 24070529
aross@sinkinlaw.com
Stett Matthew Jacoby
State Bar No. 24041175
sjacoby@sinkinlaw.com
Attorneys for Relator, Amy Williams
Certificate of Compliance
Under Texas Rule of Appellate Procedure 52.10(a), I certify that on August 10, 2015,
I notified the Honorable Sheri Y. Dean of the 309th Judicial District Court of Harris
County, Texas, by calling her court and notifying her staff the motion for temporary
relief will be filed and by sending Judge Dean a copy by overnight mail. I also certify
that on August 10, 2015, I notified Harold Holmes that a motion for temporary relief
had been filed by fax and email.
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/s/ Steven A. Sinkin
Steven A. Sinkin
Honorable Sheri Y. Dean
Judge, 309th Judicial District Court of Harris County, Texas
201 Caroline, 16th Floor
Houston, Texas 77002
Respondent
via phone call and overnight mail
Lauren E. Waddell
Fullenweider Wilhite
4265 San Felipe Street, Suite 1400
Houston, Texas 77027
Attorney for Harold Holmes, Real Party in Interest
via fax and email
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in Re Amy Williams
Combined Opinion