CLIFF AND LETICIA McKELVY v. STATE FARM LLOYDS, KINGDOM ASSOCIATES, INC., D/B/A SERVICEMASTER BAY AREA AND ROBERT LLORENTE--Appeal from 23rd District Court of Matagorda County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2008 » CLIFF AND LETICIA McKELVY v. STATE FARM LLOYDS, KINGDOM ASSOCIATES, INC., D/B/A SERVICEMASTER BAY AREA AND ROBERT LLORENTE--Appeal from 23rd District Court of Matagorda County

State: Texas

Court: Criminal Court of Appeals

Docket No: 13-08-00270-CV

Case Date: 11/06/2008

Plaintiff: CLIFF AND LETICIA McKELVY

Defendant: STATE FARM LLOYDS, KINGDOM ASSOCIATES, INC., D/B/A SERVICEMASTER BAY AREA AND ROBERT LLORENTE--Appe

Preview:In the Interest of J.M.R., A Child--Appeal from 73rd
Judicial District Court of Bexar County
MEMORANDUM OPINION
No. 04-03-00284-CV
In the Interest of J.M.R.
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 1971-FC-240, 445
Honorable John J. Specia, Jr., Judge Presiding
Opinion by: Paul W. Green, Justice
Sitting: Alma L. L pez, Chief Justice
Paul W. Green, Justice
Karen Angelini, Justice
Delivered and Filed: June 23, 2004
AFFIRMED
This case arises from a dispute over child support. Appellant Raoul Rico and appellee Aurora Garcia were divorced in
January of 1972. The trial court ordered Rico to pay child support in the amount of $80 a month, from February 1,
1972 until August 7, 1986. In July of 2000, Garcia filed a notice of application for judicial writ of withholding, seeking
to obtain unpaid child support payments from Rico. Rico failed to respond, and the writ issued against him on July 31,
2000. In December of 2000, Rico filed a motion to terminate the writ. Garcia subsequently filed a motion for
cumulative judgment on the issue of past due child support. Following a hearing, the court granted Garcia's motion,
finding Rico to owe child support in the total amount of $113, 656.37. (1) The court also denied Rico's motion to
terminate the writ. He now appeals this finding in one issue.
Because the issue in this appeal involves the application of well-settled principles of law, we affirm the trial court's
judgment in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:
In his sole issue, Rico claims the trial court erred in failing to apply the ten-year dormancy statute under sections
31.006, and 34.001 of the Texas Civil Practices and Remedies Code. Under these statutes, a judgment becomes
dormant if a writ of execution is not issued within ten years of the judgment's rendition. Tex. Civ. Prac. & Rem. Code
34.001(a)(Vernon 2003). The Code also states that a dormant judgment may not be revived by an action of debt
brought after the second anniversary of the date the judgment becomes dormant. Tex. Civ. Prac. & Rem. Code Ann.
31.006(Vernon 2003).
In support of his argument, Rico relies on Texas Family Code section14.41, as well as the Texas Supreme Court case
of Huff v. Huff, 648 S.W.2d 286 (Tex. 1983). In Huff, the Court held that an action to enforce an order of child
support came within the direct purview of the statute of limitations governing the revival and enforcement of
judgments. Huff, 648 S.W.2d at 289; In re T.L.K., 90 S.W.3d 833, 837 (Tex. App.--San Antonio 2002, no pet.). The
Texas Legislature subsequently amended the Family Code, codifying the court's ruling and enacting a statutory ten-
year provision: "The court may not enter a judgment for unpaid child support payments that were due and owing more
than 10 years before the filing of the motion to render judgment under this section." Tex. Fam. Code Ann.
14.41(b)(Vernon Supp. 1994 ); In re T.L.K., 90 S.W.3d at 837-38.
However, the Legislature amended the applicable statute again in 1995, recodifying section 14.41(a) as section 157.263
and section 14.41(b) as section 157.005(b) and removing the ten-year limitation. Tex. Fam. Code Ann. 157.005,
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157.263 (Vernon 2003). The current version of section 157.263 provides:
157.263 Confirmation of Arrearages
(a) If a motion for enforcement of child support requests a money judgment for arrearages, the court shall confirm the
amount of arrearages and render one cumulative money judgment.
(b) A cumulative money judgment includes:
(1) unpaid child support not previously confirmed. . .
(3) interest on the arrearages; and
(4) a statement that it is a cumulative judgment. Id. at 157.263.
The current version (2) of section 157.005(b) reads:
(b) The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-
due child support until the date all current child support and medical support and child support arrearages, including
interest and applicable fees and costs, have been paid. Id. at 157.005(b).
Under the Family Code provisions as modified, the Civil Practices and Remedies Code dormancy statutes are
inapplicable to this case. The trial court retained its jurisdiction over Rico's case because all child support payments
had not been made. Id. Under the current version of the Family Code, the court was permitted to confirm the amount
of arrearages with a cumulative money judgment. Id. at 157.263. Sections 31.006 and 34.001, then, would apply only
to the trial court's 2002 cumulative money judgment and not to the 1972 original divorce judgment. See In re T.L.K.,
90 S.W.3d at 837-39 (finding that the ten-year dormancy period does not run from the child support payment's due
date); In re Kuykendall, 957 S.W.2d 907, 910 (Tex. App.--Texarkana 1997, no pet.)(holding that "the ten-year
dormancy period begins to run upon the signing of [the] judgment confirming arrearages, and not from the due date of
the individual payments); In re S.C.S., 48 S.W.3d 831, 835-36 (Tex. App.--Houston [14th Dist.] 2001, pet. denied).
Accordingly, we overrule Rico's only issue.
The judgment of the trial court is affirmed.
Paul W. Green, Justice
1. Rico was also ordered to pay 10% interest per year on the child support, as well as $10,000 in attorney's fees. The
trial court also mandated that Rico pay Garcia $7,500 in appellate attorney's fees if he chose to appeal the case.
2. Prior to a 1999 amendment, section 157.005(b) placed a limitation on the confirmation of child support arrearages,
confining the court's jurisdiction to four years after the child reached the age of 18. The 1999 amendment removed this
limitation.
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