In the Interest of A.L.G., A Child--Appeal from 166th Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-06-00178-CV
IN THE INTEREST OF A.L.G., A Child
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CI-02085
Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Dissenting opinion by: Rebecca Simmons, Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: May 23, 2007

 

Although I concur in the reversal of the trial court's judgment, I must respectively dissent with the disposition of this case.

Like the majority, I am perplexed by the trial court's award of one-half of the amount Chambless claimed was owed. However, I disagree with the majority that such an award implies the trial court found a verbal agreement existed between Gottfried and Chambless authorizing Gottfried to pay the $460 per month in child support directly to their daughter's daycare. This proposed implied finding is inconsistent with the judgment, rendered by the trial court, which failed to award to Chambless the undisputed amount of $6566.00 Gottfried paid the day care. "Inherent in the concept of implying findings in support of the judgment is that any such findings must be consistent with the judgment." Anderson Mill Mun. Utility Dist. v. Robbins, No. 03-04-00369-CV, 2005 WL 2170355, at *6 (Tex. App.--Austin, Sept. 8, 2005, no pet.). The reason for reversal in this case is that the judgment cannot be reconciled with the evidence. There were only two choices based on the evidence before the court. Either there was an agreement or there was not. When the trial court awarded one-half the sum, she failed to find an agreement and stated both parties "were responsible."

My chief objection with the majority, however, rests in the disposition of this case. Having found that the trial court abused its discretion, the majority renders a take nothing judgment. Such a disposition requires a holding that Gottfried conclusively established his affirmative defense of estoppel. In other words, the evidence in support of estoppel was so strong that reasonable minds could draw only one conclusion from the evidence. LaRue v. LaRue, 832 S.W.2d 387, 392 (Tex. App.--Tyler 1992, no writ). The record does not support such a holding.

Gottfried bore the burden of proving his affirmative defense of estoppel. Five elements are necessary in order to assert estoppel successfully: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) to a party without knowledge or the means of knowledge, of those facts; (4) with the intention that it should be acted on; and (5) the party to whom it was made must have relied or acted on it to his prejudice. In re M.W.T., 12 S.W.3d 598, 603 (Tex. App.--San Antonio 2000, pet. denied). Although estoppel or quasi-estoppel principles may apply to the facts in this case, the evidence is not conclusive. There is no implied finding that an agreement existed between the parties and we cannot substitute our judgment for that of the fact finder. The fact Chambless did not complain that Gottfried paid the day care, rather than Chambless directly, does not conclusively establish quasi-estoppel. The child support order in place specifically ordered the child support payments be paid to Chambless. There is no conclusive evidence Chambless affirmatively misled Gottfried. See id. at 603 (holding estoppel principles inapplicable in this retroactive child support case when father had duty of support). For these reasons I would remand the case to the trial court for further proceedings.

 

Rebecca Simmons, Justice