Stephen Cornell Fagan v. Kolona Geraldine Martin--Appeal from 18th District Court of Johnson County

AFFIRMED

JUNE 14, 1990

NO. 10-90-006-CV

Trial Court

# 8211-A

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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STEPHEN CORNELL FAGAN,

Appellant

v.

KOLONA GERALDINE MARTIN,

Appellee

* * * * * * * * * * * * *

From 18th Judicial District Court

Johnson County, Texas

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O P I N I O N

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This case involves an appeal from a money judgment for delinquent child support. On September 22, 1989, the trial court entered a judgment against Appellant Stephen Cornell Fagan in the net amount of $9,058.00 plus 10% interest in favor of Appellee Kolona Geraldine Fagan (Martin), payable through the office of the Attorney General of Texas.

From this judgment the Appellant comes to this court on three points of error.

By his first point of error, Appellant asserts the trial court did not have jurisdiction to enter judgment against the Appellant for child support arrearage since the petition was not filed within two years of the date the younger child became an adult.

The younger child, to-wit, Nikkie Lavon Fagan, became 18 years old on October 23, 1986. On April 20, 1989, the Attorney General filed suit for a money judgment in behalf of Appellee. The money judgment appealed from is dated September 22, 1989.

Appellant contends that since more than two years elapsed after the youngest child became 18 before the suit for the money judgment was filed, said suit was barred by the two-year statute of limitation.

However, we have carefully searched the record, and find that Appellant at no time pleaded the defense of limitations prior to entry of the trial court's judgment appealed from; on the contrary, Appellant pleaded limitations for the first time in his Motion for New Trial. This was not timely, and cannot be considered by us. Mergele v. Houston (San Antonio CA 1968) 436 S.W.2d 951, 955, NRE; Rule 94, Texas Rules of Civil Procedure; 50 Tex. Jur. III, "Limitation of Actions", Section 167, page 639. We overrule Appellant's first point of error.

Appellant's second point of error contends the trial court erred in entering a judgment for child support arrearage because (he says) the original order was not clear, concise, and unambiguous. In support of this point of error Appellant cites and relies upon Ex parte Slavin (Tex. 1967) 412 S.W.2d 43. Slavin was a habeas corpus proceeding growing out of a contempt case, and holds that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific, and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him.

The court order upon which this judgment is predicated reads as follows:

"It is decreed that Stephen Cornell Fagan pay child support in the amount of $200.00 per month, with the first payment being due and payable on the 1st day of January, 1977, and a like payment being due and payable on the same day of each month thereafter until the child with respect to whom payments are made reaches the age of 18 years or is otherwise emancipated. Respondent shall continue to pay support in the amount of $150.00 per month as originally ordered until January 1, 1977."

Appellant argues that the judgment appealed from does not meet the Slavin test because: (1) Appellant was not ordered to pay, but it was decreed that he pay child support; (2) the person to be paid was not identified, and so Appellant was not ordered to pay child support to any particular person; and (3) it is not clear if Appellant was to pay $200.00 until the younger child reached 18 or if the child support payments were to be reduced when the older child reached 18.

As stated, the rule announced in Slavin applied to a contempt case, which is quasi-criminal in nature, and required the order to be very specific in order to be the basis for punishment by the contempt process. However, in the case at bar, we are dealing with a money judgment against the Appellant, wherein the Slavin rule is not applicable. See Freeman v. Williams (Fort Worth CA 1980) 596 S.W.2d 652 at page 653, NRE.

In the case before us, the above order quoted from provided who shall pay the child support, the amount of child support due, and the date that payments are to begin. In our opinion the order was sufficient to provide the trial court with enough information to enter a money judgment for past due child support payments. Moreover, Appellant raises this point for the first time on appeal. We therefore overrule Appellant's second point of error.

By his third and final point of error Appellant complains the trial court erred in granting a judgment because (he says) the Appellant had never been served with citation or appeared before the date of trial.

There was a considerable amount of ongoing litigation leading up to the hearing before the trial court upon which the trial court's judgment was predicated. Suffice it to say, that after a new trial had been granted by the trial court after entry of a contempt judgment on January 31, 1989, the Attorney General filed pleadings seeking a money judgment for past due child support. Hearing was set before the Court Master for June 14, 1989, concerning which Appellant received written notice on June 6, 1989.

On June 13, 1989, Appellant's attorney appeared before the Court Master during hearings set for that date and presented a motion for continuance. The Court Master reviewed the court file and determined that the matter should be presented to the District Court. The case was thereupon set by the trial court for trial on the motion for money judgment for August 21, 1989. Appellant's attorney received notice in writing of this setting on August 5, 1989. At the August 21, 1989, hearing, Appellant's attorney argued that the Appellant had no notice of the hearing, had never been served, nor had he ever appeared before the court; whereupon the trial court reviewed its file and concluded that the Appellant had appeared before the court for all purposes, and proceeded with the hearing.

Rule 120, Texas Rules of Civil Procedure provides:

"The defendant may, in person, or by attorney, or by his duly authorized agent, enter an appearance in open court. Such appearance shall be noted by the judge upon his docket and entered in the minutes, and shall have the same force and effect as if the citation had been duly issued and served as provided by law."

A defendant who, although not personally served with process, appears and asks for an extension of time to plead, or asks for a continuance, is ordinarily considered to have appeared generally, and to have waived any objections to the jurisdiction of the court over his person. Carter v. G. & L. Tool Co. of Utah, Inc. (San Antonio CA 1968) 428 S.W.2d 677 at page 681, no writ. In the case at bar, the Appellant's attorney made an appearance in court on June 13, 1989, in behalf of Appellant, and moved for a continuance, thereby waiving any complaint of improper notice. Young v. Young (Dallas CA 1988) 765 S.W.2d 440, no writ. Therefore, the trial court did not violate the requirements of due process by issuing its orders of August 21, 1989, and in rendering judgment thereafter on September 22, 1989. We therefore overrule Appellant's third and final point of error.

Judgment of the trial court is affirmed.

AFFIRMED

JOHN A. JAMES, JR.

DO NOT PUBLISHJustice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and John A. James, Jr. (Retired)]