In the Interest of F.C., Jr., A Child--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00412-CV

IN THE INTEREST OF F.C., JR., a Child,

From the 37th Judicial District Court, Bexar County, Texas

Trial Court No. 1978-CI-4365

Honorable Fred Shannon, Judge Presiding //

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 19, 2005

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Gloria Gay appeals the judgment ordering her ex-husband to pay her $23,208.67 in child support arrearages and $4,250.00 in attorney s fees. Gay argues the trial court erred in ordering that the attorney s fees be paid out of the arrearages. Gay is correct. If a trial court finds that the respondent has failed to make child support payments, the court shall order the respondent to pay the movant s reasonable attorney s fees and all court costs in addition to the arrearages or [f]or good cause shown, the court may waive the requirement that the respondent pay attorney s fees and costs if the court states the reasons supporting that finding. Tex. Fam. Code Ann. 157.067 (a), (c) (Vernon Supp. 2004) (emphasis added). But what the trial court may not do (except by offset or counterclaim for actual support proved by the obligor) is reduce a child support arrearage. See Tex. Fam. Code Ann. 157.262 (a), (f); 157.008 (Vernon 2002).

Gay asks that we simply reform the judgment to reflect the attorney s fees are to be paid in addition to the arrearages. We are unable to do so, however. In light of the trial judge s statements regarding Gay s delay in filing this enforcement proceeding, we cannot determine whether the trial court would award attorney s fees in addition to the arrearages or find good cause for not awarding them at all. We therefore reverse the trial court s judgment in relevant part and remand the cause for further proceedings consistent with this opinion.

Sarah B. Duncan, Justice