Joe Wallace Glaspy, II v. Ginger Anne Glaspy--Appeal from 40th District Court of Ellis County

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IN THE

TENTH COURT OF APPEALS

 

No. 10-95-052-CV

 

JOE WALLACE GLASPY, II,

Appellant

v.

 

GINGER ANNE GLASPY,

Appellee

 

From the 40th District Court

Ellis County, Texas

Trial Court # 37193CC

 

O P I N I O N

 

Ginger Glaspy, hereinafter known as Ginger Bush, filed a motion to enforce a child support order and a motion for contempt against her ex-husband, Joe Glaspy. The trial court granted the motion to enforce child support and found that Glaspy was in arrears for $13,000 plus attorney's fees, but held that Glaspy was not in contempt of court. Glaspy brings two points of error charging that the evidence was legally and factually insufficient to support the trial court's judgment that he was in arrears for child support during the period between 1983 through 1994. We will affirm.

Bush was granted a divorce from Glaspy on January 28, 1983. She petitioned for child support for their two children who were five and one years of age at the time of the divorce. The trial court ordered Glaspy to pay Bush $112.50 in child support per month per child with the payments to be made into the local registry of the court on the 1st and the 15th of each month.

On April 8, 1994, Bush filed a motion to enforce the child support order, alleging that Glaspy was in arrears for $13,500. Bush claimed that he failed to keep current on his child support between the years 1983-88. Sometime in 1984, Glaspy stopped making payments to the registry. At the hearing on the motion to enforce child support, he testified that Bush had agreed that he would make his payments directly to her instead of through the court registry. She responded that his payments were sporadic at best and when made were more "of a token" rather than a full child support payment. Evidence was presented at the hearing that indicated that in some years child support payments were not made at all.

Bush attached a copy of the Ellis County payment records to the motion. After Glaspy presented cancelled checks as evidence of payments he had made to her, Bush amended her motion for enforcement of the child support order and motion to modify existing order on July 7 alleging that Glaspy now owed $12,666.50. This amended motion did not have the court payment records attached. Instead, Bush attached a payment record that she and her attorney had prepared. Other than Bush's payment document, neither party kept sufficient records of the payments made directly to Bush. Glaspy claims that he made direct payments by check and by cash. He also claims that two patios he built, one for Bush, and one for her parents, constituted partial payment of his child support obligations. Moreover, he states that he gave Bush an envelope containing $3,000 in cash that he had received as settlement of a worker's compensation claim but for which he never received credit.

From the record, it appears that Glaspy had been employed and earning an income during the period in question. Glaspy has been employed by Bramelea Engineering of Texas as an engineer earning over $11.00 an hour since October 1988. Before that, he apparently worked for a concrete company. Glaspy also apparently took several side jobs to supplement his income. He admitted that he had the ability to meet his monthly child support obligations, although he felt that he was presently current on his child support. After a hearing, the trial court entered a judgment against Glaspy.

After rendering judgment in favor of Bush, the trial court made the following findings of fact and conclusions of law:

1. The Court finds that, on January 27, 1983, Respondent, JOE WALLACE GLASPY, II., was ordered to make periodic payments of child support in an order entitled DECREE OF DIVORCE in cause number 37,193-CC and styled IN THE MATTER OF THE MARRIAGE OF GINGER ANNE GLASPY AND JOE WALLACE GLASPY, II. AND IN THE INTEREST OF HILLARY ANNE GLASPY AND NATALIE ARLENE GLASPY, MINOR CHILDREN, IN THE 40TH JUDICIAL DISTRICT COURT OF ELLIS COUNTY, TEXAS, which appears in the minutes of this Court at Volume [ ] at Page [ ] and states in relevant part as follows:

"IT IS DECREED that JOE WALLACE GLASPY, II., pay to GINGER ANNE GLASPY child support in the amount of $112.50 per month per child with the first payment of $112.50 being due and payable on the 1st day of January, 1983, and a like payment being due and payable on the 1st and 15th day of each month thereafter until the child, with respect to whom payments are being made, shall obtain the age of 18 years or is otherwise emancipated. All payments are to be made through the registry of the 40th Judicial District Court seating in Waxahachie, Texas."

2. This Court further finds that Respondent failed to pay the child-support in the amounts and on the dates ordered to Movant, GINGER ANNE GLASPY, (now known as GINGER ANNE BUSH) through the child-support registry of the 40th Judicial District Court and as shown in Exhibit "A" which is attached hereto and made a part of this FINDINGS OF FACT AND CONCLUSIONS OF LAW as if copied verbatim herein.

3. The court finds that the arrearage in child-support owed by Respondent, JOE WALLACE GLASPY, II., as of November 3, 1994, was $13,000.00.

4. The Court further finds that JOE WALLACE GLASPY, II., made direct payments to GINGER ANNE GLASPY BUSH on March 15, 1984, in the amount of $50.00; on August 01, 1984, in the amount of $112.50; on August 15, 1984, in the amount of $200.00; on September 01, 1984, in the amount of $150.00; on September 15, 1984, in the amount of $125.00; on March 15, 1986, in the amount of $100.00; and on December 15, 1988, in the amount of $100.00; for a total of $837.50 all of which was reflected in Respondent's Answers to Requests for Production filed herein.

5. The Court further finds that Respondent was given proper credit for $837.50 as reflected in Exhibit "A" attached to Petitioner's First Amended Motion for Enforcement of Child Support filed on July 7, 1994;

6. The Court further finds that Respondent, JOE WALLACE GLASPY, II., is not entitled to any further credits for past-due child support payments due and owing to Movant.

CONCLUSIONS OF LAW

1. Respondent, JOE WALLACE GLASPY, II., is indebted to Movant, GINGER ANNE BUSH, in the amount of $13,000.00 for child support arrearage from January 1, 1983, through November 3, 1994, and as contained in Exhibit "A";

2. Respondent, JOE WALLACE GLASPY, II., is indebted to Movant, GINGER ANNE BUSH, in the amount of $3,500.00 as attorney's fees and $312.00 as costs of court incurred by Movant and payable as provided in Texas Family Code Sections 11.18(a) and 14.33(b);

3. The entire indebtedness of Respondent, JOE WALLACE GLASPY, II., to GINGER ANNE BUSH bears interest at the rate of twelve (12%) percent per annum from November 8, 1994, until paid;

4. The Court further finds that the Respondent, JOE WALLACE GLASPY, II., is not guilty of criminal or civil contempt;

5. The Court further finds that Movant's claim was not barred by limitations;

6. The Court further finds that Movant's claim was not barred by laches;

7. The Court further finds that Movant's claim was not brought solely for the purposes of harassment and Respondent is not entitled to attorney's fees;

8. The Court further finds that Respondent, JOE WALLACE GLASPY, II., had the ability to pay child support in the amounts ordered and on the dates ordered in Exhibit "A".

In his two points of error, Glaspy claims that the trial court erred because the evidence was legally and factually insufficient to show that child support was due and owing. We will discuss both points jointly. In a non-jury trial, findings of fact and conclusions of law have the same force and weight as a jury verdict on special issues. Gross v. Gross, 808 S.W.2d 215, 219 (Tex. App. Houston [14th Dist.] 1991, no writ). Findings of fact are reviewable for legal and factual sufficiency under the same standards as applied when reviewing a jury's answer to a special issue. Id. at 219-20. Conclusions of law, on the other hand, may only be reviewed when attacked on legal sufficiency grounds. Id. at 220. They cannot be reviewed on grounds of factual sufficiency. Id.

Before undertaking a legal and factual sufficiency review, we must first determine who has the burden of proof. Bush brought this action to recover child support arrearages under section 14.41 of the Family Code. Act of Sept. 1, 1985, 69th Leg., R.S., ch. 232, 9, 1985 Tex. Gen. Laws 1160, 1163, repealed by Act of April 20, 1995, 74th Leg., R.S., ch. 20, 2(1), 1995 Tex. Gen. Laws 113, 282. Under section 14.41, the plaintiff, Bush, has the burden of proving the dollar amount of differences between payments made and payments required by the terms of the child support order. See Buzbee v. Buzbee, 870 S.W.2d 335, 339 (Tex. App. Waco 1994, no writ). The burden then shifts to the obligor, Glaspy, to establish any amounts claimed as offsets against the arrearage. Id.

We first address Glaspy's attack on the findings of fact. When both legal and factual sufficiency points have been raised, we must first examine the legal sufficiency of the evidence. Id. Because Glaspy did not have the burden of proof at trial, we examine only the evidence and inferences that tend to support the trial court's findings while ignoring all evidence and inferences to the contrary. Glover v. Texas Gen. Indemnity Co., 619 S.W.2d 400, 401 (Tex. 1981). If there is any evidence of probative value to support the trial court's findings, we must uphold the decision of the trial court. See Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex. 1988).

In her original motion to enforce child support, Bush attached the payment record maintained by the local registry as evidence of her claim. She argues that under section 14.311(c) of the Family Code, the payment record is a prima facie showing of the facts asserted in the record, subject to the right of the respondent to offer controverting evidence. Act of Nov. 1, 1989, 71st. Leg., 1st C.S., ch. 25, 18, 1985 Tex. Gen. Laws 74, 82, repealed by Act of April 20, 1995, 74th Leg., R.S., ch. 20, 2(1), 1995 Tex. Gen. Laws 113, 282. While the payment record may represent prima facie evidence of the facts asserted in the document, the payment record is not presently before this court. Bush filed an amended motion to enforce child support that included a payment document prepared by her and her attorney. However, she failed to attach the record maintained by the court registry. The amended motion supplanted the previous motion and all documents filed with it. See Tex. R. Civ. P. 65; See Ex Parte Thompson, 803 S.W.2d 876, 877 (Tex. App. Corpus Christi 1991, no writ). Therefore, the payment document from the local registry is excluded from the record.

In any event, the payment record prepared by Bush and filed with the amended motion constitutes some evidence to support the court's findings. Although the document is hearsay, it was admitted into evidence without objection. See Tex. R. Civ. Evid. 802; See Casas v. Gilliam, 869 S.W.2d 671, 673 (Tex. App. San Antonio 1994, no writ). Glaspy also stipulated that Bush would testify as to the contents of the record. The record documented the payments and arrearages for the years 1983-88. In addition, the court adopted the record as part of its findings of fact and conclusions of law. According to the record, Glaspy owed Bush $12,662.50 in total arrearages for those years. In addition, the record shows that Glaspy paid a total of $200 in child support for the years 1985-88. Bush testified that Glaspy rarely made payments, and when he did, it was more of a "token" than a full child support payment. Evidence was also presented that Glaspy was behind in his payments in 1994 bringing his total arrearages to $13,000. Bush presented a separate child support record that showed that Glaspy did not pay child support in June 1994 and one-half of August. She also testified to these facts. Moreover, Glaspy admitted that he was one-half in arrears for the month of August. We find that there was evidence of probative value presented at the hearing to support the trial court's findings, and therefore, the findings of fact were legally sufficient.

We must now determine if the findings of fact are factually sufficient. In reviewing a factual sufficiency challenge, we must weigh and consider all the evidence, including all evidence contrary to the judgment. Plas-tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). Like legal sufficiency points, the standard of review for factual sufficiency points depends on who has the burden of proof. If the party attacking the evidence did not have the burden of proof at trial, he must show that the evidence was insufficient to support the adverse finding. Gooch v. American Sling Co., Inc., 902 S.W.2d 181, 184 (Tex. App. Fort Worth 1995, no writ). In other words, he must show that "the evidence supporting the finding is so weak or that the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered." Id.

We have previously addressed the evidence in favor of the trial court's findings. Glaspy presents little evidence to contradict the findings of the trial court that he was in arrears for child support. Glaspy claims that he had an agreement to pay the child support payments directly to Bush rather than through the court registry. He states that Bush had no proof that he did not make these payments. While it is true that Bush had the initial burden, she met that burden through the presentation of her payment record and her testimony. The burden then shifted to Glaspy to rebut the presumption that he has not paid the child support. Glaspy presented copies of 10 cancelled checks that he had given to Bush to support his proposition that he was current on his child support. However, Glaspy did not provide any documentation with these checks to show which particular payments these checks represented. It appears that the payment record prepared by Bush took into account these payments. Moreover, the trial court gave Glaspy credit for these payments in its findings of fact. Glaspy made no attempt to obtain other bank records to support his contention that he has made all past payments. While there was some indication that Glaspy's second wife had burned all his cancelled checks, he could still have provided evidence of his claim either through identifying the payments on his bank statements or simply getting copies of his cancelled checks from the bank.

Glaspy also cites Bush's testimony at her deposition for the proposition that he was current on his child support payments. He claims that he made all payments directly to her. She admitted that she and Glaspy had reached an agreement that he would pay her directly rather than through the child support office. However, she also testified that he did not make regular payments and that, when he did, "it was more of a token rather than a regular child support check." Once again, Glaspy cannot provide any evidence to controvert Bush's evidence that he has not made all the necessary payments.

Glaspy testified at the hearing that he had caught up on all his arrearages when he received a settlement for a worker's compensation claim. He claims that he gave Bush an envelope containing $3,000 in cash to make up the arrearages. Glaspy's second wife, Lisa, also testified in Glaspy's behalf. She testified that Glaspy told her he was going to give Bush $3,000. She also stated that she was standing next to Glaspy during a phone conversation in which Bush allegedly stated that Glaspy had caught up on his arrearages. She further testified that Glaspy had told her that he had paid Bush everything that he owed her before he and Lisa were married.

However, Glaspy does not present any other evidence that he is current on his child support payments. He does not present any records or documentation to support his position. His sole evidence consists of his own testimony and hearsay statements that his second wife testified to. Bush testified that she did not remember ever receiving a $3,000 cash payment from Glaspy. While Lisa testified that Glaspy told her that he was going to give Bush the $3,000, she admitted on cross-examination that she neither saw the transfer take place, nor had any way to know whether it actually occurred. Moreover, she admitted that Glaspy did not make regular monthly child support payments. In addition, when she testified that she was standing next to Glaspy when Bush allegedly stated that he was current on his child support, she later admitted on cross-examination that she did not actually hear the phone conversation.

Glaspy also claims that the two patios he built at the homes of Bush and her parents constituted partial payment of his child support obligations. With regard to the patio he built for his ex-wife, Bush testified that there was no agreement to apply the cost of the patio to child support. Moreover, even if the work did constitute payment of child support, Glaspy did not present any evidence that specified what the patio was worth with regard to his support obligations. Concerning the other patio, Bush presented her parents' cancelled check that represented payment in full to Glaspy for the construction of the patio.

Glaspy has not met his burden of showing that he has met his child support obligations. One of the main purposes of requiring a party to make his child support payments through the registry of the court is to ensure that the party is adequately protected if a fact issue is ever raised that calls into question his conduct with regard to making payments. See Niles v. Rothwell, 793 S.W.2d 77, 78 (Tex. App. Eastland 1990, no writ). After reviewing all the evidence, we find that the trial court's findings of fact are factually sufficient.

With regard to the legal sufficiency of the trial court's conclusions of law, we must sustain these findings if there is any evidence of probative value to support them. Gross, 808 S.W.2d at 220-21. We have previously discussed the relevant evidence in support of the judgment. We find that there is probative evidence that Glaspy is in arrears for $13,000 plus interest at 12% interest per annum beginning on November 8, 1994, until paid for failure to meet his child support obligations during the period January 1, 1983, through November 3, 1994. Moreover, we find there is sufficient evidence to support the trial court's award of $3,500 in attorney's fees and $312 as costs incurred by Bush and payable as provided by the Family Code. Act of Jan. 1, 1974, 63rd Leg., R.S., ch. 543, 1, 1974 Tex. Gen. Laws 1411, 1419, repealed by Act of April 20, 1995, 74th Leg., R.S., ch. 20, 2(1), 1995 Tex. Gen. Laws 113, 282; Act of Sept. 1, 1985, 69th Leg., R.S., ch. 232, 9, 1985 Tex. Gen. Laws 1160, 1162, repealed by Act of April 20, 1995, 74th Leg., R.S., ch. 20, 2(1), 1995 Tex. Gen. Laws 113, 282. Therefore, we overrule Glaspy's sufficiency points.

Bush also files a cross-point requesting that Glaspy pay 10% of the judgment amount awarded in the trial court as damages pursuant to Rule 84 of the Rules of Appellate Procedure. Tex. R. App. P. 84. Rule 84 allows a court to award damages if it is determined that the appellant has brought the appeal for delay and without sufficient cause. This Court must review the record from the appellant's point of view at the time the appeal was taken to determine if the appellant had reasonable grounds to believe that the case should be reversed. Hicks v. Western Funding, Inc., 809 S.W.2d 787, 788 (Tex. App. Houston [1st Dist.] 1991, writ denied). In a review of the record, we find that Glaspy had reasonable grounds to bring this appeal and therefore overrule Bush's cross point.

We overrule all points and cross points and affirm the judgment of the trial court.

 

BOBBY L. CUMMINGS

Justice

 

Before Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed March 27, 1996

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