In the Interest of D.A.T., Minor Child v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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IN THE INTEREST OF D.A.T., No. 08-23-00308-CV
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Minor Child. Appeal from the
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166th District Court
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of Bexar County, Texas
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(TC# 2014CI13033)
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MEMORANDUM OPINION

This is an appeal from an order in a suit to modify the parent-child relationship. Tara Grays

(Mother) challenges three distinct rulings: (1) the jury’s finding and the trial court’s award of the

exclusive right to determine the child’s primary residence to Isidro L. Trevino (Father), (2) the

trial court’s assessment of retroactive child support against Mother, and (3) the trial court’s

rendering of a judgment against Mother for retroactive child support. For the reasons that follow,

we affirm the trial court’s judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married in March 2012 and divorced in 2017 after they ceased to

live together as husband and wife in about July 2013. Mother and Father’s son, D.A.T., was six

years old at the time of their divorce. They were each appointed as joint managing conservators of

D.A.T. by the final decree of divorce. Specifically, Mother was named as the joint conservator

with the exclusive right to designate D.A.T.’s primary residence, but her exercise of this right was

limited to the continental states of the United States of America. A Standard Possession Order set

forth the parties’ periods of access and possession. As for child support, the decree ordered that

Father was not obligated to pay child support, while Mother was ordered that she continue to

provide health, vision, and dental insurance for D.A.T.

In June 2019, Mother filed a motion to modify the parent-child relationship, asserting a

material and substantial change in circumstance required the lifting of the geographical restriction

on the child’s primary residence. Father answered her suit with a general denial and a counter-

petition that also sought modification of prior orders. Specifically, Father sought appointment as

sole managing conservator of D.A.T., which includes the exclusive right to designate the primary

residence of the child. 1 Additionally, he requested for Mother to be appointed a possessory

conservator, for Mother’s access and possession of D.A.T. to be restricted and supervised, and for

Mother to pay him monthly child support. Father’s child support request specifically asked for it

to be paid beginning on the day that the court rendered the final order, or the first day of the month

following its determination; and he further sought an order for temporary child support during the

pendency of the case. Mother answered Father’s counter-petition with a general denial and she

1
Tex. Fam. Code Ann. § 153.132(1).

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included in her pleading a request for a finding that Father had filed his suit frivolously or in a

manner designed to harass her.

In July 2019, the trial court held a hearing on temporary orders. 2 As relevant here, the trial

court appointed Father as the temporary joint managing conservator with the exclusive right to

designate D.A.T.’s primary residence, restricted to Bexar County, Texas. Mother was also

appointed as a temporary joint managing conservator. Neither parent was ordered to pay child

support until further orders of the court. Various orders affecting the parties and the child were

included in the court’s temporary orders, as follows: (1) the court appointed an amicus attorney,

who was ordered to formulate recommendations for the court, (2) the court ordered that a social

study of the parties, their homes, and the circumstances of the child be prepared by Dina Trevino,

Ph.D., and (3) the court ordered that D.A.T. receive therapy from a therapist jointly selected by

the amicus attorney and Dr. Trevino.

On November 15, 2022, Mother filed a motion for non-suit. The district court granted the

motion and dismissed the petition with prejudice to refiling in the current proceeding, noting a jury

trial had already been assigned by that date.

The case soon proceeded to a jury trial and partial bench trial based on Father’s counter-

petition only. First, the jury decided whether the prior order designating Mother as the conservator

who had the exclusive right to designate the primary residence of D.A.T. should be modified to

designate Father as holding that right. The jury answered “Yes.” Second, all the remaining issues

were next tried to the bench. On September 14, 2023, the trial court signed a final order modifying

2
The temporary orders were rendered and entered in the court’s records on July 22, 2019 but signed on October 10,
2019. The orders continued in force until further orders of the court.

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the parent child relationship. 3 Relevant to the appellate issues, the trial court’s final order provided

as follows:

• Mother and Father were appointed as joint managing conservators.

• Father was awarded the exclusive right to designate D.A.T.’s primary residence

without a geographical restriction.

• It was ordered that Mother was obligated to pay child support in the amount of

$1,038.01 per month, with the first payment being due and payable on April 1,

2023, and a like payment due on May 1, 2023. Thereafter, Mother must pay to

Father child support in the amount of $1,125.98 per month beginning on June

1, 2023, and a like payment being due and payable on the first day of each

month thereafter until one of the events specified for termination were met.

• It was ordered that Mother was assessed retroactive child support from August

1, 2019, to March 31, 2023, in the amount of $38,905.18.

• It was also ordered that a judgment was granted against Mother and in favor of

Father in the amount of $38,905.18, with interest as provided by law, for

retroactive child support. Mother was further ordered to pay the retroactive

child support judgment by paying $200 each month beginning April 1, 2023,

and continuing a like payment on the same day of each month thereafter until

the arrearage is paid in full.

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The order stated that the trial court heard the case in November 2022 (the dates of the jury trial) and April 4, 2023.
Our record on appeal does not contain a transcript or record from any hearing outside the jury trial. We address the
absence of the bench-trial portion of the case under issue two.

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Although Mother requested findings of fact and conclusions of law, none were entered by

the court. Mother also filed a motion for new trial, which was overruled by operation of law. This

appeal followed.

II. ISSUES ON APPEAL
Mother presents three issues. First, she contends the trial court abused its discretion in

denying her motion for new trial, arguing the evidence at trial was factually insufficient to support

the jury’s determination that Father should have the exclusive right to determine D.A.T.’s primary

residence. Second, she maintains the trial court abused its discretion in awarding retroactive child

support to Father. Third and relatedly, she urges the trial court abused its discretion by awarding a

judgment for retroactive child support.

Although we address each issue in numerical order, we combine the second and third issues

together.

III. THE CHILD’S PRIMARY RESIDENCE
In her first issue, Mother contends the evidence was factually insufficient to support the

jury’s determination that Father should have the exclusive right to determine the primary residence

of D.A.T. She argues the trial court abused its discretion in denying her motion for new trial.

A. Standard of review

Ordinarily, we review a trial court’s modification order for a clear abuse of discretion. Long

v. Long, 144 S.W.3d 64, 67 (Tex. App.—El Paso 2004, no pet.); Gillespie v. Gillespie, 644 S.W.2d

449, 451 (Tex. 1982). But when a jury reaches a verdict following a trial, as is applicable here, a

trial court may not contravene the jury’s verdict that determines which of the joint managing

conservators has the exclusive right to designate the primary residence of the child. Tex. Fam.

Code Ann. § 105.002(c)(1)(D). Rather, the jury’s verdict is reviewed for legal and factual

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sufficiency. See Lenz v. Lenz, 79 S.W.3d 10, 17 (Tex. 2002) (applying legal sufficiency standard

to review of jury verdict); Alexander v. Rogers, 247 S.W.3d 757, 761 (Tex. App.—Dallas 2008,

no pet.) (holding legal-and factual-sufficiency review applies to jury verdict). Cecil v. Smith, 804

S.W.2d 509, 512 (Tex. 1991) (citing Tex. R. Civ. P. 324 (b)). A motion for new trial preserves

error for review on a factual insufficiency complaint. (“Factual insufficiency points of error are

expressly required by Rule 324(b) to be raised in a motion for new trial.”); see also Tex. R. App.

P. 33.1.

In conducting a factual sufficiency review, we must consider all the evidence supporting

or contradicting the fact-finder’s determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d

442, 445 (Tex. 1989). We may only set aside a verdict if the evidence supporting it is so contrary

to the overwhelming weight of the evidence as to be clearly wrong or unjust. Cain v. Bain, 709

S.W.2d 175, 176 (Tex. 1986). When conducting a factual sufficiency review, a reviewing court

must not merely substitute its judgment for that of the jury. Golden Eagle Archery v. Jackson, 116

S.W.3d 757, 761 (Tex. 2003). And it must also recognize that the jury is the sole judge of the

credibility of witnesses and the weight to be given to their testimony. Id.

B. Applicable law

Under the Texas Family Code, a court may modify an order that provides for the

appointment of a conservator of a child, that provides the terms and conditions of conservatorship,

or that provides for the possession of or access to a child, if it is shown that: (1) there has been a

material and substantial change in the circumstances of the child, a conservator, or other party

affected by the order, since the earlier of the date of the rendition of the order, or the date of the

signing of a mediated settlement agreement, and (2) the modification of the order would be in the

child’s best interest. See Tex. Fam. Code Ann. § 156.101(a)(1)(A); Lenz, 79 S.W.3d at 14. The

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public policy of the state is to assure that children will have frequent and continuing contact with

parents who have shown the ability of acting in the best interest of the child; to provide a safe,

stable, and nonviolent environment for the child; and to encourage parents to share in the rights

and duties of raising their child after the parents have separated or dissolved their marriage. See

Tex. Fam. Code Ann. § 153.001.

Here, the parties do not dispute whether there was a material or substantial change in

circumstances since the rendition of the divorce decree. To that extent, the first requirement of a

modification was met. As for the second requirement, Mother challenges the jury’s determination

that Father should have the exclusive right to determine their child’s residence in Bexar County,

Texas. She argues the evidence is factually insufficient to support the jury’s determination that

Father’s right to determine the child’s primary residence is in the child’s best interest.

As for a best interest finding, the Supreme Court of Texas enumerated a non-exhaustive

list of factors to be considered. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The

Holley factors include: (1) the desires of the child; (2) the emotional and physical needs of the

child now and in the future; (3) the emotional and physical danger to the child now and in the

future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to

assist these individuals to promote the best interest of the child; (6) the plans for the child by the

individuals seeking custody; (7) the stability of the home or proposed placement; (8) the acts or

omissions of the parent which may indicate that the existing parent-child relationship is not a

proper one; and (9) any excuse for the acts or omissions of the parent. Id.

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C. Record evidence

(1) Mother’s and Father’s testimony

Three witnesses testified at trial: Father, Mother, and Dr. Trevino, the licensed psychologist

who performed a child-custody evaluation and social study. Exhibits were also admitted into

evidence, to include Dr. Trevino’s written child-custody evaluation, prior court orders relevant to

the parties, and multiple photographs of D.A.T. The testimony at trial established that Father

owned a home located in San Antonio. At the time of trial, Father was retired after working 21

years with the United States Border Patrol. Father had three other adult children.

Mother is currently working as an officer of the Department of Homeland Security assigned

to Customs and Border Protection (CBP). After divorcing Father, Mother married Johnny Grays,

a CBP co-worker. In addition to D.A.T., Mother has three other children: a boy older than D.A.T.

who lives with his father in Texas, and another boy and girl younger than D.A.T. who live with

Mother and her husband. In 2017, when the parties’ divorce decree was entered, D.A.T. then lived

with Mother in Ashburn, Virginia. In November of that year, Mother moved with D.A.T. to Troy,

Michigan. Mother described that several reasons had led to the move, including that she had

transferred positions with CBP, that she was seeking healthcare for D.A.T. that was unavailable

where they had been living, and that her husband had been living in Michigan. In May 2018,

Mother moved from Troy to Applegate, Michigan. In March 2019, Mother and her husband both

accepted a temporary detail in St. Simons Island, Georgia, where they both attended an instructor’s

academy for their jobs.

In July 2019, D.A.T. went to San Antonio for his summer visitation with Father. During

this visit, D.A.T. told Father that he was physically abused by Grays, his step-father. Father

testified that D.A.T. had described to him that Grays had been throwing limes and oranges at him

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and threatened him with a knife. CPS investigated the incident but soon closed the case after

determining that Grays and D.A.T. had often thrown socks at each other and no evidence

established Grays had posed a danger to D.A.T. or had mistreated him. Soon after the incident,

Father obtained temporary primary conservatorship of D.A.T. by means of a temporary order.

After completing her assigned detail in Georgia, Mother moved back to Michigan while

D.A.T. stayed with Father in San Antonio. Mother later accepted an assignment to Aruba and lived

there with her two youngest children from November 2020 to February 2022. During that

timeframe, Mother did not visit D.A.T. and he did not visit her. In February 2022, Mother moved

to Anthem, Arizona, near Phoenix, where she started a new position working with the federal

government’s Bureau of Indian Affairs.

(2) Testimony of the child custody evaluator

In addition to Mother’s and Father’s testimony, Dr. Trevino also testified as to her child

custody evaluation. Her written report dated November 12, 2022, was also admitted into evidence.

In completing her evaluation, Dr. Trevino individually interviewed Mother, Father, D.A.T.’s

amicus attorney, and D.A.T.’s therapist. She also reviewed extensive documents submitted by the

parties and those she obtained from other professionals; she interviewed collateral witnesses in

person or by videoconferencing; she reviewed written questionnaires completed by one or more

parties; and she conducted home visits of each parent’s household. Dr. Trevino’s written report

recommended that Mother and Father be named joint managing conservators, and that Father

have the exclusive right to establish D.A.T.’s residency.

D. Analysis

Mother contends the evidence supporting the jury’s determination of the child’s primary

residency is so weak it was manifestly unjust and wrong, and the trial court abused its discretion,

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by refusing to grant a new trial. In weighing the Holley factors, she contends the evidence does not

support a modification of the parties’ divorce decree because she claims that Father having the

exclusive right to designate the child’s primary residence is not in D.A.T.’s best interest.

Specifically, she argues the evidence is factually insufficient to support the jury’s verdict because,

among other things, the greater weight of the evidence established that: (1) Father had failed to

care for D.A.T.’s dental hygiene during his periods of possession; (2) D.A.T. received bed-bug

bites while living at Father’s house; (3) D.A.T. had issues with his weight and Father fed him fast

food; (4) D.A.T. developed a nervous tick while in Father’s care; and (5) Father did not take part

in D.A.T.’s therapy. Additionally, she contends the greater weight of the evidence established she

was better suited to care for D.A.T. because she took care of his dental issues, she fed him a healthy

diet, and she frequently checked in on his progress in therapy. Mother points to testimony

throughout trial to support her position. We conclude the evidence Mother points to does not

conclusively establish that Father should not have the exclusive right to designate the child’s

primary residence or that the evidence the jury relied on to conclude that he should be granted that

right is so weak that it is outweighed by the greater weight and preponderance of the evidence

admitted at trial.

Pertinent to the Holley factors, the record shows the jury heard conflicting evidence about

whether a modification of the parties’ divorce decree would be in the child’s best interest to the

extent of modifying the naming of the conservator with the right to designate the child’s primary

residence. For example, the jury heard evidence that, since the rendering of the 2017 decree,

Mother had moved at least five times as follows: to Troy, Michigan, in November 2017; to

Applegate, Michigan, soon thereafter; to St. Simons Island, Georgia, in March 2019; to Aruba in

November 2020; and lastly, to Anthem, Arizona, in February 2022. During that timeframe, the

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jury also heard evidence that Father consistently lived in San Antonio. Moreover, Dr. Trevino’s

report described that Father provided a more stable living situation as he had no plans to move;

yet, based on Mother’s past history, her living situation was less predictable.

As for the child’s desires, the jury received evidence that D.A.T. had expressed that he felt

hurt and abandoned by Mother. Dr. Trevino’s report described that “[D.A.T.] has consistently

expressed hurt, abandonment, and rage vis-à-vis his mother,” and that “[h]e gradually has become

more accustomed over the last few years to his mother’s absence, and his anger does not appear as

raw, but continues to feel safer and more accepted with his father.” The report further documented

that Mother had expressed her concerns that Father talked negatively to D.A.T. about her and it

affected him negatively about wanting to see her. Mother acknowledged that each time D.A.T.

returned to see her after being with Father, she needed to readdress the same issues while D.A.T.

openly cursed at her, threatened her, and told her how much he hated her. Mother reported she felt

that Father had been alienating D.A.T. from her.

While the evidence did show that Father encouraged D.A.T.’s negative feelings towards

Mother, the record also established that D.A.T. had expressed that he felt safe and well-accepted

by his Father. Additionally, although there was no evidence suggesting or establishing that his

step-father, Johnny Grays, had posed any danger to him, the evidence nonetheless showed that

D.A.T. struggled emotionally when visiting Mother’s home. Specifically, during D.A.T.’s summer

2022 visitation with Mother, D.A.T. grabbed a knife and tried to hurt himself during a time when

Mother was not at home. D.A.T. told Father that his step-father and his step-brother handcuffed

him on the occasion and sat him outside until Mother returned home. Although Mother

acknowledged the event at trial, she disputed the detail that D.A.T. had been handcuffed during

the incident.

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As for Dr. Trevino’s trial testimony, Mother asserts she contradicted her written evaluation

report. Specifically, Mother points to testimony of Mother’s involvement with D.A.T.’s therapy;

Father’s ability to meet D.A.T.’s physical needs; the involvement of each parent in D.A.T.’s daily

activities and in meeting his needs; the comparison of the stability of each parent’s home; and what

D.A.T. expressed to her about where he wanted to live. Mother argues the evidence supporting Dr.

Trevino’s recommendation that Father should be granted the right to determine the primary

residence of D.A.T. was factually insufficient to support the jury’s finding. We conclude that

Mother has misapplied this standard of review.

To show factual insufficiency, Mother must establish the evidence was “so weak or the

verdict so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.”

In re S.K.H., 324 S.W.3d 156, 159 (Tex. App.—El Paso 2010, no pet.) (citing Cain, 709 S.W.2d

at 176). As for any inconsistencies between Dr. Trevino’s testimony and her report, the jury

resolved any contradictions by its verdict in favor of Father. See City of Keller v. Wilson, 168

S.W.3d 802, 819 (Tex. 2005).

In summary, from all the evidence presented at trial, we conclude the jury could have

reasonably determined that Father should have the right to designate D.A.T.’s primary residence

and it served the child’s best interest. Juries are to decide the credibility of the witnesses, including

whether to believe one witness and disbelieve another, and the weight to be given to testimony.

Wilson, 168 S.W.3d at 819. The jury had sufficient facts to determine the contested issue; and in

this instance, the trial court was statutorily required to defer to the jury’s decision. See Tex. Fam.

Code Ann. § 105.002(c)(1)(D).

Mother cites us to a case she claims contains similar facts, and in which the court concluded

it was in the children’s best interest to remain with their mother. See Interest of C.S., No. 04-20-

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00421-CV, 2021 WL 5496159, at *4 (Tex. App.—San Antonio Nov. 24, 2021, no pet.) (mem.

op.). We conclude, however, that Mother’s cited case is inapposite. There, the trial court, after a

bench trial, had denied the father’s request to be named the conservator with the exclusive right to

designate the primary residence of the children but retained the mother as the conservator with that

right. Id. at *1. Notably, the sufficiency of the evidence to support the trial court’s best interest

finding was not an issue on appeal. Id. at *1–2. Rather, the father was appealing the trial court’s

failure to interview the children in chambers, and in reviewing that complaint, the Fourth Court of

Appeals concluded the lack of interview did not cause the rendition of an improper judgment. Id.

at *4. We conclude that Mother’s cited authority does not support her proposition that the evidence

presented was so weak that it was clearly wrong and manifestly unjust.

We overrule Mother’s first issue.

IV. RETROACTIVE CHILD SUPPORT
In her two remaining issues, Mother contests the trial court’s award of retroactive child

support. Specifically, the trial court ordered the following:

It is ORDERED that [Mother] is assessed retroactive child support from August 1,
2019, to March 31, 2023, in the amount of $38,905.18.

IT IS THEREFORE ORDERED that a judgment is granted against [Mother] and
in favor of [Father] in the amount of $38,905.18 with interest as provided by the
law of the State of Texas; for collection and distribution according to law.

Mother’s second issue argues the trial court erred in ordering her to pay retroactive child support

because Father provided no notice that he intended to seek such relief. And in her third issue,

Mother urges the trial court erred in awarding a judgment in favor of Father and against her for

retroactive child support because no enforcement action had been brought for such unpaid support.

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A. Applicable law and standard of review

“There are four ‘types’ of child support that a court may order one parent to pay to the

other—temporary, current, medical, and retroactive.” In re B.R.F., 457 S.W.3d 509, 510

(Tex. App.—El Paso 2014, no pet.) (citation omitted). As relevant here, the term “retroactive

support” refers to at least two concepts. In re J.G.Z., 963 S.W.2d 144, 146 (Tex. App.—Texarkana

1998, no pet.). First, “[r]etroactive support can be ordered in instances where child support has not

been previously ordered.” Id.; see also Tex. Fam. Code Ann. § 154.009(a)(1). Second, Texas

courts can also “retroactively modify existing child support obligations.” In re J.G.Z., 963 S.W.2d

at 146. Child support can also be ordered in instances where it has not been previously ordered.

Id.

A trial court’s award of retroactive child support is reviewed for an abuse of discretion. Id.;

see also Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). The test is whether

the court acted arbitrarily or unreasonably, or without reference to guiding rules and principles.

Worford, 801 S.W.2d at 109.

B. Fair notice

In her second issue, Mother argues she was not provided with notice that Father was

seeking retroactive child support from her. She points out that Father’s counter-petition only

requested child support that would begin on the day the trial court rendered a final judgment, or

on the first day of the month following the court’s child support determination.

In Texas, fair notice ordinarily provides sufficient notice to a party. Taylor v. Taylor, 337

S.W.3d 398, 401 (Tex. App.—Fort Worth 2011, no pet.); see also Tex. R. Civ. P. 45(b), 47(a).

(providing that pleadings must give “fair notice of the claim involved”). However, “[s]pecific

notice is required when retroactive child support is being sought.” In re J.G.Z., 963 S.W.2d at 148.

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Here, among his claims, Father’s counter-petition requested that he be appointed sole

managing conservator, and that Mother be denied access to the child. He also asserted that Mother

should be obligated to support the child and should be ordered to make payments in the manner

specified by the court. On final hearing, his counter-petition asked for that support to begin on the

day the court rendered the final order or the first day of the month following the determination of

child support. As for temporary orders, however, Father’s counter-petition also asked for the trial

court to “issue an order for temporary child support to be paid by [Mother] to [Father] for the

benefit of the child subject to this suit during the pendency of this case.” And following a hearing

on temporary orders, the trial court rendered temporary orders, effective July 2019, which provided

that Father was appointed the temporary joint managing conservator with the exclusive right to

designate the child’s primary residence. The temporary orders further determined that neither party

was ordered to pay or be entitled to receive child support from the other party.

After the jury found that Father should have the exclusive right to determine the child’s

primary residence, the trial court subsequently rendered a final order incorporating the jury’s

residency determination. For the period from August 1, 2019, to March 31, 2023, or during the

pendency of the case, the trial court assessed retroactive child support against Mother in the total

amount of $38,905.18. 4

We conclude that Father’s counterpetition provided Mother specific notice that Father

sought child support during the pendency of the case after the counterpetition’s filing. See M.G. v.

T.G., No. 02-21-00433-CV, 2023 WL 2178762, at *4 n.13 (Tex. App.—Fort Worth Feb. 23, 2023,

4
As for prospective child support, the trial court ordered that Mother was obligated to pay child support of $1,038.01
per month with the first payment being due and payable on April 1, 2023, and a like payment for May 1, 2023, and a
payment of $1,125.98 per month beginning on June 1, 2023, and each month thereafter until terminated as specified
by the order.

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no pet.) (mem. op.) (“The language in [father’s] counterpetition requesting a temporary order

requiring [mother] ‘to provide child support and medical support as deemed appropriate by the

Court’ provided [mother] fair and adequate notice that [father] sought child support during the

case’s pendency but after the counterpetition’s filing.”); Taylor, 337 S.W.3d 398 at 401 (finding

fair notice of request for child support during the pendency of the case when pleadings requested

the father “be ordered to make payments for the support of the child” “and further sought a

temporary order for child support ‘while this case is pending’”).

Additionally, we conclude that Mother otherwise failed to show the issue of retroactive

child support was not tried by consent. Although neither party presented evidence concerning child

support during the jury trial, it is clear from our record that a separate bench trial was held on other

matters on April 4, 2023. Following this hearing, the trial court entered “Additional Orders” where

it made the finding of child support and retroactive child support. The reporter’s record for the

April hearing is not part of our record. “The appellant bears the burden to ensure that a sufficient

appellate record is presented to show reversible error.” Interest of C.J., 689 S.W.3d 417, 421–22

(Tex. App.—Dallas 2024, no pet.). If an appellant fails to present a complete reporter’s record on

appeal, the appellate court must presume the omitted portions are relevant and support the trial

court’s judgment. See id. at 422; see also Tex. R. App. P. 34.6(c)(4).

Accordingly, we must conclude the trial court had sufficient evidence before it to assess

retroactive child support. We overrule Mother’s second issue.

C. Arrearage judgment

In her third issue, Mother contends the trial court abused its discretion when it awarded a

judgment in the amount of $38,905.18 for retroactive child support. She argues the retroactive

child support was prospective, the trial court made no findings that she was in arrears for any

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support, and Father brought no enforcement action under Chapter 157 of the Texas Family Code.

In response, Father concedes he is not entitled to a judgment on the retroactive child support until

such time that Mother becomes delinquent.

It is clear from the record here that there was no arrearage upon which a cumulative

judgment could be entered. See Tex. Fam. Code Ann. § 157.263. Even though we have concluded

that Father’s counter-petition requested child support from the time of his petition’s filing, he did

not also include a request for a judgment against Mother. Although the trial court called the

retroactive support a “judgment,” it was instead a child support order. See In Interest of J.G.Z.,

963 S.W.2d at 148. A judgment could only be supported if Mother failed to make payment in the

future as required by the order.

Accordingly, we sustain Mother’s third issue with respect to the awarding of a judgment

against her in the amount of $38,905.18.

V. CONCLUSION
We strike that part of the trial court’s judgment which awards a judgment of $38,905.18

against Mother. As modified, we affirm the judgment.

GINA M. PALAFOX, Justice

February 28, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.

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