Full Opinion

NUMBER 13-24-00500-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG IN THE INTEREST OF A.S.P., A CHILD ON APPEAL FROM THE 214TH DISTRICT COURT OF NUECES COUNTY, TEXAS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices West and Cron Memorandum Opinion by Justice West This is an appeal of a modified child support and possession order. By three issues which we construe as one issue, appellant Alfonso Perez (Father) argues the trial court abused its discretion when it entered the final order because the parties entered into an agreed judgment on the record, and the final order includes terms outside of that agreement or excludes terms the parties agreed to. We sustain Father’s issue in part because the final order excludes a material provision of the parties’ agreement, namely, the start and end date of the parties’ child support payments. Accordingly, we affirm in part and reverse and remand in part. I. BACKGROUND In a 2011 divorce decree, the parties were named joint managing conservators of their son A.S.P., born in 2006, with Angela Perez (Mother) granted the exclusive right to designate the child’s primary residence and Father ordered to pay child support. On January 24, 2020, the trial court rendered an order providing in part that Father “is in arrears on child support in the amount of $11,026.41” and “is in arrears on medical support in the amount of $325.96” as of December 31, 2019, and granting judgments against Father for those amounts with interest. The order set Father’s current child support obligation at $475 per month and his current medical support obligation at $200 per month. Further, the order required him to pay the arrearage judgment in $100 monthly installments beginning in May 2020, and if he has not paid in full by the date his current child support obligation ends, to pay the remainder in $575 monthly installments until the arrearage is paid in full. In April 2023, Father filed a motion to modify the January 24, 2020 order. The motion requested that the trial court designate Father as the primary conservator of A.S.P. and order Mother to pay monthly child support. He further requested “the court to determine the amount, if any, that . . . he would owe in back child and/or medical support.” On March 26, 2024, the trial court held a final hearing on Father’s motion. Mother, who appeared pro se, agreed on the record: that Father should have primary custody of A.S.P., to “a standard possession order for parties that live 100 miles or more apart,” and to pay child support calculated from her “2023 W2 earnings.” She also agreed the 2 modified order would be in the child’s best interest. Father testified that he agreed with these terms and that modification was in the child’s best interest. Mother then asked whether Father’s arrearages in child support would count towards her child support: [Mother]: My question is [Father] from the time that [A.S.P.] lived with me had back pay. So[,] my question is: Would it— would that count towards what I have to pay now? .... [Father’s Attorney]: My understanding is we cannot modify or change an arrearage judgment that had already been entered a good long time ago. So the answer is no. [Mother]: So he no longer owes? [Father’s Attorney]: No, he owes the back child support. You cannot change an order for back child support. It’s—I guess you could change it by agreement, but that’s not here today. [Mother]: Okay. Father’s attorney then recalled Father to testify as to when A.S.P. began living with him. According to Father, A.S.P. started living with him about two years ago. After some back and forth testimony about whether Mother consented to having A.S.P. live with Father, the hearing concluded as follows: [The Court]: All right. [Mother], do you agree to the agreement that was recited by [Father’s attorney]? [Mother]: The child support? The custody? [The Court]: Everything that was recited.[ 1] [Mother]: Yes, that’s fine. Yes, ma’am. 1 Father’s attorney asked Mother if she “agree[d] that primary custody should be with [Father]” and agreed to “a standard possession order for parties that live 100 miles or more apart,” to which she responded, “Yes.” Other than that, there were no specific terms “recited” in the record. 3 [The Court]: All right. Then, at this point, motion is granted. Judgment is rendered. [Father’s attorney] will prepare the order. He will send it to [Mother] and then it will be presented to me. Is there anything else? [Father’s Attorney]: No, ma’am. Thank you so much. [The Court]: All right. This hearing is adjourned. Everybody is excused. Thank you. On June 3, 2024, Father filed a “Motion to Enter Final Order in Suit to Modify Parent-Child Relationship,” and his proposed final order. The proposed order generally contained standard child custody and support provisions required under the Texas Family Code. See, e.g., TEX. FAM. CODE §§ 154.004 (“Place of Payment”), 154.007 (“Order to Withhold Child Support from Income”), 154.008 (“Provisions for Medical Support or Dental Support”). It also contained the following paragraph: Past child support The order being modified obligated [Father] to pay $475.00 per month in current child support and $200.00 for current medical support. Because the child has been in [Father]’s physical possession since January 4, 2021[,] and he has provided the child support during this time period the court orders an offset of the child and medical support [Mother (sic)] was ordered to pay during those months such that he is relieved of that obligation beginning January 4, 2021 to date, and the current order is so modified. See id. § 157.263(b-3) (“In rendering a money judgment under this title that includes child support, medical support, or dental support arrearages, the court may not reduce or modify the amount of arrearages but, in confirming the amount of arrearages, may allow a counterclaim or offset as provided by this title.”). On June 26, 2024, now represented by counsel, Mother filed objections to Father’s proposed final order. Mother argued Father’s “proposed order d[id] not fully comport with the parties’ agreement on the record” from the March 26 hearing. She argued the parties only agreed (1) to a standard possession order, (2) that Father would be primary 4 conservator, and (3) that Mother would pay child support to Father “based on her 2023 W2 earnings.” She objected to the inclusion of the above paragraph and one paragraph pertaining to her possession over weekends. Mother filed her own proposed final order, which was identical to Father’s except it removed the past child-support paragraph and replaced the possession paragraph with the requisite language under Texas Family Code Section 153.313(1). See id. § 153.313(1). She also alleged “[Father] has not actually paid any child support to [Mother] in several years and currently owes over $11,000.00 in past due arrearages.” On June 28, 2024, Mother supplemented her objections and added a request for attorney’s fees. At the following motions hearing on July 18, 2024, Father’s attorney stated he was withdrawing his proposed order and motion to enter a final order. He stated Father did not consent to Mother’s proposed final order, and thus, “the Court has no jurisdiction or authority to enter [Mother’s proposed final order].” He urged the trial court to “set a final hearing to determine . . . [t]he amount of child support [Mother] should pay[,] [w]hen that child support begins[,] and when [Father]’s child support obligation ended.” Mother’s attorney argued the agreement made on March 26 was enforceable, and he stated he would be filing a motion for entry of judgment and request for attorney’s fees. That same day, Mother filed a motion to enter a final order, and her proposed final order, which was identical to the one she previously filed. On August 15, 2024, the trial court held a hearing on Mother’s motion to enter a final judgment. The parties argued about whether it was clear from the March 26 hearing that Father asked Mother to pay child support for the years A.S.P. lived with Father, when Mother’s child support payments should start, and whether the trial court rendered a final 5 judgment on the agreements on March 26. At the hearing’s conclusion, the trial court found it had orally rendered judgment on March 26, and it signed Mother’s proposed final order to ostensibly memorialize that judgment. The order required Mother to pay $99.63 in monthly child support until A.S.P. reaches the age of eighteen, marries, or dies, with her first payment due “on May 1, 2024.” With both parties’ consent, the trial court crossed out the start date for Mother’s child support and told the parties they “can figure it out.” The trial court also granted Mother’s requested attorney’s fees. The order stated “all relief requested and not specifically granted by the Court above is DENIED” and “[a]ll claims and all parties related to this suit are disposed of and resolved, with finality, under this judgment, which is appealable.” Father filed objections to the order, and later, a “Brief in Support of his Objections to Proposed Order and TRCP 329b(g) Motion to Modify, Correct or Reform Judgment.” In the latter filing, Father argued the final order “d[id] not comply with the court’s oral rulings” at the March 26 hearing because the parties only agreed to “a standard possession order” and “the amount of [Mother]’s child support.” Father objected to the following provisions in the final order because, he contended, the parties did not agree to or discuss them at the March 26 hearing: 1. Duration of Support Obligation 2. Withholding for Child Support 3. Child Support Payment Instructions 4. No Offset 5. Obligation of the Estate 6. Termination of Support on Marriage 7. Medical and Dental Support 8. Duration of Medical Support Obligation 9. Private Health Insurance 10. Duty to Furnish Information 11. Private Dental Insurance 12. Duty to Furnish Information 6 13. Notice of Termination of Lapse of Insurance Coverage 14. Allocation of Additional Health Care Expenses 15. Secondary Health or Dental Insurance Coverage 16. Constructive Trust of Insurance Payments Received 17. Maximizing Health Insurance Coverage 18. Medical Notification 19. HIPAA Notification 20. Allocation of Tax Exemption for Dependent 21. Required Notices to the Parties 22. Attorney’s fees 23. Relief Not Granted He further contended “[t]here was no agreement”: (1) “regarding when [Father]’s child support ends,” (2) “regarding when [Mother]’s child support obligation begins,” (3) “regarding to what amount of child support credit [Father] is entitled,” (4) “that he is obligated to pay [Mother] child support for the 2 ½ years his son was living with him,” (5) “regarding attorney’s fees or court costs,” (6) “that the court render any final judgment,” and (7) “that the relief [Father] requested was to be denied.” The trial court denied the motion, and this appeal ensued. II. DISCUSSION Father argues the final order “was not in strict or literal compliance with the terms recited into the record” and “lacked essential terms that are vitally important elements in a child support and custody case.” He challenges the twenty-three terms listed above 2 and further argues the final order is “missing” (1) when Father’s “child support was to have ended because he had voluntary possession of the child beginning [on] January 4, 2021,” 2 Father confusingly lists twenty-six terms the trial court improperly added, but three of those terms did not correspond to provisions in the final order, and he repeated those terms in the following section of his appellate brief related to the “missing” terms in the final order. We have organized Father’s argument to the best of our ability. 7 and (2) when Mother’s child support payments were to begin. 3 In other words, Father argues the parties entered into an agreed judgment on the record, and the final order included terms outside of that agreement or excluded terms the parties agreed to. Mother did not file an appellate brief. Here, the trial court treated Mother’s proposed final order as an agreed judgment based on the terms purportedly agreed to at the March 26 hearing. And here, the parties only agreed to: (1) “a standard possession order for parties that live 100 miles or more apart,” (2) Father to be primary managing conservator, and (3) Mother to pay child support $99.63 in monthly child support. 4 “A court ‘cannot render a valid agreed judgment absent consent at the time it is rendered.’” Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (quoting Padilla v. LaFrance, 907 S.W.2d 454, 461–62 (Tex.1995)); see Gunter v. Empire Pipeline Corp., 310 S.W.3d 19, 22 (Tex. App.—Dallas 2009, pet. denied). “When a consent judgment is rendered without consent or is not in strict compliance with the terms of the agreement, the judgment must be set aside.” Chisholm, 209 S.W.3d at 98; see In re C.E.H., No. 09- 19-00120-CV, 2020 WL 5666081, at *3 (Tex. App.—Beaumont Sept. 24, 2020, no pet.) (mem. op.) (providing that an agreed judgment must be “in strict compliance with the terms of the [parties’] agreement”). A judgment is not “in strict or literal compliance” with 3 To the extent Father challenges the trial court’s award of attorney’s fees, we hold that he has inadequately briefed this issue. See TEX. R. APP. P. 38.1(f), (i). At the hearing on Mother’s proposed final judgment, the trial court heard testimony and argument related to Mother’s attorney’s fees, and Mother’s attorney presented evidence of his hourly rate, and his time spent on this case. Father’s attorney vigorously contested the fees and cross-examined Mother’s attorney. On appeal, Father, without citing to authority, merely argues “there was no agreement regarding attorney’s fees or court costs.” In other words, Father has failed to assert how “disagreeing” to attorneys’ fees renders the trial court’s decision erroneous or an abuse of discretion. See id. 4 Mother’s 2023 W2 was not entered into the record. However, Father does not dispute or challenge the amount of her monthly child support on appeal. 8 the terms recited into the record when the judgment improperly removes or adds material terms. See Chisholm, 209 S.W.3d at 98 (holding the trial court’s judgment was not in strict or literal compliance with the parties’ agreement because “the judgment improperly removed and added material terms”); In re Marriage of Mann, No. 13-21-00442-CV, 2023 WL 403004, at *2 (Tex. App.—Corpus Christi–Edinburg Jan. 26, 2023, no pet.) (mem. op.) (“A judgment is not in strict or literal compliance if it improperly removes or adds material terms.”); In re C.E.H., 2020 WL 5666081, at *3. Whether a term is “material” to an agreement is “determined on a case-by-case basis.” In re Marriage of Mann, 2023 WL 403004, at *2. “But generally, the material terms are those that the parties would reasonably regard as the vitally important ingredients of their bargain.” Id. (citing Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016)). “A trial court abuses its discretion by entering a judgment that departs from these terms.” Id. We turn to Father’s objections to the twenty-three terms listed above. While we agree the parties did not discuss these terms at the March 26 hearing, Father has failed to explain how these terms are “material.” See Chisholm, 209 S.W.3d at 98; In re Marriage of Mann, 2023 WL 403004, at *2; In re C.E.H., 2020 WL 5666081, at *3. Father merely argues, as he did at the trial level, that because he did not agree to these twenty-three provisions, we must remand the final order back to the trial court on those issues. But “[t]he law does not require that the parties agree to all of the terms necessary to effectuate the purposes of the agreement; it is necessary only that the parties reach an agreement as to all material terms.” Glynn v. Glynn, 651 S.W.3d 348, 354 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (emphasis added). We fail to understand, for example, how the “Medical” or “HIPAA Notifications” are material to the parties’ agreements related to 9 possession and child support. 5 See id.; Kramer v. Kastleman, No. 03-13-00133-CV, 2017 WL 5119211, at *9 (Tex. App.—Austin Nov. 3, 2017, pet. denied) (mem. op.) (“[W]e conclude that the divorce decree did not add material terms to the settlement agreement or conflict with the parties’ intent but instead added clarifying terms necessary to effectuate the purpose of the settlement agreement based on agreement in open court.”). Moreover, many of these terms are non-discretionary provisions required by the Family Code. See, e.g., TEX. FAM. CODE §§ 154.004, .007, .008. As to the “missing” terms, again, there was no discussion at the March 26 hearing as to when Father’s child support would end and when Mother’s would begin. Opposed to the above provisions, however, the start or end date for child support payments are material or “vitally important ingredients” in a child custody and support order. See TEX. FAM. CODE §§ 154.001 (“Support of Child”); 154.006 (“Termination of Duty of Support”); In re Marriage of Mann, 2023 WL 403004, at *2; Glynn, 651 S.W.3d at 354; Kramer, 2017 5 These provisions state: Medical Notification IT IS ORDERED that each party shall notify the other party of any medical condition that requires a child to be hospitalized or to receive emergency and/or surgical treatment. HIPAA Notification IT IS ORDERED that, within 30 days from the date this Order is entered, each party shall execute the following instruments, pursuant to the Health Insurance Portability Act (HIPAA) and 45 C.F.R. Section 164.508: (a) all releases necessary to permit the other conservator to obtain health care information regarding the child subject to this suit; and (b) for each health care provider and for each child subject to this suit, an authorization for disclosure of protected health information to the other conservator. IT IS FURTHER ORDERED that each party shall designate the other party as a person to whom protected health information regarding the child may be disclosed whenever the party executes an authorization for disclosure of protected health information pursuant to HIPAA and 45 C.F.R. Section 164.508. 10 WL 5119211, at *9. Neither party consented to a start date for Mother’s child support payments (and the end of Father’s child support payments), and instead of ruling, the trial crossed out the start date for Mother’s child support payments and told the parties to “figure it out.” See Chisholm, 209 S.W.3d at 98; Gunter, 310 S.W.3d at 22 (“The trial court cannot render an agreed judgment after a party has withdrawn its consent to a settlement agreement.”); In re Allsup, 926 S.W.2d 323, 326 (Tex. App.—Texarkana 1996, no writ) (“[L]ack of a written agreement or agreement made in open court and entered into the record precludes the enforcement of such an agreement on the issue of child support. . . . Once the existence of an oral settlement agreement is disputed, it becomes unenforceable.”). Accordingly, because there was no consent or agreement on the record as to when the parties’ child support payments would end or begin, we reverse and remand the final order to the trial court to determine that issue; but because Father failed to explain how the other twenty-three provisions were material to the parties’ agreement and most, if not all, of those provisions are required under the Family Code, we affirm the final order in all other respects. See Chisholm, 209 S.W.3d at 97–98 (reversing the parties’ alleged agreed divorce judgment because the wife did not agree to the trial court’s division of property and remanding to the trial court for further proceedings); In re C.E.H., 2020 WL 5666081, at *8 (affirming the portions of the judgment that aligned with the parties’ agreement on the record and reversing and remanding the provisions which delineated from the parties’ agreement). 11 III. CONCLUSION We reverse and remand the final order to the trial court to determine when Father’s child support payments end and when Mother’s child support payments begin. We affirm the judgment in all other respects. 6 JON WEST Justice Delivered and filed on the 15th day of October, 2026. 6 Father also argues that the trial court erred “when it sua sponte added that it was rendering judgment when no party requested or agreed to such term” at the March 26 hearing. Father, however, did not object when the trial court stated it was rendering judgment. To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling. See TEX. R. APP. P. 33.1(a). “To be considered timely, the request, objection, or motion generally must be made at the earliest possible opportunity, thereby allowing the trial court an opportunity to cure the error.” Guillory v. Boykins, 442 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Father implicitly argues he preserved this issue at the August 15, 2024 hearing on Mother’s motion to enter a final judgment, or when he filed objections to Mother’s proposed final order. However, that hearing occurred almost five months after the March 26 hearing, and Father’s written objections were filed after the August 15 hearing. See id. Moreover, the March 26 hearing was a final hearing on Father’s motion to modify, and after the hearing, Father filed a motion to enter his final order and a proposed final order. Essentially, before Father objected to the trial court’s oral pronouncement that it was “rendering judgment,” he attempted to enter his own final judgment based on the “judgment rendered” at the March 26 hearing. Generally, parties are barred “from adopting positions on appeal that contradict their prior actions or positions in the trial court.” Lerner v. Schott, No. 01-24-00342-CV, 2026 WL 958567, at *2–3 (Tex. App.—Houston [1st Dist.] Apr. 9, 2026, no pet.) (citing In re G.X.H., 627 S.W.3d 288, 301 (Tex. 2021)). Thus, to the extent Father raises this as a separate issue, we overrule it. See TEX. R. APP. P. 33.1(a); Guillory, 442 S.W.3d at 689; Lerner, 2026 WL 958567, at *2–3. 12