Articles Posted in Child Support

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The Texas Office of the Attorney General (OAG) is responsible for certain child support services, including collecting and enforcing Texas child support orders.  Recipients of certain public assistance programs may automatically qualify for the OAG’s child support services, but others have to apply for the services.  The OAG has a variety of ways to enforce child support, including filing liens, issuing writs of withholdings to the parent’s employer, suspending driver’s licenses, and intercepting tax refunds or other money from state or federal sources.

In a recent case, a father challenged the OAG’s enforcement actions against him.  The father was ordered to pay child support beginning in December 1996.  The court also issued an Order Enforcing Child Support Obligation in October 1999, including a cumulative money judgment for $15,000 plus interest against the father in favor of the Attorney General.

In 2015, the OAG sent a notice of child support lien to the father’s bank and issued administrative writs of withholding to his employers.  The OAG also filed a petition with the State Office of Administrative Hearings for the father’s driver’s license suspension.

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The Texas Family Code provides guidelines to assist courts in calculating child support that are based on a percentage of the parent’s net monthly resources.  The statute sets forth what types of income are included and excluded from the parent’s net monthly resources.  In many families, it is fairly straight-forward to determine what is included in the calculation.  If a parent’s only income is from the wage or salary he or she earns from employment, it is relatively simple to identify the net monthly resources.  Some families, however, have more complicated financial circumstances making it less clear what should be included.

In a recent case, a father appealed the inclusion of an annuity payment in his net monthly resources for purposes of the child support calculation.  Prior to the marriage, the father settled a claim for a work-related accident with his employer.  As a result of the settlement, the father receives $6,970 per month from an annuity.  The payments will continue until either the the father’s death or June 1, 2044.

The couple had one child during the marriage.  The mother filed for divorce less than a year after the couple was married.  Although the couple reached agreement on some issues, they were unable to agree on child support and medical support.  The trial court found the annuity payments were “resources” under Texas Family Code 154.062 and included them in the father’s resources when calculating the child and medical support payments.

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Sometimes, a parent may face significant changes in his or her financial circumstances that affect the ability to pay a Texas child support obligation.  If the change in the parent’s financial circumstances is both substantial and material, the court may modify the obligation.

In a recently-decided case, a father sought to modify his child support obligation after he was determined to be disabled.  The original support order was entered in 2006.  The court entered an agreed order in 2012, ordering the father to make payments on the support he owed and increasing his monthly obligation based on his net resources.

Soon after the 2012 order was entered, the father had a stroke.  The Social Security Administration (SSA) found him to be disabled and awarded him Supplemental Security Income (SSI) benefits.  He moved to modify the support order on the grounds his circumstances had materially and substantially changed.

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Parents have a duty to support their minor children and generally cannot avoid that duty through intentional unemployment or underemployment.  If a Texas divorce court finds a parent is intentionally unemployed or underemployed, it may consider that party’s earning potential instead of his or her actual income in determining child support.

A mother recently appealed a trial court’s finding that she was intentionally underemployed.  The parents reached a mediated settlement agreement on all issues except child support.  After a bench trial, the court ordered the father to pay child support for five months. There were some circumstances under which the child support could end earlier, and after the five months passed, there was to be no child support paid by either parent.

The court provided the reasons it varied from the guidelines in its findings of fact.  It found the parties had agreed to having the children for equal amounts of time.  The father had been found to be disabled.  He received disability income, and his health issues prevented him from earning additional income.  The mother had two degrees and could work as a licensed school teacher.  She had not presented evidence of disability nor a physical handicap that would keep her from earning additional income.  The mother had been awarded the marital residence and newer vehicle.  The father had to seek new housing to get equal visitation with the children as well as obtain another vehicle.  The trial court found the mother was underemployed and could have resources comparable to those of the father.

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After a court issues a Texas child support order based on an agreement of the parties, the trial court may only modify the order if there has been a material and substantial change in circumstances.  If there has been such a change, the court has the discretion to modify the order.  The court’s analysis depends on the resources of the obligor.  If the parent paying child support has net monthly resources equal to or less than an identified amount, currently $8,550, the court must base the presumptive award on a percentage of the net resources and the number of children.  If the net monthly resources are greater than this amount, then the court has the discretion to order amounts greater than the presumptive award, depending on the parties’ income and the “proven needs” of the children.  Thus, the court must determine the proven needs of the children before awarding an amount greater than that set by the guidelines.  If the children’s needs exceed the presumptive award, the court allocates the difference between the parties.  No party can be required to pay more than 100% of the proven needs of the children.  Unfortunately, neither the legislature nor the courts have clearly defined “needs,” but the Texas Supreme Court has stated that needs are not determined by the family’s lifestyle or the parents’ ability to pay.

In a recent case, a father challenged a modification that ordered him to pay an amount greater than the monthly guidelines.

The father also challenged whether there was a material and substantial change in circumstances, but the appeals court readily found that a significant increase in the father’s income since the Agreed Order was sufficient to support a modification.

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In some Texas child support cases, the court may find a party to be “intentionally underemployed.” Although child support is generally based on the party’s income and resources, the calculation may be based on earning capacity if the party is found to be intentionally underemployed or unemployed.

A father recently challenged a child support obligation in which he was found to be intentionally underemployed.  The father had petitioned for the bill of review on the grounds the child support determination had been based on an IRS tax-lien notice that contained incorrect information.  He alleged he had amended his earnings information with the IRS and asked the court to order a reasonable amount based on his true earnings. The trial court declared the child-support portion of the divorce decree void, reopened the issue of child support, and ultimately issued a new order.

After the court declared the child support void, the father filed an amended counter-petition, but did not allege any of the children had been emancipated or request a credit for amounts already paid.  The mother did not file an amended pleading.

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A parent can seek enforcement of the custody provisions of a court order through contempt of court.  Texas custody attorneys know, however, that contempt is only available if the original order is clear and specific enough to allow the other person to readily know what duties or obligations are expected of him or her.

In a recent case, a father sought contempt against his child’s mother.  The father moved for enforcement of possession or access to his child.  He asked that the court hold the child’s mother in contempt for violating his visitation rights in the divorce decree.  In the alternative, he requested that the court issue a clarifying order if it found the previous order was not specific enough to enforce through contempt.  The mother moved to dismiss the motion. The trial court granted the mother’s oral motion for dismissal of the father’s motion and the father appealed.

The appeals court noted that the trial court’s refusal to hold the mother in contempt was not appealable, but the dismissal of the father’s request for clarification was.

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Enforcing a child support order against a person who fails or refuses to pay can become time-consuming and expensive.  Texas family law provides multiple options for enforcing a child support order.  It also allows a person enforcing a child support order to recover reasonable attorney’s fees and costs if the court finds the other party “failed to make child support payments.” TEX. FAM. CODE § 157.167(a).

When a child support payment is not timely made, it becomes a final judgment by operation of law. TEX. FAM. CODE  § 157.261(a) In a recent case, the mother sought a writ of execution on the final judgment that arose as a result of the father’s failure to pay the child support.  The trial court found she had “a valid enforceable judgment” that was “wholly unsatisfied and subject to execution.”  The constable took possession of certain of the father’s property and held an execution sale.  Both the mother and father sought disbursement of the proceeds of the sale.

There was additional litigation related to the mother’s collection efforts.  The trial court ultimately ordered the father to pay $30,675 to the mother for attorney’s fees.  The trial court based the attorney’s fees on the attorney’s affidavit and timesheet.  The father appealed.

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In some Texas child support cases, attorney’s fees may be awarded.  When a party fails to make child support payments, the court is to order that party to pay the other party’s reasonable attorney’s fees and court costs in pursuing the child support.  The court may waive the requirement for attorney’s fees, however, if it finds good cause to do so and states its reasons.

In a recent case, a father challenged an award of attorney’s fees to the child’s mother.   The father was ordered to pay child support in the divorce decree.  He subsequently sued to recover child support payments that he claimed were in excess of his obligation.  The mother denied the claims and asserted a counterclaim for back child support, unpaid medical support, and attorney’s fees.  The trial court denied the father’s request for overpayments, determined the amount of arrearages that was owed, and awarded the mother that amount.  The trial court also found each party was responsible for their own attorney’s fees.

The mother appealed, arguing the trial court should not have credited the father for payments that were made directly to her rather than through the registry of state disbursement.  The appeals court affirmed that portion of the order but found the trial court abused its discretion in failing to award the mother attorney’s fees.  The appeals court ordered the trial court to award the mother reasonable attorney’s fees or find good cause for denying such an award.  The trial court held a hearing and awarded the mother more than $17,000 in attorney’s fees.  The father appealed.

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Sometimes a change in circumstances causes a parent to want to change the amount of child support they are paying or receiving.  There are limitations on when a Texas child support order may be modified, however.  When the parties had previously agreed to a child support order that is different from what would have been awarded under the child support guidelines, the court may only modify it if there have been material and substantial changes to the circumstances of the child or a person affected by the order.  The trial court must look at the circumstances at the time of the order and compare them to the current circumstances.  There must be relevant financial information for both periods in the record, as seen in a recent Texas appeal.

The parents had previously entered into a mediated settlement agreement (MSA).  The trial court signed an agreed order naming them joint managing conservators and setting forth visitation schedules and child support obligations.  The father was required to pay $490 per month until the child turned 18.  The father’s occupation and income were not identified in the MSA or the agreed order.  The MSA stated the mother was self-employed but did not provide details.

The mother petitioned for a modification of the child support about five years later.  The father did not file an answer or appear at the trial.  At the trial, the mother submitted documents from the child’s doctors detailing his diagnoses. She attested that the child saw a psychiatrist every two weeks.  She testified the child’s schedule on school days needed to be almost exactly the same each day.  She stated he needed “a very high level of care.”  She said she thought his disability would keep her from full-time employment.

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