Articles Posted in Child Support

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classroomIn a recent Texas appeal, a father appealed a judgment that awarded the mother post-majority expenses for their child. The case arose from the parents entering into an agreed final decree of divorce and settlement affecting the parent-child relationship. There was a section titled “college education.” In this provision, the parties agreed that the father would pay 60% of the expenses required for their kids to enroll at and attend a public or private college, university, or graduate school as long as the kid remained enrolled in a course of study leading to a degree. The expenses were to include tuition, room and board, books, and other incidental fees. The father was to pay the school directly or reimburse the mother for any payments she made over her 40% share.

The college education provision wasn’t a part of the sections on property distribution or child support in the agreement. The parents signed the decree, thereby agreeing to all of its provisions.

In 2015, the mother sued to enforce the child support order, asking for reimbursement for health expenses and insurance premiums, in addition to college expenses. She later filed amended motions. The father filed an answer, asserting she wasn’t entitled to post-majority support, since she didn’t ask for contractual relief. He argued that the only relief sought was enforcement, rather than breach of contract.

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Downs syndromeIn a recent Texas appellate decision, a father raised four issues related to a lower court’s provision of child support for his adult disabled child, among other things. The couple was married in 1992 and had two kids, TWG and a minor daughter, EAG. In 2008, the father left the mother to move in with his girlfriend, only to move back in a few months later, claiming the other relationship was over. The mother and father signed a lease with a term of one year, but in another few months, the father left for his girlfriend again, which saddled the mother with $4,000 for the remainder of the lease.

The father had a child with his girlfriend and didn’t pay child support to either of his minor children with the mother until 2011, when the mother asked for child support through the Attorney General’s Office. The father began paying monthly child support but provided no other financial assistance and eventually sued for divorce. The mother counter-petitioned, asking for child support for both kids, a disproportionate share of the community estate, and damages from the father’s girlfriend.

The mother explained to the court that her adult son, TWG, had agenesis of the corpus collosum, a condition in which the fibers linking the right brain to the left brain had never developed. The son lived with his mother and would need support his whole life. He’d never gone to college and wasn’t employed. He saw a doctor every year and spent the night with the father in 2015 2-3 times in total. He required adult care, which cost $500 per month, and got a certain amount in SSI and SNAP benefits.

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Many people ask: Can my children decide where they want to live in a divorce? There are many ways for a court to consider children’s input about where they want to live.

The first way is simply allowing children to talk to the judge. Section 153.009 of the Texas Family Code allows a parent to request that a judge interview the child in chambers to determine the child’s wishes regarding certain aspects of custody. If a child is over the age of 12, it is mandatory that the judge interview the child on the request of a parent. A judge may also interview a child under age 12. It is important to know that 12-year old children cannot actually decide where they where they want to live. They will not be providing the “final say.” Instead, the child’s wishes will just be one factor that the Court considers in addition to other important information. Another thing to keep in mind is that this process can be traumatic for children. Sitting in a judge’s chambers can be very intimidating for a child, and a child could be negatively impacted by the pressure of such a weighty decision. However, many times, a child’s input can be very important in a child custody dispute, and so there are other means to obtain the information indirectly.

Another way to get a child’s input in child custody litigation is through a Child Custody Evaluation. In Texas, the only mental health professional that may make recommendations as to possession and conservatorship for children is a child custody evaluator. The Texas Family Code provides very detailed requirements for a child custody evaluation, which includes interviews of each parent and anyone living in a house with the child, interviews of the child, and observations of the home environment and each parent’s interactions with the child. The child custody evaluator will therefore be able to talk to children about where they want to live, and will do so in conjunction with a much broader study into the children’s home environment and what will ultimately be in the best interests of the children.

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boy holding flowersIn Interest of TAM involved requests to modify the parent-child relationship. The child in question was 11 when an order of modification was entered for the second time. The first time the parents asked for modification resulted in both parents keeping joint managing conservator status and lots of the rights they’d had in the original divorce decree.

However, that order gave the father two exclusive rights previously held by the mother, including the exclusive right to choose the child’s primary residence in the county. The court ordered that the mother wouldn’t pay child support at the time, given that she wasn’t able to support herself.

In 2012, the mother petitioned to modify the father’s right to designate residence. She’d moved to a different city, gotten a job, and wanted to modify custody so that the child could live with her. She believed that these changes were material and substantial and believed that modifying custody was in the child’s best interest. She also asked for child support. The father counter-petitioned, asking for a modification of child support from $0 to an amount provided by the child support guidelines

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handicap signsIn the Matter of Luna and Vicente Luna considered an appeal from a final divorce decree in 2015, which was memorialized in a written decree that granted a couple’s divorce, divided their property, and provided for support and conservatorship of their adult disabled child. The couple had married in 1980 and separated in 2014. During their marriage, the father started a construction company.

By the time of the divorce, the couple disagreed about the company’s ownership. The father claimed he’d sold half of the company to his son, but he later testified the son was an employee earning $23/hr. During cross-examination, the son admitted the name certificate did not include his name until 2015, and his father had responsibility for paying payroll taxes and had authority to write checks.

At trial, the father testified the construction company had paid no federal income taxes, nor had it entered profit and loss statements into the record. The total of the evidence came from introducing banking records for the construction company for 2013, 2014, and 2015.

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childIn the Texas appellate case of In re Aer, a father appealed a divorce decree in connection with an award of retroactive child support and the distribution of marital property. The mother and father sued for divorce. The court held a bench trial and appointed the couple joint managing conservators of the children. The mother was the parent with the exclusive right to designate the children’s primary address. She was also awarded over $50,000 in retroactive child support, attorneys’ fees, and 80% of the marital estate (according to the father).

The father appealed, claiming that the evidence for the child support award and property distribution was legally and factually insufficient. The appellate court explained that it would consider whether the trial court had enough evidence upon which to use its discretion and whether it had made a mistake in applying its discretion. It further explained that a trial court has broad discretion to award attorneys’ fees under Texas Family Code § 106.002. The mother’s attorney had provided testimony regarding his fees and claimed that the high fees were driven by the father’s conduct in not answering timely discovery and dumping unorganized documents on him. The court found there was no abuse of discretion in awarding $130,000 in fees to the mother.

The father also argued that the mother didn’t have pleadings to support her request for retroactive child support. The mother’s attorney had asked during closing arguments that child support be paid retroactively to June 2012, due to the father’s intentional unemployment or underemployment during that period. However, the father had not objected at trial to either the closing arguments or the mother’s request to include an order to pay retroactive child support, nor did he object at the time the trial court signed the divorce decree, including retroactive child support. The court concluded these complaints weren’t preserved for review.

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father and sonTroiani v. Troiani is a Texas case in which a father appealed an order granting the mother’s petition to modify the parent-child relationship and enforce a child support award. The father challenged the trial court’s order, which required that he pay private school tuition for his son.

The divorce decree was entered in 2013 and required the father to pay the mother $1,875 each month in child support. The court found his monthly resources were $7,500. The decree also awarded the mother real property and ordered her to refinance the mortgage and secure it in her sole name by a particular date or else sell it. The court also ordered the mother and father to execute a deed of trust to secure assumption so that the father could start foreclosure proceedings if the mother became delinquent in paying the mortgage.

The father later filed a motion to enforce the property division, payment of debt, and child visitation arrangements. The court ordered that neither of the parents owed the other money or debt besides what was specifically described in the order in connection with the real property. It ordered the father to assume payment of the mortgage and ordered that the mother wouldn’t be responsible for repayment. It also ordered the mother to vacate the home and pay rent to the father. The order didn’t specify who would receive the proceeds from the property sale.

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childIn Ochsner v. Ochsner, the Texas Supreme Court ruled on a child support order that required the father to pay for his daughter’s school and to pay through a registry when she changed schools.

The couple had divorced in 2001, and the divorce decree included a child support order. The father was to pay the mother $240 each month in two installments and would also pay the daughter’s preschool directly. After the daughter stopped going to that preschool, the father was to pay the mother $400 in two installments and also pay a registry the school tuition payments. The order stated that his failure to comply could result in his not getting credit for making the payment.

The daughter stopped going to the preschool, and the father kept making the $240 per month payments to the mother. Instead of paying the registry, the father paid the new school directly, making payments that were $20,000 more than what was required by the original order. The mother was contractually obligated to pay the tuition.

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It’s called superfecundation– while fertile, if a woman sleeps with two men during the same fertility cycle, she can conceive twins from two separate fathers. This is not very common, but it is not impossible. 1 out of every 13,000 cases involving twins involves superfecundation.

In New Jersey, a woman tried to collect child support from a man she believed to be the father of her twins. She was right, but only half right. DNA Test Results proved he was only the father of one of the twins, but not the father of the other.

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Many have heard the story of Devon Still and his daughter Leah—a four year old in a battle with cancer. Recently, it was reported that Devon Still ex, and mother of Leah, is accusing Mr. Still of failing to pay child support for many months.  The question that many are asking is whether Mr. Still’s financial support for his daughter outside of “child support” would offset his child support obligation.  If this occurred in Texas, what would a Court say?

In Texas, the answer is most likely no, and Mr. Still would be facing jail time for contempt of Court if he failed to pay court-ordered child support.  Hypothetically, Assume that Mr. Still is under an order to pay child support in Texas.  Would he have any defense for his failure to pay (other financial support, medical support, etc.)?  The Texas Family Code has specific defenses for the failure to pay child support.  These include voluntary relinquishment by the obligee (party owed support) to the obligor (party responsible for paying support).  Basically, if the obligee gives the obligor more time than ordered by the Court, the obligor can have a defense to failure to pay child support if he also provided actual support of the child.  In Mr. Still’s case, if he had possession of his daughter full-time due to the fact that her mother voluntarily relinquished their daughter to Mr. Still, then he would have an affirmative defense to the Court’s enforcement of his child support obligation. Continue reading →