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Texas Appeals Court Allows Adult Daughter to Pursue Outstanding Child Support

If a parent fails to pay court-ordered child support in Texas, the obligee may pursue a number of cumulative remedies.  The obligee may seek a contempt of court order, a cumulative money judgment, a child support lien against certain property, a judicial writ of withholding, and an administrative writ of withholding.  The court keeps jurisdiction to confirm the amount of arrearages and render a cumulative money judgment for a motion for enforcement that is filed within 10 years of termination of the obligation or the child reaching adult hood.  Tex. Fam. Code §157.005.

In a recent case, the appeals court allowed an adult to pursue the child support her father owed after her mother’s death.  The father was ordered to pay $250 per month in child support at the time of the divorce in 1980, but did not pay.  The mother initiated an enforcement action in 2011, but it was never heard and she died in 2016.

In 2017, the daughter, then 41 years old, served a notice of application for judicial writ of withholding on her father.  The father moved to stay the issuance of the income withholding order.  The daughter argued the father had failed to timely contest the notice so the arrearages sworn to in the notice had been determined as a matter of law.

Following a bench trial, the court found the father failed to make all of the required payments and that he had not timely filed the motion to stay.  The court granted the request for judicial writ of withholding and a child support lien.  The father appealed.

The father argued that the court did not have jurisdiction to render a judgment for child support arrearages when more than 10 years had passed since the obligation terminated.  The appeals court noted, however, that case law has that the ten-year limitation in § 157.003(b) only applies to cumulative money judgments for past-due child support under § 157.263.  The appeals court noted that liens and writs of withholding may be available beyond the ten-year period.

The daughter in this case requested a child support lien and judicial writ of withholding, not a cumulative money judgment.  Section 157.318 provides different time frames related to child support liens and judicial writs of withholding, allowing a lien to be effective and a writ to be issued until all current support and arrearages have been paid.  The appeals court therefore found that § 157.005(b) did not limit jurisdiction over this case and that the trial court had jurisdiction under § 157.318 and § 158.102.

The father also argued the daughter did not have standing to enforce the child support.  Under Tex. Fam. Code § 158.301(b)(4), the “obligee” may seek an income withholding.  An “obligee” is a “person . . . entitled to receive payment of child support.”

Pursuant to § 154.013, the obligation to pay child support does not terminate when the obligee dies, but continues on as an obligation to the child.  The father argued, however, that this statute was not enacted until 2001 and could not be retroactively applied.  Although the Texas Constitution prohibits the retroactive application of statutes that create new duties or obligations, the appeals court found a writ of withholding for past-due child support did not create a new duty or impose a new liability.  It is instead a method of “secur[ing] performance of a previously adjudicated liability.”

The appeals court also rejected the father’s argument that the daughter did not have standing to enforce the outstanding child support.  The appeals court found she was entitled to receive child support, and therefore an obligee with standing.

The appeals court also rejected the father’s argument the trial court erred in not allowing him to contest the amount owed.  There was evidence he had received notice by October 24 and he did not file his motion to stay within ten days of that date or of the date he received the sworn notice.  He therefore had not timely filed the motion and the court did not err in not letting him contest the amount.

The appeals court affirmed the trial court’s judgment.

A skilled Texas child support attorney can help you enforce a child support order.  If you are owed child support, call the attorneys at McClure Law Group at 214.692.8200 to schedule an appointment.

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