Texas Divorce Attorney Blog
Sometimes Texas child-support disputes can continue well past the child’s eighteenth birthday. A Texas appeals court recently decided a case regarding back child support for children who were in their 50s.
This case dealt with a writ of income withholding and child-support liens. Pursuant to Tex. Fam. Code § § 158.301, a parent may file a notice of application of judicial writ of withholding if there is a delinquency in child support that is at least the total due for a month. The notice must include the amount of the arrearages and the amount to be withheld. Tex. Fam. Code § 158.302(1). The obligor may file a motion to stay the writ within 10 days of receiving the notice. Tex. Fam. Code § 158.307(a). The clerk of court may not deliver the judicial writ of withholding until a hearing has occurred. Tex. Fam. Code § 158.308.
According to the appeals court’s opinion, the trial court ordered the father to pay child support when the parents divorced in 1970.
Mother Seeks to Obtain Past-Due Child Support
The mother served the father with a Notice of Application for Judicial Writ of Withholding the day before Thanksgiving in 2018. The notice stated he owed $345,439.75 in child support and interest. He moved to stay the issuance of the writ, but his motion was four days late. He indicated the amount due was incorrect and that he had fulfilled his child-support obligation.
The mother argued the arrearages must be the amount listed in her notice as a matter of law due to the father’s late filing.
The father argued he should be allowed to present evidence of the amount actually due. He argued 10 days was a short period, given the circumstances. He further argued the mother had put liens on his bank accounts, making it more difficult for him to hire an attorney. He asserted the court had not been deprived of the ability to hear evidence or the duty to hold a hearing by the late filing.
The trial court found the father had not filed his motion within 10 days and ordered the amount of the arrearages was the amount in the notice as a matter of law. The order also stated the mother was entitled to foreclose on the child-support liens.
The father requested a hearing. The court did not allow the father to present evidence at the hearing, stating he had the opportunity to do so at the previous hearing before the associate judge. After the court denied his motion for a new trial, the father appealed.
Father Appeals Trial Court’s Determination
He argued the trial court did not have jurisdiction to determine back child support, because the children had reached the age of majority more than 10 years earlier. The appeals court noted that the Texas Family Code allows a writ for income withholding to “be issued until all current child support and child support arrearages . . . have been paid.” Tex. Fam. Code § 158.102. Furthermore, a child support lien remains in effect until child support and back child support has been paid. Tex. Fam. Code § 157.318(a). The trial court therefore did have jurisdiction to issue writs and liens.
The father argued the statutory ten-day timeframe for filing a motion to stay was unreasonable because he only had 10 days to hire an attorney, file the motion, and provide proof of all the child support payments he had made following his divorce 40 years earlier.
Appeals Court Disagrees with Trial Court’s Rigid Application of Family Code
The appeals court noted that the short timeframe ensures children receive prompt financial support in current or recent cases, but the law was “abused” in a case where the children are nearing retirement age and the child support obligation is “decades old.” Although the appeals court had to enforce the statute, it also had to determine whether the delay divested the trial court of jurisdiction to hear evidence regarding the accuracy of the amount listed in the notice. In previous cases, the appeals court held failure to timely file a motion to stay does not divest the court of jurisdiction. The untimely filing did not affect the court’s jurisdiction to determine the amount of arrearages. Instead, it deprived the father of the right to assert defenses.
The appeals court found a discrepancy between the reporter’s record and the trial court’s order. The order stated the trial court had heard evidence on the amount of arrearages, but the record showed it had determined the arrearages as a matter of law without hearing the father’s evidence. The appeals court found the trial court was correct in concluding the father could not present defenses, but erred in not allowing him to present evidence on the amount of arrearages.
The appeals court also found the trial court erred in allowing the mother to foreclose the liens without hearing the father’s defenses. The record showed that the father was not allowed to contest the arrearage amount listed in the lien at the hearing. The appeals court noted the trial court has a nondiscretionary duty to set a hearing regarding the lien. The statute does not preclude the father from asserting his defenses or presenting evidence regarding the amount of arrearages with regard to the lien.
The appeals court found the trial court erred in precluding the father from presenting evidence about the amount of arrearages stated in the notice of application for income withholding and by ordering that the mother could foreclose on the liens against his bank accounts without hearing his evidence or defenses. The appeals court further found an abuse of discretion because there was insufficient evidence to support its finding on the amount of arrearages. The appeals court vacated the order and remanded the case.
Child-Support Arrears Cases Can be Complex – Call McClure Law Group Today
This case shows that child-support disputes can drag on for many years. If you are having difficulty collecting child support or if you receive notice related to child support you are alleged to owe, a Texas child support attorney can help you. Call McClure Law Group at 214.692.8200 to set up a consultation.