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Enforcement
A party seeking enforcement of a child support order may join in the same proceeding any other claims and remedies against the party who failed to comply with the order [ Fam. C. § 157.003(a) ]. Thus, a motion for enforcement of child support may be combined with a motion to enforce or modify other orders rendered in the divorce case. Moreover, a motion to enforce a child support obligation may seek any one or more of the following remedies [ Fam. C. § 157.001(b),(c), 157.162(b) ]:
- Contempt of court;
- Money judgment for delinquent child support;
- Withholding support from the obligor's income;
- Requiring of bond or other security for payment;
Other remedies not affected. A motion for enforcement is not an "election of remedies" and does not preclude a subsequent motion seeking other remedies for the same arrearage. In addition to a motion for enforcement, a party may use any other civil or criminal proceeding to enforce a final order [ Fam. C. § 157.003(b) ], including remedies such as
- Giving notice of withholding;
- Petitioning for revocation of license held by obligor, following obligor's failure to comply with agreed or court-ordered plan for payment of arrearages.
Offer to pay portion of arrearage.
In the past, obligors facing a contempt charge often would offer to pay a fraction of the arrearage immediately in exchange for reducing the amount of the arrearage and dropping the contempt charge. Needing some money quickly, obligees often capitulated. Note that now a court may not reduce or modify the amount of child support arrearage in a contempt proceeding [ Fam. C. § 157.262(a) ].
Authority for Contempt for Failure to Pay Child Support
Any child support order may be enforced by contempt under the Fam. C. § 157.001(c) ], provided, of course, that it is definite, clear, and as precise as possible to inform the obligee of what conduct or action is required [ Ex parte Wessell, 807 S.W.2d 17, 19 (Tex. App.--Houston [14th Dist.] 1991, orig. proceeding) ; Ex parte Jimenez, 737 S.W.2d 358, 361 (Tex. App.--San Antonio 1987, orig. proceeding) ; Ex parte Slavin, 412 S.W.2d 43, 43 (Tex. 1967) ].
Time Limitations for Bringing Contempt Motion
A court retains jurisdiction to hold the obligor in contempt for failure to comply with a child support order if a motion for enforcement is filed within six months after [ Fam. C. § 157.005(a) ; see In Interest of Dickinson, 829 S.W.2d 919, 920-921 (Tex. App.--Amarillo 1992, orig. proceeding) ]:
- The child becomes an adult, or
- The child support obligation terminates pursuant to the order itself or by operation of law.
When obligation terminates.
A child support obligation ``terminates'' when the parent's ongoing obligation to support the child ceases, rather than when a court order to pay a specific amount is modified [ Ex parte Tanner, 904 S.W.2d 202, 204 (Tex. App.--Houston [14th Dist.] 1995, orig. proceeding) ; see Fam. C. § 151.003(b).
Distinction Between Civil and Criminal Contempt
A contempt motion may request that a delinquent child support obligor be punished for civil contempt, criminal contempt, or both. The difference between the two types of contempt lies in the nature of the punishment and, to some extent, in procedural safeguards afforded the obligor.
Civil contempt. An obligor who is punished for civil contempt for failure to pay child support is incarcerated until the person pays the amount of delinquent child support ordered by the court. Thus, civil contempt is remedial and coercive in nature. It exerts the judicial authority of the court to persuade the contemnor to obey a court order for the benefit of an opposing litigant. Since imprisonment is conditioned on the performance of the court order, civil contemnors ``carry the keys of prison in their own pockets'' [ Shillitani v. United States, 384 U.S. 364, 368, 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966) ; Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976) ].
Combination.
A single contempt order may be both criminal and civil. A typical combination order confines the contemnor to jail for a definite period and thereafter until the child support arrearages are fully paid [see Ex parte Trevino, 665 S.W.2d 227, 229-230 (Tex. App.--San Antonio 1984, orig. proceeding) ; cf. Ex parte Englutt, 608 S.W.2d 610, 610-611 (Tex. 1980) --when order imposes either definite period of confinement or confinement until payment of arrearage, contemnor may comply with either option to obtain release].
Contemnor's right to jury trial.
When the contemnor is charged with multiple acts of criminal contempt such that punishment could run consecutively rather than concurrently, confinement could total more than six months [see [c], below]. In such cases, Texas courts consider the charge ``serious,'' entitling the contemnor to trial by jury [Ex parte Sproull, 815 S.W.2d 250, 250 (Tex. 1991).
Terms for Purging Civil Contempt
Ordinarily, to purge the contempt and be released from confinement, the obligor must pay the arrears of support. However, the trial court has discretion in setting the conditions under which a child support obligor may purge the civil contempt. The court is not required to condition compliance with a contempt order on the obligor's payment of the full amount of child support arrearages, but instead may allow the obligor to purge the contempt by paying a lesser amount than is due.
A contemnor may be punished for criminal contempt by a fine of not more than $500 or by confinement in the county jail for not more than six months, or both, for each act of contempt [ Gov. C. § 21.002(b), (e) ; Smith v. Holder, 756 S.W.2d 9, 11 (Tex. App.--El Paso 1988, no writ) ]. A trial court lacks jurisdiction to assess a fine of more than $500 for each violation and a fine in excess of the maximum amount is void [ Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995) --trial court directed to reduce fine assessed under order alleging six counts of contempt to $3,000].
Confinement for multiple acts.
Punishment by confinement for multiple acts of contempt may be set to run concurrently, so that the total period of confinement does not exceed six months, or consecutively, so that the total period of confinement exceeds six months [ Gov. C. § 21.002(b), (e) ].
Order Being Enforced Must Be Clear and Specific
To be enforceable by contempt, the underlying written decree or order ordering child support must:
- Set forth the terms of compliance in clear, specific, and unambiguous terms so that the person charged with obeying the decree knows exactly what duties and obligations are imposed by it [ Ex parte MacCallum, 807 S.W.2d 729, 730 (Tex. 1991) ; Ex parte Slavin, 412 S.W.2d 43, 44-45 (Tex. 1967) ].
- Contain a clear and definite order requiring the party to comply with the specified terms [ Ex parte Franklin, 683 S.W.2d 33, 34-35 (Tex. App.--Tyler 1984, orig. proceeding) ; see Ex parte Whitehead, 908 S.W.2d 68, 71 (Tex. App.--Houston [1st Dist.] 1995, orig. proceeding) --contempt findings for failing to pay insurance premiums were void because divorce decree did not order father to pay specified amount of money to a specified person at specified times, but simply ordered father ``to maintain at all times … medical and health insurance coverage'' on children].
Order must specify payment terms.
An order to pay child support must state when and to whom payment must be made to be enforceable by contempt [ Squires v. Squires, 673 S.W.2d 681, 684 (Tex. App.--Corpus Christi 1984, no writ) ].
Clarification Orders
A court may clarify an order it rendered in a SAPCR proceeding if the court finds, on the motion of a party or on the court's own motion, that the order is not specific enough to be enforced by contempt [ Fam. C. § 157.421(a) ]. The court may clarify the order by rendering an order specific enough to be enforced by contempt [ Fam. C. § 157.421(b) ], either by clarifying the terms of the prior order or by adding new, clarifying language to the original order. However, the court may not change the substantive provisions of the order that it clarifies, and any attempted change is not enforceable [ Fam. C. § 157.423 ].
Timing of clarification order. The court may issue a clarification order before a motion for contempt is made or heard, in conjunction with a motion for contempt, or after the denial of a motion for contempt [ Fam. C. § 157.424 ].
Clarification order may not be retroactive. A clarification order may not be retroactive for the purpose of enforcing it by contempt [ Fam. C. § 157.425 ]. In addition, the court must provide that a clarification order may not be enforced by contempt until a reasonable time for compliance with the order has been provided to the person against whom the order is directed [ Fam. C. § 157.426 ].
Considering Money Judgment for Unpaid Child Support
A periodic child support payment that is not timely made constitutes, by statute, a final judgment for the amount due and owing, including interest [ Fam. C. § 157.261(a) ; see Fam. C. § 157.267 ]. A child support obligee may confirm the amount of child support arrearage and obtain a cumulative money judgment for the entire amount by filing a motion for enforcement of child support [ Fam. C. § 157.263(a) ].
Components of cumulative judgment. In cumulating and confirming arrearages to a money judgment, the court must include [ Fam. C. § 157.263(b) ]:
- Unpaid child support not previously confirmed.
- The balance owed on previously confirmed arrearages or lump sum or retroactive support judgments.
- Interest at 12% per annum simple interest.
Court may not modify arrearage.
The court has no authority to reduce or modify the amount of arrearages in rendering the judgment [ Fam. C. § 157.262(a) ; see Matter of Marriage of Vogel, 885 S.W.2d 648, 651 (Tex. App.--Amarillo 1994, den.) ; Attorney General v. Besaw, 877 S.W.2d 32, 35 (Tex. App.--Beaumont 1994, no writ) ]. However, the amount may be subject to a counterclaim or offset [ Fam. C. § 157.262(b) ].
Parents may not settle child support claims until arrearage cumulated into money judgment. Parents are prohibited from settling claims for child support arrearages before the unpaid amount has been confirmed and cumulated into a final judgment or until the courts have lost jurisdiction to enforce the unpaid child support debt. Requiring the trial court to confirm arrearages and render a money judgment before such agreements may be entered into protects the interests of the child by encouraging the payment of child support and protects the interests of the custodial parent by equalizing the bargaining positions of the parties [ Williams v. Patton, 821 S.W.2d 141, 146 (Tex. 1991) ].
Time Limits for Obtaining Money Judgment
A motion seeking confirmation and cumulation of child support arrearages is barred unless filed before the expiration of four years after either [ Fam. C. § 157.005(b) ; Castillo v. Castillo, 714 S.W.2d 440, 441-442 (Tex. App.--San Antonio 1986, no writ) ]:
- The child becomes an adult.
- The child support obligation terminates pursuant to the order itself or by operation of law.
Court retains jurisdiction over judgment.
A court that renders an order for the payment of child support arrearages retains jurisdiction until the arrearages are paid in full as required by the order [ Fam. C. § 157.269 ].
Judgment Collectible by Withholding or Execution
Attempts to collect a judgment for arrearages may be made in several ways, including:
- Enforcement of the income withholding provision that is required to be included in a judgment for arrearages [ Fam. C. §§ 157.264, 158.005, 158.311(b)]
- Any means available for the enforcement of a judgment for debts, including levy of execution on personal and non-exempt real property of the judgment debtor, assisted by the statutorily imposed child support lien [ Fam. C. § 157.264 ; Prop. C. § 42.005]
Child support lien.
When an abstract of the judgment for past-due child support or a child support lien notice is filed, a child support lien is perfected [ Fam. C. § 157.316 ; see Task J5, Enforcing Child Support Through Child Support Lien]. The lien attaches to all non-homestead real property and to all personal property, including a claim for negligence, personal injury, or workers' compensation (or an insurance award for the claim) owned by the obligor [ Fam. C. § 157.317 ]:
- On or after the date the lien notice or abstract of judgment is filed with the county clerk of the county in which the property is located.
- As to property or claims in litigation, on or after the date the lien notice or abstract of judgment is filed with the court clerk.
- As to property of the obligor in the possession or control of a third party, from the date the lien notice is filed with that party.
Attorney's Fees and Costs
Attorney's fees incurred in the enforcement of a court-ordered child support obligation may also be collected in an order to withhold earnings, subject, of course, to the maximum withholding permitted by law [ Tamez v. Tamez, 822 S.W.2d 688, 691 (Tex. App.--Corpus Christi 1991, den.)]. The Family Code does not provide any mechanism for adding the obligee's attorney's fee to the amount of arrearages determined by the alternate ``notice and writ of withholding'' method.
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