Child Support Articles
Collection and Enforcement of Child Support for An Adult Child or Adult Children in Texas
Pursuant to § 157.005 of the Family Code the “court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past due child support until the date all current support and medical support and child support arrearages, including interest and any applicable fees and costs have been paid.” TEXAS FAMILY CODE §157.005. This provision was amended in 2005 and limits the court’s jurisdiction on this remedy to 10 years after emancipation of the child or children. However, under §158.102 and 158.305 of the Family Code, in Texas, whether it is Houston, Dallas, San Antonio, Ft. Worth, Austin, El Paso, Galveston, Midland, Odessa, Corpus Christi, or Waco, the court has jurisdiction to render an order that provides for income to be withheld from the disposable earnings of the obligor until all current child support and child support arrearages, including interest, have been paid”. TEXAS FAMILY CODE §§158.102, 158.305.
The time limits relating to the collection and enforcement of past due support are not in the nature of a statute of limitations and since they are not a statute of limitations, the right to not pay past due child support cannot vest. The following cases on child support collection and enforcement in Texas establish clear rights to collect and enforce unpaid child support. In the Interest of A.D., 73 S.W.3d 344 (Tex. 2002); In the Interest of S.C.S., 48 S.W.3d 831 (Tex. App.–Houston [14th Dist.] 2001), pet. denied sub. nom. Sprouse v. Sprouse, 92 S.W.3d 502 (Tex. 2002.); In the Interest of Kuykendall, 957 S.W.2d 907, 911 (Tex. App.-Texarkana 1997, no writ); In the Interest of M.J.Z., 874 S.W.2d 724, 726 (Tex. App.-Houston [1st Dist.] 1994, no writ); Sandford v. Sandford, 732 S.W.2d 449, 451 (Tex. App.-Dallas 1987, no writ). Ex Parte Wilbanks, 722 S.W.2d 221 (Tex. App.-Amarillo 1986, orig. proceeding).
The case law of Texas has established that the time limits set forth in the Family Code in §157.005, §158.102, §158.305, and their predecessors §14.40(b) and §14.41(b), are not a statute of limitations, but are rather definitions of how long the trial court will have jurisdiction over its ordered payments and enforcement and collection of past due child support.
The child in the Texas Supreme Court case of A.D. was 26 years of age at the time the past due and unpaid child support was sought to be collected. The father’s regular support obligation ended in 1990 and the enforcement period expired in 1994 while the four year limit was still in effect. The Family Code was amended in 1997, repealing the four year limit for enforcement for writs of income withholding. In 1998 the obligee sought to enforce the payment of the past due child support pursuant to the statutory amendments. The Supreme Court expressly held that the time periods contained in sections 157.005 and 158.102 of the Texas Family Code are not statute of limitations, and that “the passage of time gave the obligor no vested right to avoid his previously adjudicated child support obligation. 73 S.W.3d at 249.
In S.C.S. the children were 30 and 28 years old at the time the past due child support was sought to be collected and enforced. The obligor’s regular support obligation ended in 1987 and 1989, respectively and the enforcement periods expired in 1991 and 1993 while the four year limit was still in effect. The Family Code was amended in 1999, repealing the four year limit for enforcement by cumulative money judgment. In 1999 the obligee sought to enforce the payment of the past due child support pursuant to the statutory amendment regarding the time period for cumulative judgments. The parent who owed child support argued section 157.005 is a statute of limitations; therefore, the 1999 amendments to the section make it an ex post facto law prohibited by the Texas Constitution. Obligor contended his right to not pay child support arrears vested four years after his children turned eighteen, in 1987 and 1989, respectively. S.C.S., 48 S.W.3d at 833. The Houston Court of Appeals, in reviewing the section, found §157.005 has been “consistently interpreted by the a majority of jurisdictions in this State as defining the contours of the court’s jurisdiction, not as a time frame within which a party must file a claim or forever lose the right to do so. . . . In view of this authority, we now hold that 157.005 is not a statute of limitations; rather, it addresses how long a court has jurisdiction to enforce its orders.” 38 S.W.3d at 833, 834 (emphasis in original).
The time limit periods found in §14.41(b) are “not in the nature of statute of limitations but instead a limitation on the power of the trial court to hear the case. Accordingly we find [Obligor’s] argument that it afforded him a vested right is without merit.” In the Interest of Kuykendall, 957 S.W.2d at 911.
“An attempt to collect child support arrearage is different from the filing of a cause of action for money damages. . . An action for child support enforcement and collection is a motion filed in a matter over which the court has continuing jurisdiction.” In the Interest of M.J.Z., 874 S.W.2d 724, 726.
In M.J.Z., the delinquent child support payor argued to the Harris County District Court that §14.41 (now §157.005) is a statute of limitations that barred the collection of his child support. The Houston 1st Court of Appeals specifically rejected his argument regarding child support enforcement and collection. The Court of Appeals stated “Unlike a statute of limitations, the four year period contained in section 14.41(b) does not run from the accrual of a cause of action, but starts to run from the time the trial court’s jurisdiction would normally end.” Id. Similarly, the Court of Appeals in Houtchens v. Matthews, 557 S.W.2d 581 (Tex. Civ. App. -- Fort Worth 1977, writ dism’d.), specifically stated that amendments to the Family Code that create additional remedies for past due child support that has already accrued are to be applied retroactively. These remedies do not create a new cause of action. In the Interest of M.J.Z., 874 S.W.2d at 726. The September 1, 1999 amendment to §157.005 (§14.41's successor statute) deleted the four year provision and granted the trial court jurisdiction until all arrears, including interest, have been paid.
In Kuykendall, the obligor argued a previous family code amendment could not apply to child support enforcement and collection more than ten years overdue. The legislature in 1993 amended §14.41 and increased the time period for which past due child support could be claimed from ten years from the date it was due, to four years after the child reached 18 years of age or is otherwise emancipated. This provision significantly expanded the time period in which the court had jurisdiction over its orders for child support enforcement and collection. The court noted that the time limitations were not a statute of limitations provision, but instead a designation of how long the trial court had jurisdiction over its order that child support should be paid.
In Kuykendall, the obligor argued to the Lamar County district judge that he had a vested right to not pay past due child support because the ten year limitation period was a statute of limitations and created substantive rights. The father claimed that any child support that could not be collected prior to the 1993 amendment remained uncollectible after the amendment. The Texarkana court rejected this argument and held “that the ten year limit deleted by the 1993 amendments was not in the nature of a statute of limitations, but instead a limitation on the power of the trial court to hear the case”. Accordingly, we find Kuykendall’s [Obligor’s] argument that it afforded him a vested right is without merit.” Kuykendall, 957 S.W.2d at 911.
Just as it was a mischaracterization to characterize the ten year period as a substantive statute of limitations which could vest, it is also a mischaracterization by the obligor to claim that the time limitation of four years after the child reaches the age of 18 or is otherwise emancipated is a substantive statute of limitations with which substantive rights could vest. The time limits are only a definition of the time with which the trial court retains jurisdiction over its child support order. A trial court retains jurisdiction over unpaid child support until all arrears, including interest are paid, and there exists a statutory right to obtain liens and issue the writ of income withholding pursuant to §157.312, §158.102 and §158.305.
The trial court’s length of jurisdiction on child support enforcement and collection can be extended even in contempt matters that would have otherwise expired because none of these time limits are statute of limitations. In Ex Parte Wilbanks, 722 S.W.2d 221 (Tex.Civ.App.-Amarillo 1986, orig. proceeding), the minor child turned 18 on July 22, 1985. The legislature amended the Family Code effective September 1, 1985 and extended the time period over which the court has jurisdiction over contempt from the eighteenth birthday to be the eighteenth birthday plus six months. The obligor in that case contended to the Potter County court that because the child reached eighteen in July of 1985 before the amendment to §14.40 of the Family Code occurred on September 1, 1985, his right not to be sued for contempt for unpaid child support had vested and that subjecting him to a retroactive law would be unconstitutional and constitute an ex post facto law. The court rejected obligor's contentions completely. The court reasoned that the obligation to pay support was established by the court order fixing child support. The time limits referenced in §14.40 addressed only the jurisdiction of the trial court to enforce its prior order and the jurisdiction of the trial court could be extended anytime by the legislature. The court concluded, ". . .[t]he section does not affect substantive rights; It merely affects the remedy by defining the limitation period during which the pre-existing substantive rights may be enforced." Id. at 224. Extending the time period for enforcement of child support obligations, even after the time that the child support obligation had become dormant, is within the sound discretion of the legislature and does not “come within the scope of the constitutional provision against retroactive laws... The principle is applicable to remedial statutes governing enforcement of the legal liability for child support.” Id.
Accordingly, as stated by the San Antonio Court of Appeals, In the Interest of Digges, 981 S.W.2d 445 (Tex. App.–San Antonio 1998, no writ), the legislature has extended the jurisdiction of this trial court over its child support order pursuant to §158.102 and §158.305, through the date that the writ for income withholding was issued, and retains jurisdiction until all child support arrears, including interest, are paid. 981 S.W.2d at 446. The Obligor contends that the trial court does not have jurisdiction over this child support order. This trial court without question pursuant to §157.005, §158.102 and §158.305 of the Family Code has jurisdiction over the child support order and a cumulative judgment and judicial writ of income withholding can issue to enforce the child support order. “The court of continuing jurisdiction retains jurisdiction to render a wage withholding order until all current support and child support arrearages, including interest, have been paid.” In the Interest of Digges, 981 S.W.2d at 446. In Digges, prior to §158.102 and §158.305 being amended, four years after the eighteenth birthday of the minor child in Digges would have occurred on April 18, 1996. The writ was issued in October of 1997 after the amendments to §158.305. The court ruled that even though the minor child had attained the age of 18 in April of 1992, and that the last child support payment made by Digges was in August of 1986, that a writ issued for child support collection and enforcement in October of 1997 was permitted. Id. at 447.
The decision in Digges is consistent with all prior decisions interpreting the time the trial court has jurisdiction over its child support orders and is consistent with the case law that states these time limits are not statute of limitations. The time limits set forth in §157.005, §158.102 and §158.305 of the Family Code and the amendments thereto only define the trial court’s jurisdiction over the enforcement and collection of its child support order. There is simply no published opinion in the State of Texas that establishes a vested right to not make child support payments that have been ordered. The legislature has seen fit to make it the public policy of Texas, whether it is Houston, Dallas, San Antonio, Ft. Worth, Austin, El Paso, Galveston, Midland, Odessa, Corpus Christi, or Waco, that an obligor that has not paid child support and has not complied with a prior court order will be subject to child support enforcement and collection by a cumulative judgment and a writ of income withholding garnishing his wages until “all child support arrearages, including interest have been paid”. That public policy is a compelling public policy for Texas.
