Obligor’s position is that if you do not have a single cumulative judgment, you cannot avail yourself of any other remedy in the Family Code for the collection of unpaid child support. The Supreme Court in In the Interest of A.D. specifically rejected this position.
Obligor’s position is that if you do not have a single cumulative judgment, you cannot avail yourself of any other remedies in the Family Code for child support collection. The obligor argued in A.D. that since the court did not have jurisdiction to enter a cumulative judgment, no other remedies for collecting back child support were available. In the Interest of A.D., 73 S.W.3d 244, 247 (Tex. 2002). The Texas Supreme Court specifically rejected this position.
At the time A.D. was litigated, the children were 32 and 26 years of age when the writ of income withholding was issued and the court did not have jurisdiction to make an arrearage calculation pursuant to a cumulative money judgment. Tex. Fam. Code §157.005 (Vernon 1998). (Jurisdiction ended four years after emancipation of children, i.e., 22.).
A cumulative money judgment did not exist and was not available. However, the court had jurisdiction over a writ of income withholding for the collection of unpaid child support until all child support arrearages, costs and attorney’s fees had been paid. Tex. Fam. Code §158.102 (Vernon 1998). The Supreme Court in In the Interest of A.D. clearly articulated that at the time the writ of income withholding was issued in A.D., in 1998, there was not a “single cumulative judgment” and a determination of arrears pursuant to single cumulative judgment was not required for the issuance of a writ of income withholding.
In A.D., the amount of arrearages was determined to be $41,000 pursuant to the statutory provisions provided for in the remedy of a writ of income withholding. Tex. Fam. Code §158.309. The Supreme Court held “a wage-withholding order is available to remedy past violations of a support order whether or not the court has reduced the delinquent amount to a single, cumulative judgment” and whether or not the court has jurisdiction to enter a cumulative judgment. Id. at 246 (emphasis added). A cumulative judgment is not a cause of action, it is solely one of several methods to collect child support ordered in the decree of divorce.
The Court further stated:
An administrative writ of withholding for delinquent child support does not seek to impose a legal liability on the obligor to support his children. Instead, it is one of several methods the Family Code provides as a remedy to secure performance of a previously adjudicated liability.
Id. at 248 (emphasis added). The Supreme Court observed that all a cumulative judgment accomplishes is that “cumulative judgments are enforceable, by any means available for the enforcement of judgments for debts.” Id. at 246 fn1. The Court held that even without the remedy of a cumulative judgment, the other enforcement remedies available for collecting unpaid child support would be found in the Family Code, which are liens, levies, writs of income withholding, and license suspension. Id. at 246.
The Supreme Court further stated the unavailability of one child support remedy, i.e. cumulative judgment, does not eliminate the child support obligation itself or the other enforcement remedies. The child support obligation was established by the divorce judgment, not the cumulative judgment. Id. at 247-48.
This exact analysis was upheld in the Fort Worth Court of Appeals in Packard v. Davis, No. 02-08-022-CV, 2008 WL 4925998 (Tex. App.–Fort Worth 2008, no pet.), decided after the 2005 amendment to Tex. Fam. Code §157.005. In Packard the children were 38 and 35 years of age at the time the enforcement action was commenced. The enforcement action was commenced after the 2005 amendment to Tex. Fam. Code §157.005 which limited the jurisdiction of the trial court to ten years after emancipation for a cumulative judgment only.
The obligor argued that the court did not have jurisdiction to issue a wage withholding order or writ because there was not a cumulative judgment and one could not be obtained. The Fort Worth Court rejected this position and held,
The trial court here, however, signed an enforcement order and an order for wage withholding under Chapter 158 of the Family Code; it did not render a cumulative judgment for past-due child support as prohibited by section 157.005(b). . . .
Packard, 2008 WL 4925998 at *2.
The Fort Worth Court upheld the jurisdiction to enforce unpaid child support by writ of withholding and held,
Section 158.102 now contains no express deadline on the trial court’s jurisdiction to enter an order that provides for income withholding and authorizes the entry of such an order ‘until all current support and child support arrearages, interest and any applicable fees and costs have been paid.’ Tex. Fam. Code Ann. §158.102; accord In re A.D., 73 S.W.3d 244, 249 (Tex. 2002).
. . .
We thus hold that, based on the plain language of family code §158.102, the trial court possessed jurisdiction to sign an enforcement order and to order wage withholding.
Packard v. Davis, No. 02-08-022-CV, 2008 WL 4925998 at *2.
Overton v. Overton, No. 14-09-00865-CV, 2011 Tex. App. LEXIS 893 (Tex. App.–Houston [14th Dist.] 2011, pet. denied), cited with approval the holdings of A.D. and Packard that Family Code §158.102 “imposes no deadline on the trial court’s jurisdiction to issue an order or writ for income withholding.” Id. at 7.
The Houston court also held Family Code §157.318 imposes no deadline on the trial court’s jurisdiction to issue a child support lien; a child support lien “‘is effective until all current support and child support arrearages, including interest, any costs and reasonable attorney’s fees . . . have been paid. . . .” Id. In Overton, the children were 50, 45, 43, and 40 years of age at the time the enforcement action was commenced. The obligor argued Family Code § 157.005(b) barred the trial court’s jurisdiction to enforce the unpaid child support by a child support lien or writ of income withholding. The Houston court of appeals specifically rejected this contention and held, “the trial court possessed jurisdiction to sign an enforcement order allowing [the obligee] to collect unpaid child support by means of a child support lien or writ of withholding.” Id. at 8.
In Holmes v. Williams, 335 S.W.3d 215, 219 (Tex. App.–Houston [1st Dist.] 2011, no pet.), the obligor “interprets the jurisdictional time limit in section 157.005(b) as applying to every private enforcement mechanism contained in the Texas Family Code–cumulative money judgments, child-support liens, child-support levies, and wage withholdings.” The obligee in Holmes did not seek–and the trial court did not grant–a cumulative money judgment under §§ 157.005(b) or 157.263. Id. The court in Holmes held the plain language of § 157.005(b) “unambiguously indicates that it applies only to cumulative money judgments for past-due child support as provided by section 157.263,” not writs of withholding under § 158.102 or child support liens under § 157.318. Id.
In Isaacs v. Isaacs, 338 S.W.3d 184, 187 (Tex. App.–Houston [14th Dist.] 2011, pet. denied), the obligor argued § 157.005(b) “deprived the trial court of jurisdiction to render its judgment for child-support arrearages” when the obligee seeks enforcement through a writ of withholding and child support lien. The court of appeals, citing the Supreme Court in A.D., disagreed. “Under the unambiguous language of the statute, section 157.005(b) applies only to a trial court’s confirmation of arrearages and rendition of a cumulative money judgment under section 157.263,” not writs of withholding or child support liens. Id.
The obligee in Isaacs “did not seek, and the trial court did not grant, relief under section 157.263. . . . Instead, she sought to enforce child-support liens against Isaacs’s nonexempt property, and she sought a judicial writ of withholding from Isaacs’s earnings.” Id. As the court explained, a writ of withholding and child support lien “are available until various items, including all child support and child-support arrearages have been completely paid.” Id. at 188. Therefore, “Section 157.005(b) does not limit the trial court’s jurisdiction to grant the relief” when an obligee seeks enforcement of unpaid child support by a writ of withholding and child support lien. Id.
In 2009, the Legislature adopted the holding in Packard and clarified the time periods in §157.005 apply to cumulative judgments only and do not apply to any other remedy. Act of May 28, 2009, 81st Leg., R.S., S.B. No. 865, §13 (to be codified as an amendment to Tex. Fam. Code §157.005(b)). The time periods for the remedies of liens, levies, and writs of income withholding were unchanged by the Legislature and exist until all child support arrearages, costs and attorney’s fees have been paid. Tex. Fam. Code §§157.318, 158.102.
This Court has jurisdiction to enforce the unpaid child support owed by Obligor by writ of income withholding, liens and levies, each of which expressly provides the remedy is available until all current support and child support arrearages have been paid. Child Support 2 Collect