Statutes in Effect

Statutes in Effect at Time A.D. Litigated and Statutes in Effect Now.

Family Code §157.005(b), in 1998, at the time A.D. was litigated, read as follows:

The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support if a motion for enforcement requesting a money judgment is filed not later than the 4th anniversary after the date:

(1) the child becomes an adult; or

(2) on which the child support obligation terminates under the child support order or by operation of law.

Family Code §157.005(b) as amended on June 18, 2005, now reads:

The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support if a motion for enforcement requesting a money judgment is filed not later than the 10th anniversary after the date:

(1) the child becomes an adult; or

(2) on which the child support obligation terminates under the child support order or by operation of law.

The statutes are identical in every aspect except four years became ten years. No other change of any kind occurred.

The same situation exists today as it did in 1998 when A.D. was litigated. The court had jurisdiction over the remedy of a writ of income withholding and liens until all child support was paid. The court at the time A.D. was litigated did not have jurisdiction over a “single cumulative judgment.” The Supreme Court held the statutory provisions for a writ of income withholding set forth a specific mechanism for the calculations of the amount of child support arrearages which is separate and independent from §157.005(b).  Liens, levies and writs of income withholding are “one of several methods the Family Code provides as a remedy to secure performance of a previously adjudicated liability.” A.D., 73 S.W.3d at 247. The independent remedies of liens and levies have the same time periods for jurisdiction as a writ of income withholding. Also, each of these remedies and subchapters on liens, levies and writs of income withholding have specific statutory provisions for the calculation of arrearages if the arrearages are contested. Tex. Fam. Code §§157.312, 157.323(a), (c)(1);158.309.

The appellate courts have uniformly held the jurisdiction of the court is determined by the specific subchapter for the remedy utilized for the collection of unpaid child support. Justice Paul Green (now Supreme Court Justice) in Cannon held “[T]he time restraints of section 157.005 are unrelated to the time restraints for the income withholding remedy.” In Re Cannon, 993 S.W.2d at 356, citing In Re Digges, 981 S.W.2d at 446.

In Digges, the obligor contended, as does the obligor in this case, that the support was barred because the arrearages had not been reduced to a single cumulative judgment and a single cumulative judgment was not available. The Court in Digges rejected this position. The Court held the provisions of the Family Code creates the court’s jurisdiction over the income withholding remedy to collect past due support. The Court additionally held the jurisdiction continues indefinitely and is not controlled by the time limitations set forth in §157.005(b) for a “single cumulative judgment,” which had already expired. Digges, 981 S.W.2d at 446.

The Family Code places no time limits on jurisdiction of writs of withholding and no time limits on jurisdiction on liens or levies. Furthermore, Obligor cannot cite any provision of the Family Code that places a time limit on writs of withholding, liens or levies. Additionally, the courts have uniformly held that the time limits in §157.005(b) do not apply to any other remedies for the collection of past due support. A.D., 73 S.W.3d at 246-47; In the Interest of S.C.S., 48 S.W.3d at 831, 834; In Re Digges, 981 S.W.2d at 446; In Re Cannon, 993 S.W.2d at 356.Child Support 2 Collect

Published by Steven Sinkin on 2013-08-13