In re Office of Atty Gen, the Supreme Court did not allow the father to invoke the Texas Family Code to avoid contempt for failure to pay child support.
By Brad Lamorgese and Eileen Costello, family lawyers
The Supreme Court of Texas was called upon to interpret whether Texas Family Code § 157.162(d) provides a mechanism for an obligor to avoid contempt for missed payments alleged in a motion to enforce that, though untimely under the support order, had been satisfied prior to the enforcement hearing. The Supreme Court held that an obligor may invoke Texas Family Code § 157.162(d) by demonstrating that he or she is current on all support payments as of the date of the enforcement hearing, including those that become due after a motion to enforce has been filed.
In re Office of Atty Gen: Avoid Contempt by Being Current in Payment
In June 2008, a motion to enforce child support was brought against the Father. Prior to the enforcement hearing, the Father paid the entire pled arrearage and also accrued a new arrearage by making partial payments for the remaining intervening months between the filing and the hearing. Despite Father being current on the payments pled in the motion, the trial court still found him in contempt. On appeal, the Father argued that Texas Family Code § 157.162(d) prohibited a finding of contempt because he had paid all the pled amounts by the time of the hearing. In a divided decision, the court of appeals adopted this interpretation and ordered the trial court to vacate its contempt order. The Mother and the Office of the Attorney General petitioned the Supreme Court for mandamus relief. The Supreme Court held that when a statute’s language is clear and unambiguous, it is inappropriate to resort to rules of construction or extrinsic aids to construe the language. The plain language of 157.162(d) allows a respondent to avoid a finding of contempt when the respondent shows he or she “is current in the payment of child support as ordered by the court”.
Therefore, the Supreme Court found that the plain language of the statute required the Father to show that no outstanding arrearage existed as of the date of the enforcement hearing. Because Father had accumulated a new arrearage prior to the enforcement hearing, he was not current on all child support obligations. Thus, Texas Family Code § 157.162(d) could not be invoked by Father to avoid being found in contempt for failure to pay child support.
Brad Lamorgese and Eileen Costello are family law attorneys with McCurley Orsinger McCurley Nelson & Downing, LLP, a nationally prominent law firm and one of the largest in Texas.
A Texas father turned himself in two days ago and went to jail for being late with his child support payment, which was caused by clerical errors with the automatic withdrawals from his payment