CONTEMPT: AN EMPTY THREAT IN CHILD SUPPORT ENFORCEMENT?
Enforcement of Child Support
Under current Texas law regarding the enforcement of child support, there is a gaping loophole that allows parties to play games withholding much needed child support without the intended consequences of jail time. In Texas, a person obligated to pay child support (an obligor) can be sentenced to jail time for nonpayment of that child support. Even in Texas, a debtor-friendly state, child support is held to a different standard, and judges here in Collin County, Denton County, and Dallas County send these non-paying obligors to jail regularly – especially repeat offenders.
The typical course of action is this:
1. Person obligated to make child support payments fails to make those payments in part or in full.
2. Person entitled to receive child support payments files an enforcement action in Court, in which he or she asks the judge to enforce the original order and force the obligor to pay current and past child support (and attorney’s fees for having to bring this action), and sets a hearing in front of the judge.
3. The person bringing the enforcement action has to pay for attorney’s fees up front and hopes to be reimbursed for these fees.
This is where things change depending on the particular facts of each case. Sometimes an obligor cannot afford to make the payments. Sometimes an obligor will come to an agreement to pay the back owed child support (arrearages), by setting up a payment plan (including interest). In other cases, the obligor will plead his or her case in front of the judge and ask for lower payments. Texas judges have a range of sanctions to impose on non-paying child support obligors. First, the judge can lower the payments based on a change in the obligor’s circumstances provided that the obligor has properly requested a modification of child support. However, the change in child support is not likely to negate the arrearage that has accrued and on which the enforcement is based. The judge will still likely confirm the arrearages and set up a payment plan for the obligor to pay the back support with interest. A judge may also find the obligor in contempt of court. In doing so, the judge may issue jail time – up to six months per offense of missing a payment. The judge may send the obligor directly to jail or may put the obligor on a suspended commitment, similar to probation, in which the obligor must remain current on his or her account or he or the suspended commitment would be revoked and the obligor would go to jail to serve the remainder of the suspended sentence.
The loophole comes into play when the obligor can afford to make the payments, but has chosen not to do so. In these cases, if the obligor can prove that he or she is current on all payments at the time of the enforcement hearing, the obligor can avoid a finding of contempt. This flaw in the law allows obligors to get behind on payments, and encourages game playing where an obligor will get behind on payments and an obligee will be unable to afford to care for the children; the obligee will then race to the courthouse to file an enforcement action and set a hearing on the enforcement. If the obligor subsequently pays the arrearage prior to the enforcement hearing, the obligee’s initial court filings are almost moot. Ultimately, this process increases the costs to both parties and costs the court valuable time. In an attempt to avoid this game playing, current Texas Family Code section 157.162(e) provides a remedy allowing the judge to order the obligor to pay the obligee’s attorney’s fees, but only if the obligee can show that the obligor was behind in payments at the time of filing the enforcement action and only brought the account current after he or she was served or otherwise notified of the enforcement action.
In the upcoming legislative session, the Texas Legislature will consider legislation to correct this loophole by removing Texas Family Code sections 157.162(d) and (e), which limit the ability of the court to impose contempt as a sanction. Without these sections, the court would have more discretion to weigh the facts of each case and impose contempt and attorney’s fees in all appropriate situations, even if the account was brought up to date prior to the hearing.
For now, if an obligor can and does make full payment after an enforcement action is filed, the petitioner can still recover attorney’s fees and court costs incurred, however, it is a waste of time for the petitioner and a waste of money for both parties and the Court.
An experienced family law attorney can help you decide your best course of action if your court-ordered child support is not currently being paid in full. The family law attorneys at Hanshaw Kennedy, LLP have experience working with the Office of the Attorney General Child Support Division in Collin County, Denton County, and Dallas County.
Stay tuned to learn about modifying child support.