You have a pending case involving a child (divorce, SAPCR, modification) and child support has been established. However, like most parents you are concerned about the future—what happens when the children go to college, how will I afford their expenses then? Most people say that you can “save the child support” but that is not ideal. Children are expensive and it is highly likely that you will spend all of the child support and then some with all of the things that come up throughout their lives until they turn 18 or graduate from high school. Child support ends on “removal of the child’s disabilities for general purposes, the marriage or death of a child, or a finding by the court that the child is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program.” In the Interest of W.R.B. and B.K.B., Children. So, what are your options to ensure that your children can get a college education and have support from the other parent?
This issue is addressed in In the Interest of W.R.B. and B.K.B., Children from the 5th District Court of Appeals in Dallas. There, the Dallas Court of Appeals addressed the issue of post-majority support which is defined as applying “only to a non-disabled child who is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program” Tex. Fam. Code Section 154.001(a). Therefore, this creates or allows for a specific scenario in which the other parent would still be required to make support payments. In this case, the Court held that the trial court cannot order post-majority support on its own volition but the parties can agree to post-majority support in writing. In the agreed modification orders, the parties had done just that. Therefore, the Court of Appeals held that it was proper for the trial court to render the order of post-majority support. However, the issue then became that the obligor parent stopped paying the post-majority expenses and so the recipient or obligee parent filed an enforcement action seeking reimbursement of all of the expenses, attorneys’ fees and interest.
The Dallas Court of Appeals held that for post-majority support, this is after the child ages out and was based purely upon the parties’ agreement and so therefore it is not enforceable in a family law court under the Texas Family Code. Rather, the proper avenue is breach of contract. This is because the agreed orders, with respect to the post-majority support, are considered a contract because it is an agreement of the parties not based upon legal authority. This is unlike the issue of child support that was ordered which remains enforceable even post-aging out of the children because the Court still maintains jurisdiction over that issue as it was awarded under the family code.
With respect to consequences of breaching the contract, the Court held that it would be ideal if the parties not only agreed to the post-majority support but also agreed to the consequences if said support was not paid. This would distinctly provide a source of remedies for a court to look to on the breach of contract claim. In this particular case, the parties failed to do so and therefore it was difficult for the Court to ascertain what the proper remedies should be—this case is not like a typical enforcement case where, if in fact found to be in arrears, the conduct is punishable by contempt which could be confinement or suspension of confinement, confirmation of arrears, and award of attorneys’ fees. Therefore, it is clear that this Court made a suggestion for future cases involving post-majority support—create a bright line rule in your orders as to what happens if either party violates that agreement.
Also, the Court offered guidance for future cases involving reimbursement claims of this nature where there are actual child support arrears and post-majority support arrears. If you have a case of this nature, for the child support your avenue is enforcement. However, for the post-majority arrears you must separate that into a separate breach of contract cause of action and also distinctly separate the expenses out for the court. You want the court to be able to look at your itemized spreadsheets and be clear on all expenses and totals being claimed; otherwise, you might have your entire case thrown out and not recover the funds.
Clearly, this is a unique issue that should not be taken lightly. It is one that you have to ensure you get the language in the court order just right to ensure that you can in fact have a remedy if the order is violated. If you are facing a case in which you think you would require post-majority support OR a case in which you need to sue for arrears on post-majority support, please call us today at Guest & Gray for your free consult.