Articles Posted in Child Support

The court in your family law case has received a request to order you to pay attorney’s fees for the other party. Is the court allowed to do that? And if they are allowed, what kind of evidence is required to prove the amount? The Dallas Court of Appeals explored this issue in a recent decision and stated that reasonable attorney’s fees may be awarded. The Court also discussed the factors that it considers when calculating attorney’s fees.

When a suit affects the parent-child relationship, courts have the discretion to award attorney’s fees to a party. Suits affecting the parent-child relationship include matters like child support, possession, and conservatorship or custody. Awards of attorney’s fees can be challenged on appeal. The appeals court will analyze the award based on the “abuse of discretion” standard. This lenient standard is difficult to overcome because the appeals court can look at many factors, any or all of which can show that the trial court was not arbitrary. Most of the time, these factors will support the original award or attorney’s fees and the award will be upheld.

Factors to consider in determining the reasonableness of attorney’s fees are: (1) the time and labor required based on the novelty and difficulty of the questions involved and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will keep the lawyer from taking other cases and employment; (3) the fee customarily charged in the local area for similar legal services; (4) the amount of money involved in the case and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship between the client and lawyer; (7) the experience, reputation, and ability of the lawyer performing the services; and (8) whether the fee is a set fee or if it is contingent on results obtained or if before the legal services have been rendered there is uncertainty about the ability to collect.

When you seek to modify a mediated settlement agreement that is an original determination of parent-child relationship matters, does a trial court have to enter an order that meets the terms of the mediated agreement? The Dallas Court of Appeals considered this issue in a recent decision and found that because modification suits apply a different set of rules than the rules that apply to original agreements about the child-parent relationship, a modification of child support suit may result in a ruling that does not comply with the terms of the agreement produced by mediation between the parties.

A mediated settlement agreement reflects the agreement of the parties about the child-parent relationship, including matters like child support, possession, and conservatorship. Child custody is called conservatorship in Texas. Texas courts and laws put a heavy emphasis on mediation and encourage alternative dispute resolution in a lot of situations. Mediation is supposed to encourage problem-solving and cooperation as well as reduce the financial burden on families and the court system. Many courts actually require mediation before allowing litigation to begin. Because of this emphasis, courts are likely to respect mediated settlement agreements unless a compelling reason exists that indicates that the court should ignore the agreement. Sometimes, statutes provide that required compelling reason.

In this recent case, the parties’ mediated settlement agreement was the original determination of conservatorship, possession, and access to the children. An original determination arises under § 153 of the Texas Family Code. As long as the mediated agreement met the rules of § 153, the court would enforce the agreement as written if a suit was brought seeking enforcement of the agreement. However, one of the parties sought a modification of child support suit. This type of suit is brought under § 156 of the Texas Family Code. This section requires different policy concerns than § 153, namely the need for stability for the child and the necessity of preventing constant litigation in family law cases. Because the policy concerns are different, the law has a different standard the court must use when applying the law. The Texas Family Code’s § 156 legal burden requires the court to determine if there has been a “material and substantial change” in the circumstances of the parties as well as to consider whether the requested modification is in the best interests of the child. So, when there is both a “material and substantial change” in circumstances and the modification sought is in the best interests of the child, the court only has to consider these facts and is not bound to enter an order that strictly complies with the mediated settlement agreement.

IN RE: IN THE INTEREST OF A.A., A CHILD

The Texas Family Code requires notice for a hearing on the petition for confirmation of a non-agreed child support review order, but does not specify the notice requirements. So, what must be included in such a notice to satisfy the due process rights of the parent on whom it is served? On August 23, 2013, this question was addressed by the 256th Judicial District Court in Dallas County, Texas.

Appellant Pedro Albarran was served with a Form #329 Notice (“notice”) and the petition for confirmation of non-agreed child support review order. The notice stated that a hearing had been set and provided the location of the hearing, but failed to include the date and time of the hearing. Mr. Albarran did not respond to the notice. The hearing took place over six months after service; during the hearing an order was confirmed by the trial court that established paternity of the child and ordered Mr. Albarran to pay child support. Mr. Albarran contended that the notice did not satisfy due process and was therefore insufficient to confer jurisdiction upon the trial court.

IN THE INTEREST OF B.E.V. AND B.J.V.

Can a court modify child support obligations when the parent seeking modification provides no historical financial data and asserts only the most general justification for the increase? The answer is no, according to an opinion from August 23, 2013, by the 302nd Judicial District Court in Dallas County, Texas.

In order for the trial court to conclude that there has been a material and substantial change in circumstances warranting a modification of a parent’s monthly child support obligation, the movant must present at least some testimony or other evidence sufficient to enable a trial court to compare the circumstances at the time of the order to be modified with the circumstances existing at the time modification is sought.

You’ve been through a divorce or a suit affecting the parent-child relationship, and the other party was ordered to pay child support by the Court, the terms of which were all located within the Court’s final orders. With all orders of child support, the orders state how much the obligor (responsible parent) is supposed to pay, how often they have to pay, and to whom they make the payment (in most if not all cases, the state disbursement unit). However, it’s been several months, or even years, and the other party has failed to comply with the child support order. You need financial help in raising your child; but you’ve reminded the other parent time and time again about this, and they still refuse to help you. So, you contact your attorney at Guest & Gray, P.C. who informs you that there is a solution–motion for enforcement.

Within this motion for enforcement, you will plead the dates that the child support payments were due, the amount that was due, and the amount that was paid. So, for instance, if the obligor was ordered to pay $200.00 on the first day of each month, and they just didn’t make a payment at all, then the amount paid would be $0.00. And, if they did make a payment of some amount, you can list that. But, the reality is that they were ordered to pay a certain amount, and that amount needed to be paid in full.

Because the obligor has failed to make their child support payments, then they are now in what is called arrearages for child support. This means that they have an outstanding balance. In pleading for an enforcement of the child support order, you will plead the total amount that the obligor is currently in arrearages. You will ask that the Court confirm this amount when you have your hearing and order that the obligor be responsible for that full amount.

The orders from your divorce or suit affecting the parent-child relationship have a special child support clause and it states, typically, the amount of child support you are responsible for as well as the dates that each support payment is due. A few months, or even years, later you realize that you have been paying more than the amount stated in your orders. You call your attorney at Guest & Gray, P.C. to determine what you can do, if anything.

If you, the obligor parent, pay the obligee parent a little extra than what you’re ordered to, then you need to get in writing that the obligee parent agrees these are “excess payments” to the child support order. The significance of this is outlined in Bolton v. Bolton, where the 1st District Houston Court of Appeals ordered that it depends on what the obligor’s intent was at the time the payments were being made–were they excess payments that should be treated as credit for any future payments of child support where the amount of support is increased? The Court placed a lot of emphasis on what was the agreement of the parties. Therefore, get your attorney at Guest & Gray, P.C. to draft a written agreement between you and the obligee parent that you intend the extra payments as a credit so that any confusion between you and the other parent can be avoided. It may also prevent you from having to go back to court and have the judge determine the characterization of the excess payments.

You already have your orders in place from your divorce or suit affecting the parent-child relationship. Now, a petition to modify is filed by the parent who is responsible for paying child support, otherwise known as the obligor parent. You see in their pleadings that they are requesting that the Court lower the amount of child support that they would be responsible for. You’re wondering now what you can do so you contact your attorney at Guest & Gray, P.C.

If an obligor parent wants to modify the child support order and argues that they make less now than before, then the Court, in determining whether to modify child support, has to consider all sources of obligor’s income, and not just his salary. That is, in Rumscheidt v. Rumscheidt, the 14th District Houston Court of Appeals held that where an obligor parent was receiving substantial financial assistance from his parents and family trust, which allowed him to live in a nice home and have a nice car and his parents paid for a lot of his expenses, then his child support shouldn’t be lowered. So, it would seem that one could argue that if the obligor parent is being helped by any family member (or maybe even a friend) when it comes to expenses or debt, then you have an argument to prevent less child support.

Many clients come to Guest & Gray, P.C. in Forney, Texas concerned that if they are ordered to pay child support, does this mean that their social security or inheritance from an estate are subject to the child support order? The answer is plain and simple–appellate courts have held that both social security and inheritance are subject to wage withholding. This is a form of withholding to ensure that the child support payments are made. Just as your employer can be ordered to withhold an amount from your check for child support, so can the social security office. At least, this is what the Beaumont Court of Appeals held in Horton v. Horton.

Furthermore, obligor parents who receive a hefty inheritance, beware. If there is a current suit for modification of child support, according to the 5th District Court of Appeals Dallas in In the Interest of P.C.S. and L.R.S., Minor Children, this inheritance can be included in the calculation of your net resources. However, your attorney does have an argument against this based upon the dissenting opinion which held that inheritance should be viewed as an income producing asset, which would change the calculation rather than just including it in your net resources.

The obligor parent hasn’t been paying the monthly child support as they were court ordered, and you want to go after them for it. So, you hire an attorney at Guest & Gray, P.C. in Forney and they file one of these handy motions on your behalf.

In doing so, the attorney will seek jail time, most commonly referred to as contempt, for the obligor parent because in Texas, the legislature doesn’t like it when parents don’t make their child support payments. However, the obligor parent may no longer be thrown in jail, much to your dismay.

That is, the appellate courts have provided a little incentive for an obligor parent facing one of these motions–just pay the arrearages pled for in the motion before trial, and you won’t go to jail. The courts will now look to the pleadings, not what the arrearages would be on the date of the enforcement hearing. That is–even if the obligor parent is still behind when it comes to the hearing date, if he/she is current on what you pled for in the motion, then they can’t be jailed at the time of the hearing.

Upon final court orders in a divorce or custody suit, depending upon if you and the other parent have an agreement, the primary or sole conservator (obligee) can be ordered to maintain or secure health insurance for your child and the obligor, as additional child support, is then ordered to pay a certain amount per month for that insurance. Here’s the trick, many obligors think that if they’re the ones who end up providing insurance for the child, then there is no reason why they should have to pay the monthly additional child support. However, that all depends on the actual language of the previous orders.

In fact, the 14th District Houston Court of Appeals in In the Interest of A.L.S., M.B.S., and F.J.S. ruled just that–unless the previous Court orders specifically say that the obligor’s payment of additional child support for insurance premiums is contingent upon the obligee’s maintaining or securing insurance for the child, then the obligor parent has to continue paying that additional support, even if they end up being the ones to provide the insurance. Lesson learned–be specific in order language to avoid any confusion in the future.