Chapter 9 

Child Support

I.  Basic Principles

§ 9.1Support of Child

The court may order either or both parents to support a child in the manner specified by the order until the child is eighteen years of age or until graduation from high school, whichever occurs later; until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law; until the death of the child; or, if the child is disabled, for an indefinite period. Tex. Fam. Code § 154.001(a). The court may also order the payment of support by a financially able person whose parental rights have been terminated with respect to a child who is in substitute care for whom the Texas Department of Family and Protective Services has been appointed managing conservator, a child for a reason described by Code section 161.001(b)(1)(T)(iv) or (b)(1)(U) (concerning sexual assault of the other parent), or a child who was conceived as a direct result of conduct that constitutes an offense under section 21.02, 22.011, 22.021, or 25.02 of the Texas Penal Code. See Tex. Fam. Code § 154.001(a–1). Family Code section 154.001 does not mandate that a parent have pos­session of the child in order to be entitled to receive child support. Duran v. Garcia, 224 S.W.3d 309 (Tex. App.—El Paso 2005, no pet.).

If the child is enrolled in an accredited secondary school in a program leading toward a high school diploma under chapter 25 of the Texas Education Code, enrolled in courses for joint high school and junior college credit under section 130.008 of the Texas Edu­cation Code, or enrolled on a full-time basis in a private secondary school in a program leading toward a high school diploma, and is complying with the relevant minimum attendance requirements, the court may render an original support order or modify an existing order providing child support past the eighteenth birthday of the child. Tex. Fam. Code § 154.002(a). The request for a support order through high school gradua­tion may be filed before or after the child’s eighteenth birthday. Tex. Fam. Code § 154.002(b). The request may be made in an original suit seeking child support or a motion to modify a previous decree ordering support. Crocker v. Attorney General, 3 S.W.3d 650, 652–53 (Tex. App.—Austin 1999, no pet.).

The order for periodic support may provide that payments continue through the end of the month in which the child graduates. Tex. Fam. Code § 154.002(c).

With respect to “minimum attendance requirements,” report cards showing multiple absences, without indicating which were unexcused, and reflecting that the child received credit and grades for the period in issue were not evidence that the child failed to meet the minimum attendance requirements. Roberts v. Swain, No. 01-13-00801-CV, 2014 WL 1912678, at *2 (Tex. App.—Houston [1st Dist.] May 13, 2014, no pet.) (mem. op.). Partially relying on section 25.092(a) of the Texas Education Code, which permits a child to receive credit or a final grade only if he has attended 90 percent of the classes offered, the Beaumont court of appeals affirmed a decision to terminate the obligor’s child support obligation where the child was enrolled in online courses but not participating. In re B.Y., No. 09-19-00255-CV, 2020 WL 5240456, at *6–7 (Tex. App.—Beaumont Sept. 3, 2020, no pet.) (mem. op.).

With respect to “accredited secondary school,” the child may be enrolled in an alterna­tive educational program outside the secondary school system but one adapted to the child’s needs as long as any course credit earned under such alternative program may be applied to the gaining of a diploma from an accredited secondary school. In re Frost, 815 S.W.2d 890, 892–93 (Tex. App.—Amarillo 1991, no writ); see also Ewing v. Holt, 835 S.W.2d 274, 275 (Tex. App.—Fort Worth 1992, no writ) (intent of legislature in allowing for child support after child’s eighteenth birthday was “to require a father to aid in the support of his child, even if that child is over the age of eighteen, so long as that child was actively participating in studies which would lead to a high school diploma”).

A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support. Tex. Fam. Code § 153.001(b). In addition, the court may not condition the duty to pay child support on whether a posses­sory conservator is given possession of or access to a child. Tex. Fam. Code § 154.011. Likewise, an order that relieves the obligor of his or her duty to pay child support until such time as the child resumes visitation with that parent is void as against public pol­icy. In re A.N.H., 70 S.W.3d 918, 920 (Tex. App.—Amarillo 2002, no pet.).

§ 9.2Who May Be Ordered to Pay

Only parents (or certain persons whose parental rights have been terminated) may be required to pay child support. See Tex. Fam. Code § 154.001. Grandparents and other nonparents may not be required to pay child support, even if they have intervened in the case and have been appointed possessory conservators. In re K.N.H., No. 13-20-00347-CV, 2022 WL 243188, at *5 (Tex. App.—Corpus Christi–Edinburg Jan. 27, 2022, no pet.) (mem. op.); Blalock v. Blalock, 559 S.W.2d 442, 443 (Tex. App.—Houston [14th Dist.] 1977, no writ). Further, the doctrine of equitable adoption is inapplicable in the child support context. One who has acted as a parent, even if for many years, does not fit within the strict definition of a parent under the Family Code and cannot be held lia­ble for the support of a child. In re M.L.P.J., 16 S.W.3d 45, 47–48 (Tex. App.—Eastland 2000, pet. denied). However, although Texas does not recognize equitable adoption, a party may be liable for child support under an implied contract. See In re Marriage of Eilers, 205 S.W.3d 637 (Tex. App.—Waco 2006, pet. denied). In Eilers, because the parties took custody of a child and, along with the mother, executed a “Power of Attor­ney Delegating Parental Authority,” the court found the existence of a contract and ordered the husband to pay the amount of support required by the child support guide­lines to fulfill his contractual obligation.

While the Family Code does authorize a court to order either parent or both to support a child, the court may not order a sole managing conservator to pay child support to the possessory conservator. See Peterson v. Office of the Attorney General, 990 S.W.2d 830, 833 (Tex. App.—Fort Worth 1999, no pet.); Lueg v. Lueg, 976 S.W.2d 308, 313 (Tex. App.—Corpus Christi–Edinburg 1998, pet. denied). However, when joint manag­ing conservators are named, the parent who has the exclusive right to determine the pri­mary residence of the child may be ordered to pay support to the parent with an expanded possession order to ensure that the child has “adequate resources” at both res­idences. In re A.R.W., No. 05-18-00201-CV, 2019 WL 6317870, at *9–10 (Tex. App.—Dallas Nov. 26, 2019, no pet.) (mem. op.); see also S.L. v. S.L., No. 02-19-00017-CV, 2020 WL 4360448, at *3–5 (Tex. App.—Fort Worth July 30, 2020, no pet.) (mem. op.).

If parties are made joint managing conservators, there is no requirement in the Family Code for a reciprocal support order. Carson v. Hathaway, 997 S.W.2d 760, 761 (Tex. App.—El Paso 1999, no pet.).

A court may order both a mother and a biological father to pay support, including retro­active support, to a third-party adjudicated father, and there is no prohibition against the payment of retroactive support to someone other than the mother of the child. In re A.L.H., No. 11-19-00003-CV, 2020 WL 1809363, at *2 (Tex. App.—Eastland Apr. 9, 2020, pet. denied) (mem. op.).

§ 9.3Manner of Payment

The court may order that child support be paid by periodic payments; a lump-sum pay­ment; an annuity purchase; the setting aside of property to be administered for the sup­port of the child as specified in the order; pension, retirement, or other employee benefits in accordance with an enforceable qualified domestic relations order or similar order under Family Code subchapter J, chapter 157; or any combination of periodic payments, lump-sum payments, annuity purchases, or setting aside of property. Tex. Fam. Code § 154.003.

If the court orders the obligor to make a one-time lump-sum payment, calculated sim­ply by multiplying the monthly support award by the number of months until the child reaches majority, a discount rate must be applied to arrive at the present value of the future payments. In re Gonzalez, 993 S.W.2d 147, 160 (Tex. App.—San Antonio 1999, no pet.). The court may require the obligor to pay a lump-sum child support amount into a trust for the benefit of the child. In re Gonzalez, 993 S.W.2d at 161. It is also per­missible for the court to order that a portion of the monthly support amount be paid into a joint account, to be used for purposes specific to the care and welfare of the child, with any amounts remaining on the termination of the support order to be paid to the child. Bailey v. Bailey, 987 S.W.2d 206, 209 (Tex. App.—Amarillo 1999, no pet.).

A court-ordered obligation to pay a minor child’s school tuition is an obligation to pay child support and is intended to fulfill an obligation directly to the child. Thus, like any child support order, it can be modified. In re H.L.B., No. 05-18-01061-CV, 2020 WL 104623, at *3–4 (Tex. App.—Dallas Jan. 9, 2020, no pet.) (mem. op.).

The court did not abuse its discretion in awarding an incarcerated obligor’s share of the equity in the couple’s home as a lump-sum child support payment to satisfy his child support obligation, where the father would not be up for parole before his child support obligation expired. Tran v. Nguyen, 480 S.W.3d 119, 129 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

§ 9.4Place of Payment

The court shall order the payment of child support to the state disbursement unit. Tex. Fam. Code §§ 154.004(a), 234.007. A trial court cannot order the state disbursement unit to remit payments to an individual or entity other than the obligee. In re B.N.A., 278 S.W.3d 530 (Tex. App.—Dallas 2009, no pet.); In re C.J.M.S., 269 S.W.3d 206 (Tex. App.—Dallas 2008, pet. denied); In re A.B., 267 S.W.3d 564 (Tex. App.—Dallas 2008, no pet.). In a title IV-D case, the court or the title IV-D agency shall order that income withheld for child support be paid to the state disbursement unit of Texas or, if appropriate, to the state disbursement unit of another state. Tex. Fam. Code § 154.004(b).

COMMENT:      A child support obligor who has been ordered to pay through the state disbursement unit or other registry should be strongly advised to make payments to the proper place and not directly to the obligee. Payments should be properly identified, including the names of the obligor and obligee, the cause number, the Office of Attor­ney General case number, if applicable, and the name of the county if payment is through the state disbursement unit. The obligor should further be advised to keep an accurate record and proof of any offsets or credits to which he may be entitled.

The petitioner must file with the court clerk a record of support (see form 9-18 in this manual) at the time an order for child support, medical support, and dental support is filed of record. Tex. Fam. Code § 105.008(a). The record of support is a form promul­gated by the Texas Office of the Attorney General, and its use guarantees that the local registry and the state disbursement unit receive the information necessary to accurately process support payments. If the form includes an option for a party to apply for title IV-D child support services, the party or authorized representative must sign it. Tex. Fam. Code § 105.008(b).

If an obligor is ordered to pay an obligee both spousal maintenance under Family Code chapter 8 and child support under chapter 154, the court must order payment of the maintenance to the state disbursement unit. Tex. Fam. Code § 8.062.

§ 9.5Payments by Trust

The court may order the trustees of a spendthrift or other trust to make disbursements for the support of a child to the extent the trustees are required to make payments to a beneficiary who is required to make child support payments. If disbursement of the assets of the trust is discretionary, the court may order child support payments from the income of the trust but not from the principal. Tex. Fam. Code § 154.005. The court may not order trustees to pay child support directly to a child support obligee without imposing that obligation on the beneficiary-parent. It is only when the parent is first obligated to pay an amount of child support that the court may order a third party to make disbursements directly to the child support obligee. Kolpack v. Torres, 829 S.W.2d 913, 915–16 (Tex. App.—Corpus Christi–Edinburg 1992, writ denied).

§ 9.6Termination of Duty of Support

Unless otherwise agreed in writing or expressly provided in the order, the child support order terminates on the marriage of the child, the removal of the child’s disabilities for general purposes, the death of the child, a finding by the court that the child is eighteen years of age or older and has failed to comply with the enrollment or attendance requirements described by Family Code section 154.002(a), the issuance under Family Code section 161.005(h) of an order terminating the parent-child relationship between the obligor and the child based on the results of genetic testing that exclude the obligor as the child’s genetic father, or the date on which a child who has enlisted in the armed forces of the United States begins active service as defined by section 101 of title 10 of the United States Code. Tex. Fam. Code § 154.006(a).

Unless a nonparent or agency has been appointed conservator of the child under Family Code chapter 153, the order for current child support terminates on the marriage or remarriage of the obligor and obligee to each other. Tex. Fam. Code § 154.006(b).

If the child support order has not terminated, the support obligation continues beyond the death of the obligee on an order of the court directing that any current support, including amounts collected but not disbursed and any subsequent payments for current support, be paid proportionately for the benefit of each surviving child named in the support order, instead of passing to the estate of the obligee. The order shall direct pay­ment be made to (1) a person, other than a parent, who is appointed managing conserva­tor of the child; (2) a person, including the obligor, who has assumed actual care, control, and possession of the child, in the absence of an appointed managing conserva­tor or guardian; (3) the county clerk acting as custodian of an account for the child, under chapter 1355 of the Estates Code; (4) a guardian of the child appointed under title 3 of the Estates Code; or (5) the surviving child, if the child is an adult or has otherwise had the disabilities of minority removed. Tex. Fam. Code § 154.013.

If the obligor is not in arrears and the support obligation has terminated, an obligee shall return to the obligor a child support payment made by the obligor that exceeds the amount of ordered support, regardless of whether the payment was made before, on, or after the date the child support obligation terminated. An obligor may file a suit to recover such a payment. If the court finds that the obligee failed to return such a pay­ment, the court must order the obligee to pay the obligor’s attorney’s fees and costs in addition to the amount of support paid after the order terminated. The court may waive the payment of the attorney’s fees and costs for good cause shown, if the court states the reasons supporting that finding. Tex. Fam. Code § 154.012.

§ 9.7Retroactive Child Support

The court may order a parent to pay retroactive child support if the parent has not previ­ously been ordered to pay support for the child and was not a party to a suit in which support was ordered, except that the court may order a parent subject to a previous sup­port order to pay retroactive support if (1) the previous order terminated as a result of the marriage or remarriage of the child’s parents, (2) the parents separated after the mar­riage or remarriage, and (3) a new support order is sought after the date of separation. Tex. Fam. Code § 154.009(a), (d).

In ordering retroactive child support, the court shall apply the child support guidelines. Tex. Fam. Code §§ 154.009(b), 154.131(a). The court must consider the net resources of the obligor during the relevant period and whether (1) the mother of the child had attempted to notify the obligor of his paternity or probable paternity, (2) the obligor knew of his paternity or probable paternity, (3) the order for retroactive support will impose an undue financial hardship on the obligor or the obligor’s family, and (4) the obligor has provided actual support and other necessaries before the action was filed. Tex. Fam. Code § 154.131(b).

An agreement between the parties concerning support or purporting to settle support obligations does not reduce or terminate the amount of retroactive support the title IV-D agency can request unless the title IV-D agency is a party to an agreement. Tex. Fam. Code § 154.009(c). In addition, a parent’s voluntary but sporadic payment of support before the entry of a court order does not preclude the trial court from exercising its dis­cretion to award retroactive child support, and the court is not required to credit the full amount of past financial support the parent claims to have provided. Bunts v. Williams, No. 01-17-00643-CV, 2019 WL 2220109, at *10 (Tex. App.—Houston [1st Dist.] May 23, 2019, no pet.) (mem. op.).

It is presumed that a court order limiting the amount of retroactive support to an amount not exceeding the total amount that would have been due for the four years preceding the filing date of the petition for support is reasonable and in the best interest of the child. The presumption may be rebutted by evidence that the obligor (1) knew or should have known that he was the child’s father and (2) sought to avoid the establishment of a support obligation to the child. Tex. Fam. Code § 154.131(c)–(d); see In re S.C.B., 581 S.W.3d 434 (Tex. App.—El Paso 2019, no pet.) (fact that father knew about twelve-year-old child since child’s birth insufficient to rebut presumption without proof that he also sought to avoid child support obligation). An order so limiting the amount of retro­active support does not constitute a variance from the mandatory guidelines requiring specific findings of the court. Tex. Fam. Code § 154.131(e). But see In re B.R., 327 S.W.3d 208 (Tex. App.—San Antonio 2010, no pet.) (section 154.131(c)’s presumption applies only when trial court limits amount of retroactive child support to amount not exceeding support that would have been due for preceding four years and does not pro­hibit court from awarding amount greater than four years of retroactive child support; if court does not limit retroactive support to amount equal to four years of child support, section 154.131(c) presumption is not triggered and does not apply).

In Kebodeaux v. Kebodeaux, the trial court erred in including support that accrued after the child turned eighteen and graduated from high school. The appellate court also held that a petitioner should specifically plead for retroactive child support to provide fair notice but did not set aside the award, finding that the parties tried the issue by consent. Kebodeaux v. Kebodeaux, No. 04-20-00147-CV, 2021 WL 3639814, at *3–6 (Tex. App.—San Antonio Aug. 18, 2021, no pet.) (mem. op.).

A court retains jurisdiction to render an order for retroactive child support in a suit if a petition requesting retroactive child support is filed not later than the fourth anniversary of the date of the child’s eighteenth birthday. Tex. Fam. Code § 154.131(f).

§ 9.8Child Support for Disabled Child

An “adult child” is a child eighteen years of age or older. Tex. Fam. Code § 154.301(1). The court may order either or both parents to provide for the support of a child for an indefinite period and may determine the rights and duties of the parents if the court finds that the child, whether institutionalized or not, requires substantial care and per­sonal supervision because of a mental or physical disability and will not be capable of self-support and that the disability exists, or the cause of the disability is known to exist, on or before the eighteenth birthday of the child. Tex. Fam. Code § 154.302(a); see, e.g., Canales v. Paxton, No. 03-19-00259-CV, 2020 WL 5884123, at *5 (Tex. App.—Austin Sept. 30, 2020, pet. ref’d) (mem. op.) (statute is not void for vagueness even though terms such as “disability” are not defined, nor are there guidelines or criteria for courts to apply); In re V.R.J., No. 04-19-00348-CV, 2020 WL 2543316, at *5 (Tex. App.—San Antonio May 20, 2020, no pet.) (mem. op.) (Social Security Administra­tion’s requirements for adult disability benefits are not analogous with standards set out in Family Code, which does not require showing of inability to engage in any substan­tial gainful activity, that disability is medically determinable, or that it will persist for specific length of time); In re T.A.N., No. 07-08-0483-CV, 2010 WL 58334 (Tex. App.—Amarillo Jan. 8, 2010, no pet.) (mem. op.) (finding sufficient evidence that adult child needs substantial care and personal supervision and noting that substantial care is not same as continuous care); In re M.W.T., 12 S.W.3d 598, 605 (Tex. App.—San Anto­nio 2000, pet. denied) (finding that uncontrollable anger rendered adult child disabled and incapable of self-maintenance). But see In re J.M.C., 395 S.W.3d 839, 846 (Tex. App.—Tyler 2013, no pet.) (denying petition for adult child support for legally blind adult who did not need substantial care or personal supervision in daily activities). 

The court shall designate a parent of the child or another person who has physical cus­tody or guardianship of the child under a court order to receive support for the child. The court may designate a child who is eighteen years of age or older to receive the support directly. Tex. Fam. Code § 154.302(b). If the court finds that a special needs trust is appropriate for the benefit of the adult disabled child, the court may designate the trustee of the special needs trust to receive support for the child.

Except in a title IV-D case, a court ordering support for an adult child with a disability may designate a special needs trust and order support be paid directly to the trust for the benefit of the adult child. The court may not order the support be paid to the state dis­bursement unit. Tex. Fam. Code § 154.302(c).

A suit for the support of a disabled child may be filed only by a parent of the child; another person who has physical custody or guardianship of the child under a court order; or the child, if the child is eighteen years of age or older, does not have a mental disability, and is determined by the court to be capable of managing the child’s financial affairs. Tex. Fam. Code § 154.303(a); In re C.J.N.-S., 540 S.W.3d 589 (Tex. 2018) (mother had standing to seek adult disabled child support from father even though mother did not live with child). 

The suit may be filed regardless of the age of the child. Tex. Fam. Code § 154.305(a)(1). The cause of action may be assigned to the IV-D agency, pursuant to an application for financial assistance or child support services under Code section 231.104 or in the provision of child support enforcement services under Code section 159.307; however, it may not be assigned to any other entity or person. See Tex. Fam. Code § 154.303(b).

In determining the amount of support to be paid after a child’s eighteenth birthday, the specific terms and conditions of that support, and the rights and duties of both parents with respect to the support of the child, the court shall determine and give special con­sideration to any existing or future needs of the adult child directly related to the adult child’s mental or physical disability and the substantial care and personal supervision directly required by or related to that disability; whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child; the financial resources available to both par­ents for the support, care, and supervision of the adult child; and any other financial resources or other resources or programs available for the support, care, and supervi­sion of the adult child. Tex. Fam. Code § 154.306; see In re N.E.C., No. 05-18-01156-CV, 2020 WL 3286522 (Tex. App.—Dallas June 18, 2020, pet. denied) (mem. op.) (factors discussed).

§ 9.9Acceleration of Unpaid Child Support Obligation on Death of Obligor

Any remaining unpaid balance of a child support obligation becomes payable when the obligor dies. Tex. Fam. Code § 154.015(b).

The court of continuing jurisdiction shall determine the amount of the unpaid child sup­port obligation. All relevant factors must be considered in determining the amount of the unpaid obligation, including the present value of the total amount of monthly peri­odic child support payments, health insurance premiums, and dental insurance premi­ums payable for the child’s benefit between the month in which the obligor dies and the month the child becomes eighteen years of age, based on the amounts of support and cost of insurance ordered at the time the obligor dies; in the case of a disabled child, an amount to be determined under Family Code section 154.306; the nature and amount of any benefit to which the child would be entitled as a result of the obligor’s death, including life insurance proceeds, annuity payments, trust distributions, Social Security death benefits, and retirement survivor benefits; and any other financial resource avail­able for the child’s support. Tex. Fam. Code § 154.015(c).

If, after considering all the relevant factors, the court finds that the child support obliga­tion has been satisfied, the court shall render an order terminating the obligation. If the court finds the obligation is not satisfied, the court shall render a judgment in the obli­gee’s favor, for the child’s benefit, for the amount of the unpaid obligation. The order must designate the obligee constructive trustee for the child’s benefit of any money received in satisfaction of the judgment. Tex. Fam. Code § 154.015(d).

The obligee has a claim for the unpaid child support obligation against the obligor’s estate on the child’s behalf and may present that claim as provided in the Texas Estates Code. Tex. Fam. Code § 154.015(e). If money paid to the obligee for the child’s benefit exceeds the amount of the unpaid child support obligation remaining when the obligor dies, the obligee must hold the excess amount as constructive trustee for the benefit of the obligor’s estate until the obligee delivers the excess amount to the legal representa­tive of the estate. Tex. Fam. Code § 154.015(f).

COMMENT:      For a discussion of several unanswered questions regarding the imple­mentation of this statute, see Marilyn Shell & Georganna L. Simpson, Dealing with the Death of a Parent: Family Code §§ 154.015 and 154.016, Winter 2007 Family Law Section Report.

§ 9.10Provision of Support If Obligor Dies

The court may order a child support obligor to obtain and maintain a life insurance pol­icy, including a decreasing term life insurance policy, that will establish an insurance-funded trust or an annuity payable to the obligee for the child’s benefit that will satisfy the support obligation under the child support order if the obligor dies. Tex. Fam. Code § 154.016(a).

In determining the nature and extent of the support obligation in the event of the obli­gor’s death, the court shall consider all relevant factors, including the present value of the total amount of child support payments, health insurance premiums, and dental insurance premiums payable for the child’s benefit from the time the order is rendered until the month in which the child becomes eighteen years of age, based on the amount of the support and the cost of insurance ordered to be paid. In the case of a disabled child, the court shall consider an amount to be determined by the court under Family Code section 154.306. Tex. Fam. Code § 154.016(b).

On its own or the obligee’s motion, the court may require the obligor to provide satis­factory proof verifying compliance with the order for life insurance. Tex. Fam. Code § 154.016(c).

§ 9.11Payments in Excess of Court-Ordered Amount

If a child support agency or registry receives from an obligor who is not in arrears a child support payment in an amount that exceeds the court-ordered amount, the agency or registry shall give effect to any expressed intent of the obligor for the application of the amount that exceeds the court-ordered amount. If the obligor does not express an intent for the application of the amount paid in excess of the court-ordered amount, the agency or registry shall credit the excess to the obligor’s future child support obligation and disburse the excess to the obligee, unless the obligee is a recipient of public assis­tance under chapter 31 of the Human Resources Code. Tex. Fam. Code § 154.014. Likewise, when an obligee receives excess child support payments from an obligor, the trial court shall give effect to any expressed intent of the obligor to determine proper application of the excess amount. In re B.S.H., 308 S.W.3d 76 (Tex. App.—Fort Worth 2009, no pet.) (per curiam) (trial court properly refused to apply excess payments to future obligations, finding that they were voluntary payments intended to avoid costs of modifying decree and to meet current needs of child); see also Troiani v. Troiani, No. 13-18-00271-CV, 2019 WL 5444407, at *9–10 (Tex. App.—Corpus Christi–Edinburg Oct. 24, 2019, no pet.) (mem. op.) (payments of private school tuition not excess child support payments to be credited against obligor’s future child support obligation where child support obligation had not terminated and obligor had not expressed intent for any overpayments to offset his future child support obligation).

 

 

 

 

 

 

 

 

 

[Sections 9.12 through 9.20 are reserved for expansion.]

II.  Child Support Guidelines

§ 9.21Net Resources Defined

The court shall calculate net resources for the purpose of determining child support lia­bility as follows. Resources include 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses); interest, dividends, and royalty income; self-employment income; net rental income (defined as rent after deducting operating expenses and mortgage pay­ments but not including noncash items such as depreciation); and all other income actu­ally being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, Social Security benefits other than supplemental secu­rity income, United States Department of Veterans Affairs disability benefits other than non–service-connected disability benefits (as defined by 38 U.S.C. § 101(17)), unem­ployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony. Tex. Fam. Code § 154.062(a), (b).

All receipts of money that are not specifically excluded by section 154.062(c), whether nonrecurring or periodic, whether derived from the obligor’s capital or labor or from that of others, must be included in the definition of “resources.” Tobias v. Marks, No. 03-20-00127-CV, 2021 WL 3868760, at *5–6 (Tex. App.—Austin Aug. 31, 2021, pet. denied) (mem. op.) (income includes regularly recurring income received, not lump-sum inheritances); Daves v. McKnight, No. 14-20-00101-CV, 2021 WL 3672787, at *3 (Tex. App.—Houston [14th Dist.] Aug. 19, 2021, no pet.) (mem. op.) (employer-paid insurance premiums should not be considered in calculating net resources); In re C.E.A.Q., No. 09-19-00037-CV, 2020 WL 5240458, at *2–4 (Tex. App.—Beaumont Sept. 3, 2020, pet. denied) (mem. op.) (trial court properly included disabled veteran’s benefits and social security disability benefits); In re P.C.S., 320 S.W.3d 525, 537 (Tex. App.—Dallas 2010, pet. denied) (cash inheritance from third party paid to obligor in two payments is “resource” for purpose of calculating monthly child support obliga­tion). See also In re Marriage of Tuttle, 602 S.W.3d 9, 14–16 (Tex. App.—Amarillo 2020, pet. denied) (undistributed retained earnings in subchapter S corporation owned by obligor may be considered when calculating child support obligation, depending on variety of factors set out in opinion; assessing whether retained earnings should be included in support equation differs little from assessing parent’s earning potential); In re K.M.B., 606 S.W.3d 889, 897–98 (Tex. App.—Dallas 2020, no pet.) (military allow­ances for housing and subsistence correctly included in monthly net resources even though not defined as income for federal income tax purposes); In re A.M.P., 368 S.W.3d 842, 848–49 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (when calculating net resources, court should have included advance on inheritance, as it was gift and not loan); Koenig v. DeBerry, No. 03-09-00252-CV, 2010 WL 1009170 (Tex. App.—Aus­tin Mar. 17, 2010, no pet.) (mem. op.) (trial court properly considered early withdrawal from father’s retirement account in its determination of net resources); In re J.D.D., 242 S.W.3d 916, 922 (Tex. App.—Dallas 2008, pet. denied); In re S.B.C., 952 S.W.2d 15, 18 (Tex. App.—San Antonio 1997, no writ) (latter two holding that duty to pay support is not limited to obligor’s ability to pay from current earnings but also extends to his or her financial ability to pay from any and all sources that might be available); Swaab v. Swaab, 282 S.W.3d 519 (Tex. App.—Houston [14th Dist.] 2008, review dism’d w.o.j.) (given obligor’s undisputed fluctuation in earnings, trial court did not abuse its discre­tion in averaging net resources over ten-year period to determine his approximate net monthly resources); Stucki v. Stucki, 222 S.W.3d 116 (Tex. App.—Tyler 2006, no pet.) (court abused its discretion by not considering one-time $20,000 bonus as part of obli­gor’s net resources for purposes of determining child support); Knight v. Knight, 131 S.W.3d 535, 540 (Tex. App.—El Paso 2004, no pet.) (trial court did not abuse its dis­cretion in basing child support on obligor’s income from prior year when no evidence of current income was offered); Norris v. Norris, 56 S.W.3d 333, 341–42 (Tex. App.—El Paso 2001, no pet.) (if obligor’s income fluctuates, it is proper to base order on aver­age amount of monthly net resources over a two-year period). But see In re P.C.S., 320 S.W.3d at 540 (benefits of employment—personal use of company truck and monthly health insurance premium paid for family—not includable in net resources but rather subject to consideration in deviating from guidelines under section 154.123).

Texas courts are split on the appropriate treatment of annuity income in calculating net resources and whether there should be a differentiation between the portion of the annu­ity related to interest income and the portion representing a return of principal. Section 154.062 of the Texas Family Code defines net resources to include “all other income actually being received, including . . . annuities” but also provides that net resources do not include a return of principal or capital. See Tex. Fam. Code § 154.062(b)(5), (c)(1); compare Mansfield v. Mansfield, No. 04-18-00551-CV, 2019 WL 6138984, at *3 (Tex. App.—San Antonio Nov. 20, 2019, pet. denied) (mem. op.) (obligor’s monthly settle­ment annuity should be included in calculating net resources; statute draws no distinc­tion between settlement annuity and any other type of annuity), with In re A.A.G., 303 S.W.3d 739 (Tex. App.—Waco 2009, no pet.) (portion of structured settlement annuity attributable to interest—but not portion representing a return of principal—should be considered in calculating net resources).

In Powell v. Swanson, 893 S.W.2d 161, 163–64 (Tex. App.—Houston [1st Dist.] 1995, no writ), the court’s calculation of an obligor’s net resources by dividing in half the adjusted gross income as stated on his jointly filed federal tax return was found arbi­trary and an abuse of discretion.

Resources do not include return of principal or capital, accounts receivable, benefits paid in accordance with the Temporary Assistance for Needy Families program or another federal public assistance program, or payments for foster care of a child. Tex. Fam. Code § 154.062(c).

The court shall deduct the following items from resources to determine the net resources available for child support: Social Security taxes, federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction, state income tax, union dues, and expenses for the cost of health insurance, dental insurance, or cash medical support for the obligor’s child ordered by the court under Code sections 154.182 and 154.1825; if the obligor does not pay Social Security taxes, the court shall also deduct contributions to a nondiscretionary retirement plan (a plan to which the obligor is required to contribute as a condition of employment). Tex. Fam. Code § 154.062(d), (f). In calculating the amount of the deduction for health-care or dental coverage for a child, if the obligor has other minor dependents covered under the same health or dental insurance plan, the court must divide the total cost to the obli­gor for the insurance by the total number of minor dependents, including the child, cov­ered under the plan. Tex. Fam. Code § 154.062(e).

There is no legal presumption that an inmate has no assets. See Koenig v. DeBerry, 2010 WL 1009170, at *5 (support set on earnings from year prior to incarceration, which could be satisfied from withdrawals from retirement account).

§ 9.22Imputation of Income

When applying the support guidelines, the court must rely to the extent possible on evi­dence of the obligor’s resources, as defined by Family Code section 154.062(b). Tex. Fam. Code § 154.0655(a), (b).

In the absence of evidence of the party’s resources, the court must consider certain rele­vant background circumstances regarding the obligor. These include the obligor’s assets, residence, employment, earnings history, job skills, educational attainment, liter­acy, age, health, criminal history, barriers to employment, and record of seeking work. They also include job opportunities and the prevailing wage in the obligor’s community and whether there are employers willing to hire the obligor. Tex. Fam. Code § 154.0655(c).

§ 9.23Self-Employment Income

Income, whether positive or negative, from self-employment includes benefits allo­cated to an individual from a business or undertaking in the form of a proprietorship, partnership, joint venture, close corporation, agency, or independent contractor, less ordinary and necessary expenses required to produce that income. In its discretion, the court may exclude from self-employment income amounts allowable under federal income tax law as depreciation, tax credits, or any other business expenses shown by the evidence to be inappropriate in making the determination of income available for the purpose of calculating child support. Tex. Fam. Code § 154.065. See In re Marriage of Tuttle, 602 S.W.3d 9, 14–16 (Tex. App.—Amarillo 2020, no pet.) (undistributed retained earnings in subchapter S corporation owned by obligor may be considered when calculating child support obligation, depending on variety of factors set out in opinion; assessing whether retained earnings should be included in support equation differs little from assessing parent’s earning potential); In re S.M.H., No. 07-18-00148-CV, 2019 WL 5799983, at *3–4 (Tex. App.—Amarillo Nov. 6, 2019, pet. denied) (mem. op.) (court is not bound by federal income tax law regarding deductible expenses and could reasonably conclude that tax deductions are not necessary expenses).

§ 9.24Intentional Unemployment or Underemployment

If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor. Tex. Fam. Code § 154.066(a); see In re Davis, 30 S.W.3d 609, 616 (Tex. App.—Texarkana 2000, no pet.). In deter­mining whether an obligor is intentionally unemployed or underemployed, the court may consider evidence that the obligor is a veteran (as defined by 38 U.S.C. § 101(2)) who is seeking or has been awarded VA disability benefits (as defined by 38 U.S.C. § 101(16)) or non–service-connected disability pension benefits (as defined by 38 U.S.C. § 101(17)). Tex. Fam. Code § 154.066(b). The court may not consider incarcer­ation as intentional unemployment or under-employment in establishing or modifying a support order. Tex. Fam. Code § 154.066(c).

In addition, in setting an appropriate support award, the court is not limited to the obli­gor’s ability to pay from current earnings; rather it extends to the obligor’s financial ability to pay from any and all available sources. Garner v. Garner, 200 S.W.3d 303 (Tex. App.—Dallas 2006, no pet.). In Garner, the court considered prior employment, along with the fact that the obligor received payment for expenses as a member of a singing group. See also In re A.B.A.T.W., 266 S.W.3d 580 (Tex. App.—Dallas 2008, no pet.).

A parent who is qualified to obtain gainful employment cannot evade his support obli­gation by voluntarily remaining unemployed. Giangrosso v. Crosley, 840 S.W.2d 765, 770 (Tex. App.—Houston [1st Dist.] 1992, no writ). In one case the court found the obligor’s testimony that he thought self-employment would be “more lucrative” and that he did not foresee a decrease in his earnings was sufficient to base the award on actual earnings rather than earning potential. McGuire v. McGuire, 4 S.W.3d 382, 388 (Tex. App.—Houston [1st Dist.] 1999, no pet.). But see Terry v. Terry, 920 S.W.2d 423, 426–27 (Tex. App.—Houston [1st Dist.] 1996, no writ) (finding that obligor intention­ally unemployed based on educational background); In re Striegler, 915 S.W.2d 629, 639–40 (Tex. App.—Amarillo 1996, writ denied) (finding that to avoid paying child support obligor intentionally engaged in activities that did not produce income when he could have been gainfully employed elsewhere).

The trial court is not required to find that voluntary unemployment is for the primary purpose of avoiding a child support obligation before setting support based on the obli­gor’s earning potential. Iliff v. Iliff, 339 S.W.3d 74, 80 (Tex. 2011). However, it is not enough to simply show that the obligor is failing to maximize his potential. The obligee must show that the actual earnings of the obligor are “significantly less” than his earn­ings potential. Trumbull v. Trumbull, 397 S.W.3d 317, 321 (Tex. App.—Houston [14th Dist.] 2013, no pet.); In re J.D.A., No. 05-17-00053-CV, 2017 WL 6503094, at *3 (Tex. App.—Dallas Dec. 1, 2017, no pet.) (mem. op.) (once obligor offers proof of current wages, obligee must demonstrate obligor is intentionally unemployed or underemployed in order to receive child support computed on earning potential). There is no presumption that simply because a parent is no longer as lucratively employed as he was during the marriage, he is intentionally underemployed or unem­ployed. The requisite intent or lack thereof, however, may be inferred from such cir­cumstances as the parent’s education, economic adversities and business reversals, business background, and earning potential. Reddick v. Reddick, 450 S.W.3d 182 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Hardin v. Hardin, 161 S.W.3d 14 (Tex. App.—Houston [14th Dist.] 2004, no pet.); In re E.A.S., 123 S.W.3d 565, 570 (Tex. App.—El Paso 2003, pet. denied); In re Davis, 30 S.W.3d at 616–17; see also Warren v. Warren, No. 04-18-00195-CV, 2019 WL 1923236, at *2 (Tex. App.—San Antonio May 1, 2019, no pet.) (mem. op.) (mother found intentionally underemployed when she failed to renew her teaching license because it was not her “path goal”); Udobong v. Udobong, No. 14-16-00856-CV, 2018 WL 6424677, at *6 (Tex. App.—Houston [14th Dist.] Dec. 6, 2018, pet. denied) (mem. op.) (father’s argument that inability to gain more lucrative employment resulted from family violence protective order insufficient to rebut claim of intentional underemployment); In re I.Z.K., No. 04-16-00830-CV, 2018 WL 1176646, at *4 (Tex. App.—San Antonio Mar. 7, 2018, no pet.) (mem. op.) (absent actual evidence, mere speculation father could work as percussionist insuffi­cient to show intentional underemployment). 

At the same time, the court must keep in mind a parent’s right to pursue his or her own happiness. In re E.A.S., 123 S.W.3d at 570; Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.); DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex. App.—Tyler 1997, no pet.).

§ 9.25Deemed Income

To determine the net resources available for child support, the court may assign a rea­sonable amount of deemed income attributable to assets that do not currently produce income. The court shall also consider whether certain property that is not producing income can be liquidated without an unreasonable financial sacrifice because of cycli­cal or other market conditions. If there is no effective market for the property, the carry­ing costs of such an investment, including property taxes and note payments, shall be offset against the income attributed to the property. Tex. Fam. Code § 154.067(a). See Matthews v. Northrup, No. 01-09-00063-CV, 2010 WL 2133910 (Tex. App.—Houston [1st Dist.] May 27, 2010, pet. denied) (mem. op.) (father’s income from family partner­ship allocated to him for federal income tax reporting purposes but not actually distrib­uted to him properly considered “deemed income” to be considered in determining child support obligation); In re Driver, 895 S.W.2d 875, 877 (Tex. App.—Texarkana 1995, no writ).

The court may assign a reasonable amount of deemed income to income-producing assets that a party has voluntarily transferred or on which earnings have intentionally been reduced. Tex. Fam. Code § 154.067(b).

§ 9.26Minimum Wage Presumed

In the absence of evidence of a party’s resources, as defined by Family Code section 154.062(b), the court shall presume that the party has income equal to the federal mini­mum wage for a forty-hour week to which the support guidelines may be applied. The presumption does not apply if the court finds that the party is subject to an order of con­finement that exceeds ninety days and is incarcerated in a local, state, or federal jail or prison when the court makes the income determination. Tex. Fam. Code § 154.068. The court is permitted to presume, in the absence of proof otherwise, that an obligor has earned minimum wage from the time of his child’s birth. In re M.M., 980 S.W.2d 699, 700 (Tex. App.—San Antonio 1998, no pet.).

§ 9.27Net Resources of New Spouse

The court may not add any portion of the net resources of a spouse to the net resources of an obligor or obligee to calculate the amount of child support to be ordered. The court may not subtract the needs of a spouse, or of a dependent of a spouse, from the net resources of the obligor or obligee. Tex. Fam. Code § 154.069; see Starck v. Nelson, 878 S.W.2d 302, 305–06 (Tex. App.—Corpus Christi–Edinburg 1994, no writ) (trial court erred in considering income of obligor’s wife for purpose of deviating from guidelines). See In re Knott, 118 S.W.3d 899 (Tex. App.—Texarkana 2003, no pet.) (trial court erred by adding new spouse’s income to obligor’s to determine obligor’s net resources, particularly when new spouse’s investment income was her separate prop­erty under terms of premarital agreement). See also Koenig v. DeBerry, No. 03-09-00252-CV, 2010 WL 1009170 (Tex. App.—Austin Mar. 17, 2010, no pet.) (mem. op.) (retirement funds subject to father’s sole management, control, and disposition were properly considered in determining his child support obligation); In re J.C.K., 143 S.W.3d 131 (Tex. App.—Waco 2004, no pet.) (trial court erred in including income generated by community property subject to sole management and control of obligor’s spouse in calculating obligor’s net resources).

§ 9.28Child Support Received by Obligor Included

In a situation involving multiple households due child support, child support received by an obligor shall be added to the obligor’s net resources to compute the net resources before determining the child support credit or applying the percentages in the multiple household table. Tex. Fam. Code § 154.070.

§ 9.29Application of Guidelines

The child support guidelines in the Family Code are intended to guide the court in determining an equitable amount of child support. Tex. Fam. Code § 154.121. The amount of a periodic child support payment established by the child support guidelines in effect at the time of the hearing is presumed to be reasonable. An order of support conforming to the guidelines is presumed to be in the best interest of the child. Tex. Fam. Code § 154.122(a). An automatic increase for future child support payments is an abuse of discretion. Starck v. Nelson, 878 S.W.2d 302, 307 (Tex. App.—Corpus Christi–Edinburg 1994, no writ). A court, however, may determine that the application of the guidelines would be unjust or inappropriate under the circumstances. Tex. Fam. Code § 154.122(b).

§ 9.30Additional Factors

The trial court is accorded broad discretion in setting child support payments, and, absent a clear abuse of discretion, the trial court’s order will not be disturbed on appeal. Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.); In re Davis, 30 S.W.3d 609, 616 (Tex. App.—Texarkana 2000, no pet.). The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interests of the child and justifies a variance from the guidelines. The court may also refuse to award child support to the custodial parent based on the other par­ent’s demonstrated inability to earn a living wage. O’Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex. App.—Austin 2002, no pet.).

It is an abuse of discretion for the court to enter a child support order when there is no evidence to support its findings concerning the obligor’s net resources. In re C.H.C., 396 S.W.3d 33, 56 (Tex. App.—Dallas 2013, no pet.) (court relied on testimony regard­ing earnings from pretrial hearing, but transcript of testimony was not authenticated or entered into evidence during trial). In In re T.M., No. 02-19-00114-CV, 2019 WL 4010226 (Tex. App.—Fort Worth Aug. 20, 2019, pet. denied) (mem. op.), the parent’s income was deemed to be $8,550 based on available information and because the par­ent failed to comply with discovery requests.

In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including the age and needs of the child; the ability of the parents to contribute to the support of the child; any financial resources available for the support of the child; the amount of time of possession of and access to a child; the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obli­gee is significantly less than what the obligee could earn because the obligee is inten­tionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee; child care expenses incurred by either party to maintain gainful employment; whether either party has the managing conservatorship or actual physical custody of another child; the amount of alimony or spousal maintenance actually and currently being paid or received by a party; the expenses for a son or daughter for education beyond secondary school; whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity; the amount of other deductions from the wage or salary income and from other com­pensation for personal services of the parties; provision for health-care insurance and payment of uninsured medical expenses; special or extraordinary educational, health-care, or other expenses of the parties or of the child; the cost of travel in order to exer­cise possession of and access to a child; positive or negative cash flow from any real and personal property and assets, including a business and investments; debts or debt service assumed by either party; and any other reason consistent with the best interests of the child, taking into consideration the circumstances of the parents. Tex. Fam. Code § 154.123. The list of evidentiary factors provided in the Family Code is not exhaus­tive. A court may reasonably consider any factor it deems relevant. Sanchez v. Sanchez, 915 S.W.2d 99, 102–03 (Tex. App.—San Antonio 1996, no writ). While the court may consider the needs of the child as an additional factor in deviating from the guidelines, the court need not base the child support order solely on the needs of the child to the exclusion of other factors, such as the obligor’s net resources. Cortez v. Garza, No. 01-21-00062-CV, 2022 WL 3649636, at *6 (Tex. App.—Houston [1st Dist.] Aug. 25, 2022, no pet. h.) (mem. op.); see also In re K.F., No. 02-21-00056-CV, 2021 WL 5742239, at *6 (Tex. App.—Fort Worth Dec. 2, 2021, no pet.) (mem. op.) (family monthly expenses and proven needs of child are not same thing).

In Goyal v. Hora, No. 03-19-00868-CV, 2021 WL 2149628, at *2–4 (Tex. App.—Aus­tin May 27, 2021, no pet.) (mem. op.), and Klages v. Klages, No. 03-20-00086-CV, 2021 WL 2604064, at *3–5 (Tex. App.—Austin June 25, 2021, no pet.) (mem. op.), the courts discussed the factors considered, including the fact that the noncustodial parent was not consistently exercising periods of possession. See also Colbert-Noll v. Attorney General, No 01-20-00660-CV, 2021 WL 4095579, at *5 (Tex. App.—Houston [1st Dist.] Sept. 9, 2021, no pet.) (mem. op.) (reducing child support to offset cost of travel to exercise visitation was not abuse of discretion, even though father had infrequently exercised right to possession in previous years).

§ 9.31Guidelines for Net Resources of $9,200 or Less

The Family Code guidelines for the support of a child are specifically designed to apply to situations in which the obligor’s monthly net resources are not greater than a pre­scribed amount that is published by the title IV-D agency in the Texas Register. See Tex. Fam. Code § 154.125(a). The amount is to be adjusted for inflation every six years. Tex. Fam. Code § 154.125(a–1). The adjustment to the current amount, $9,200, took effect September 1, 2019.

One set of guidelines applies if the obligor’s monthly net resources are not greater than $9,200 and are equal to or greater than $1,000. Another set of guidelines applies if the obligor’s monthly net resources are less than $1,000.

If the obligor’s monthly net resources are at least $1,000 but not greater than $9,200, the court shall presumptively apply the following schedule in rendering the child sup­port order:

Child Support Guidelines Based on the Monthly
Net Resources of the Obligor:

1 child   20% of obligor’s net resources

2 children   25% of obligor’s net resources

3 children   30% of obligor’s net resources

4 children   35% of obligor’s net resources

5 children   40% of obligor’s net resources

6+ children   Not less than the amount for 5 children

Tex. Fam. Code § 154.125(b).

If the obligor’s monthly net resources are less than $1,000, the court shall presump-tively apply the following schedule in rendering the child support order:

Low-Income Child Support Guidelines Based on the Monthly
Net Resources of the Obligor:

1 child   15% of obligor’s net resources

2 children   20% of obligor’s net resources

3 children   25% of obligor’s net resources

4 children   30% of obligor’s net resources

5 children   35% of obligor’s net resources

6+ children   Not less than the amount for 5 children

Tex. Fam. Code § 154.125(c).

§ 9.32Guidelines for Net Resources of More Than $9,200

If the obligor’s net resources exceed $9,200 per month, the court shall presumptively apply the percentage guidelines to the first $9,200 of the obligor’s net resources. With­out further reference to the percentage recommended by the guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child. Tex. Fam. Code § 154.126(a). If the court orders additional child support beyond the presumptive amount, the court must make written findings regarding the specific reasons for deviating from the guidelines. See Tex. Fam. Code § 154.130. While the findings are required when the amount of child support is set or modified by the court, the court need not make specific findings on the “needs of the child” when a motion to modify is denied. In re J.A.H., 311 S.W.3d 536, 543 (Tex. App.—El Paso 2009, no pet.). The following reasons have been found suffi­cient: best interests of the child, age and needs of the child, financial resources available for the support of the child, the child’s special and extraordinary expenses (for example, a bodyguard), and positive cash flow from the obligor’s assets. See In re Gonzalez, 993 S.W.2d 147 (Tex. App.—San Antonio 1999, no pet.).

To establish private school as a proven need, evidence must show something special that makes the particular child need some aspect of private schooling. Although the child’s “needs” should not be based on the lifestyle of the family, the court noted that the father had additional financial resources available to contribute to the support of the child, such as the $8 million signing bonus when he entered the NFL. In re J.A.V., No. 04-21-00084-CV, 2022 WL 379316, at *6 (Tex. App.—San Antonio Feb. 9, 2022, no pet.) (mem. op.).

In In re C.S., No. 04-20-00421-CV, 2021 WL 5496159, at *6 (Tex. App.—San Antonio Nov. 24, 2021, no pet.) (mem. op.), the trial court erred in requiring the father to pay 50 percent of all extracurricular expenses on top of the maximum child support award, as this was tantamount to an order for additional child support and was an abuse of discre­tion absent any evidence of “needs” of the children.

“Needs of the child” is not defined by statute, nor has the supreme court provided a comprehensive definition. The term needs includes more than bare necessities but is not to be determined based on the lifestyle of the family. See Rodriguez v. Rodriguez, 860 S.W.2d 414, 418. n.3 (Tex. 1993); In re K.F., No. 02-21-00056-CV, 2021 WL 5742239, at *6 (Tex. App.—Fort Worth Dec. 2, 2021, no pet.) (mem. op.) (children’s monthly expenses and proven needs are not same thing). Further, the managing conservator is in the best position to explain the child’s needs, and expert testimony is generally not required. See In re Gonzalez, 993 S.W.2d at 159–60; see also McCain v. McCain, 980 S.W.2d 800, 802 (Tex. App.—Fort Worth 1998, no pet.); Scott v. Younts, 926 S.W.2d 415, 420–21 (Tex. App.—Corpus Christi–Edinburg 1996, writ denied). The court is not limited to considering only the needs of the child at the time of the order; estimates and projections of future expenses and needs of the children are as relevant and probative as past and current expenses and needs. Zajac v. Penkava, 924 S.W.2d 405, 408–09 (Tex. App.—San Antonio 1996, no writ).

The proper calculation of a child support order that exceeds the presumptive amount established for the first $9,200 of the obligor’s net resources requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the cir­cumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child. Tex. Fam. Code § 154.126(b).

The dollar amount is to be adjusted for inflation every six years. Tex. Fam. Code § 154.125(a–1). The adjustment to $9,200 took effect September 1, 2019.

§ 9.33Reduction as Number of Eligible Children Decreases

A child support order for more than one child shall provide that, on the termination of support for a child, the level of support for the remaining child or children is in accor­dance with the child support guidelines. A child support order is in compliance with this requirement if the order contains a provision that specifies the events, including a child’s reaching the age of eighteen years or otherwise having the disabilities of minority removed, that have the effect of terminating the obligor’s support obligation for that child and the reduced total amount that the obligor is required to pay each month after the occurrence of such an event. Tex. Fam. Code § 154.127.

§ 9.34Guidelines for Children in More Than One Household

Different rules apply if the obligor has children in more than one household. In such a situation, the court may determine the child support amount for the children before the court by applying the percentages in the table below to the obligor’s net resources.

If the obligor’s monthly net resources are $9,200 or less but at least $1,000:

Multiple Family Adjusted Guidelines
(% of Net Resources)

Number of children before the court

Tex. Fam. Code § 154.129(a).

If the obligor’s monthly net resources are less than $1,000:

Low-Income Multiple Family Adjusted Guidelines
(% of Net Resources)

Number of children before the court

Tex. Fam. Code § 154.129(b).

The provisions for “multiple households” refer to households in which some of the obligor’s children are not before the court. The provisions do not apply if the “multiple households” involve the split possession of children between mother and father and all children are before the court. In re S.M., 616 S.W.3d 53, 57 (Tex. App.—Tyler 2020, no pet.).

§ 9.35Findings of Fact in Child Support Order

In rendering an order of child support, the court must make certain findings if a party files a written request with the court before the final order is signed, but not later than twenty days after the date of rendition of the order, a party makes an oral request in open court during the hearing, or the amount of child support ordered by the court var­ies from the amount computed by applying the percentage guidelines under Code sec­tion 154.125 or 154.129, as applicable. Tex. Fam. Code § 154.130(a); see In re Marriage of Butts, 444 S.W.3d 147, 154 (Tex. App.—Houston [14th Dist.] 2014, no pet.). If findings are required, the court shall state whether the application of the guide­lines will be unjust or inappropriate and shall state the following in the child support order:

1.The net resources of the obligor per month are $______.

2.The net resources of the obligee per month are $______.

3.The percentage applied to the obligor’s net resources for child support is ______ percent.

4.If applicable, the specific reasons that the amount of child support per month ordered by the court varies from the amount computed by applying the percent­age guidelines under Code section 154.125 or 154.129, as applicable.

Tex. Fam. Code § 154.130(b).

Findings as to the obligee’s net resources are required only if evidence of the obligee’s monthly net resources has been offered. Tex. Fam. Code § 154.130(c).

The court must respond to a timely request for an explanation of any variance from the guidelines, and the failure of the court to justify such variance constitutes reversible error. See Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (per curiam) (obligor has right to demand specific findings of court for deviation from guidelines); Hanna v. Hanna, 813 S.W.2d 626, 627–28 (Tex. App.—Houston [1st Dist.] 1991, no writ) (fail­ure of court to make specific findings requested by obligee constituted reversible error); Haney v. Haney, 834 S.W.2d 490, 491 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (though not in order, findings of court recorded on docket sheet satisfy require­ments of law); see also Morris v. Morris, 757 S.W.2d 466, 467 (Tex. App.—Houston [14th Dist.] 1988, writ denied).

COMMENT:      Unless it is very clear that the child support ordered by the court does not vary from the amount computed by applying the percentage guidelines, the complain­ing party should make a request at the hearing or within twenty days of the rendition of the order. The statute appears to provide that the twenty-day time limit does not apply if there is a variation from the child support guidelines. See Tex. Fam. Code § 154.130(a); see also Tenery, 932 S.W.2d at 29 (findings of fact requested pursuant to rule 296 held to be timely when record revealed clear variation from guidelines). How­ever, since a prematurely filed request for findings of fact and conclusions of law does not render them ineffective, out of an abundance of caution, the best practice would be to make all requests for findings of fact in child support cases within twenty days of the rendition of the order. See Tex. R. Civ. P. 306c (prematurely filed requests for findings of fact and conclusions of law shall not be held ineffective and shall be deemed to have been filed on date of, but subsequent to, time of signing of judgment).

§ 9.36Agreement Concerning Support

The parties may enter into a written agreement containing provisions for support of the child and for modification of the agreement, including variations from the child support guidelines. If the court finds that the agreement is in the child’s best interests, the court shall render an order in accordance with the agreement. Terms of the agreement pertain­ing to child support in the order may be enforced by all remedies available for enforce­ment of a judgment, including contempt, but are not enforceable as a contract. If the court finds the agreement is not in the child’s best interests, the court may request the parties to submit a revised agreement or the court may render an order for the support of the child. Tex. Fam. Code § 154.124.

§ 9.37Application of Guidelines to Children of Certain Obligors

In applying the child support guidelines for an obligor who has a disability and is required to pay support for a child who receives benefits as a result of the obligor’s dis­ability, the court shall subtract the amount or value of those benefits from the amount of child support that would be ordered under the guidelines. Tex. Fam. Code § 154.132; In re D.T.S., No. 05-12-00110-CV, 2013 WL 4082302 (Tex. App.—Dallas Aug. 13, 2013, no pet.) (mem. op.); In re G.L.S., 185 S.W.3d 56 (Tex. App.—San Antonio 2005, no pet.). This provision, however, does not require the trial court to order an obligee to reimburse the obligor for child support payments previously made once the children receive a lump-sum disability award covering the same period. In re H.J.W., 302 S.W.3d 511, 512 (Tex. App.—Dallas 2009, no pet.). In Reyes v. Gonzales, 22 S.W.3d 516, 519–20 (Tex. App.—El Paso 2000, pet. denied), the court held that the obligor’s Supplemental Security Income (SSI) disability benefits could not be considered in the calculation of his net resources for purposes of determining his child support obligation. However, in an enforcement proceeding in which child support arrearages had been assigned to the state when the children received public assistance, the obligor’s Social Security disability benefits, which had been paid to the children, could not be credited against his child support arrearages. In re K.E.T., 974 S.W.2d 760, 762 (Tex. App.—San Antonio 1998, no pet.). A lump-sum payment for disability benefits paid to the obligor’s children can be credited against both his child support arrears and his future child support obligation. In re R.D.E., 627 S.W.3d 798, 801–02 (Tex. App.—Corpus Christi–Edinburg 2021, pet. denied).

Although the trial court is specifically required by section 154.132 to deduct the amount of disability payments the children receive from the amount of child support due under the guidelines, there is no similar provision relating to an amount ordered for medical support. In re H.J.W., 302 S.W.3d at 514 (trial court was not required to abate obliga­tion to pay medical support in light of disability payments paid to children).

In applying the child support guidelines for an obligor who is receiving Social Security old age benefits and who is required to pay support for a child who receives benefits as a result of the obligor’s receipt of old age benefits, the court shall subtract the amount or value of the benefits paid the child from the amount of child support that would be ordered under the guidelines. Tex. Fam. Code § 154.133.

 

 

 

[Sections 9.38 through 9.40 are reserved for expansion.]

III.  Medical Support and Dental Support

§ 9.41Medical Support Order

The court shall render an order for the medical support of the child in a proceeding in which periodic payments are ordered under chapter 154 or modified under chapter 156; any other suit affecting the parent-child relationship in which the court determines that medical support of the child must be established, modified, or clarified; or, a proceed­ing under chapter 159. Tex. Fam. Code § 154.181(a); see Tex. Fam. Code § 154.008. This medical support, including the costs of health insurance coverage or cash medical support, is in addition to the amount that the obligor is required to pay for child support under the guidelines; is a child support obligation; and may be enforced by any means available for the enforcement of a child support obligation, including withholding from earnings. Tex. Fam. Code § 154.183(a). As additional support, the court shall allocate between the parties, according to their circumstances, the reasonable and necessary health-care expenses, including vision and dental expenses, of the child that are not reimbursed by insurance or are not otherwise covered by ordered cash medical support, as well as insurance deductibles or copayments paid by either party for the child. Tex. Fam. Code § 154.183(c).

Before a hearing on temporary orders or a final order, if no hearing on temporary orders is held, the court shall require the parties to disclose the following information in a pleading or other statement: (1) if private health insurance is in effect for the child, the identity of the insurance company, the policy number, which parent is responsible for payment of the premium, whether insurance is provided through a parent’s employ­ment, and the cost of the premium or (2) if private health insurance is not in effect, whether (a) the child is receiving medical assistance under chapter 32, Human Resources Code (Medicaid program); (b) the child is receiving health benefits under chapter 62, Health and Safety Code (Children’s Health Insurance Program (CHIP)), and the cost of any premium; and (c) either parent has access to private health insurance “at reasonable cost” to the obligor. Tex. Fam. Code § 154.181(b).

“Reasonable cost” means the cost of health insurance coverage for a child that does not exceed 9 percent of the obligor’s annual resources, as described by section 154.062(b), if the obligor is responsible under a medical support order for the cost of health insur­ance coverage for only one child. If the obligor is responsible under a medical support order for the cost of health insurance coverage for more than one child, “reasonable cost” means the total cost of health insurance coverage for all children for whom the obligor is responsible under a medical support order that does not exceed 9 percent of the obligor’s annual resources, as described by section 154.062(b). Tex. Fam. Code § 154.181(e).

In rendering temporary orders, except for good cause shown, the court shall order that any health insurance in effect for the child continue in effect until the rendition of a final order, except that the court may not require continuation of any health insurance that is not available at a reasonable cost to the obligor. If no health insurance is in effect for the child or the insurance in effect is not available at reasonable cost to the obligor, the court shall, except for good cause shown, order coverage for the child, as provided under section 154.182. Tex. Fam. Code § 154.181(c).

On rendering a final order, the court shall make specific findings with respect to the manner in which health-care coverage is to be provided for the child, in accordance with the priorities identified in section 154.182, and, except for good cause shown or on agreement of the parties, require the parent ordered to provide health-care coverage to produce evidence to the court’s satisfaction that the parent has applied for or secured health insurance or has otherwise taken necessary action to provide insurance, as ordered. Tex. Fam. Code § 154.181(d).

In ordering a parent to provide health-care coverage for the child, the court shall con­sider the cost, accessibility, and quality of health insurance coverage available to the parties and shall give priority to health insurance coverage available through the employment of one of the parties if the coverage is available at a reasonable cost to the obligor. Tex. Fam. Code § 154.182(a). “Accessibility” means the extent to which health insurance coverage for a child provides for the availability of medical care within a rea­sonable traveling distance and time from the child’s primary residence, as determined by the court. Tex. Fam. Code § 154.182(c)(1).

Unless a party shows good cause why a particular order would not be in the best inter­ests of the child, the court shall render its order in accordance with the following priori­ties:

1.If health insurance is available for the child at reasonable cost through a par­ent’s employment or membership in a union, trade association, or other organi­zation, the court shall order that parent to include the child in the parent’s health insurance. Tex. Fam. Code § 154.182(b)(1).

2.If health insurance is not available for the child through a parent’s employment or membership at reasonable cost but is available to a parent at a reasonable cost from another source, including the program under section 154.1826 to pro­vide health insurance in title IV-D cases, the court may order that parent to pro­vide health insurance for the child. Tex. Fam. Code § 154.182(b)(2).

3.If health insurance coverage is not available through either of the above means, the court shall order the obligor to pay the obligee, in addition to child support, an amount, not to exceed 9 percent of the obligor’s annual resources, as described by section 154.062(b), as cash medical support for the child. Tex. Fam. Code § 154.182(b)(3).

If the parent ordered to provide health insurance is the obligee, the court shall order the obligor to pay the obligee, as additional child support, an amount equal to the actual cost of health insurance for the child, but not to exceed a reasonable cost to the obligor. In calculating that actual cost, if the obligee has other minor dependents covered under the same health insurance plan, the court shall divide the total cost to the obligee for the insurance by the total number of minor dependents, including the child covered under the plan. Tex. Fam. Code § 154.182(b–1).

Once the court orders the obligee to provide health insurance, the court is not required to modify that order simply because the obligor later obtains health-care coverage through his employer. In re M.M.S., 256 S.W.3d 470, 474 (Tex. App.—Dallas 2008, no pet.).

If the court finds that neither parent has access to private health insurance at a reason­able cost to the obligor, the court shall order the parent awarded the exclusive right to designate the child’s primary residence (or, to the extent permitted by law, the other par­ent) to apply immediately on the child’s behalf for participation in a government medi­cal assistance program or health plan. If the child participates in such a program or plan, the court shall order cash medical support as described in item 3 above. Tex. Fam. Code § 154.182(b–2).

An order requiring the payment of cash medical support as described in item 3 above must allow the obligor to discontinue paying the cash medical support if health insur­ance for the child becomes available to the obligor at a reasonable cost and the obligor enrolls the child in the insurance plan and provides the obligee and, if applicable, the title IV-D agency the information required under Code section 154.185. Tex. Fam. Code § 154.182(b–3).

The court shall order a parent providing health insurance to furnish to either the obligee, obligor, or child support agency specified information necessary to ensure health insur­ance coverage not later than the thirtieth day after the date the notice of rendition of the order is received. See Tex. Fam. Code § 154.185(a). The court shall also order a parent providing health insurance to furnish the obligor, obligee, or child support agency with additional information regarding the health insurance coverage not later than the fif­teenth day after the date the information is received by the parent. Tex. Fam. Code § 154.185(b).

§ 9.42Dental Support Order

The court shall render an order for the dental support of the child in a suit affecting the parent-child relationship or a proceeding under Family Code chapter 159 (UIFSA). Tex. Fam. Code § 154.1815(b); see Tex. Fam. Code § 154.008. This dental support, including the costs of dental insurance coverage, is in addition to the amount that the obligor is required to pay for child support under the guidelines; is a child support obli­gation; and may be enforced by any means available for the enforcement of a child sup­port obligation, including withholding from earnings. Tex. Fam. Code § 154.183(a). As additional support, the court shall allocate between the parties, according to their cir­cumstances, the reasonable and necessary health-care expenses, including vision and dental expenses, of the child that are not reimbursed by insurance or are not otherwise covered by ordered cash medical support, as well as insurance deductibles or copay­ments paid by either party for the child. Tex. Fam. Code § 154.183(c).

Before a hearing on temporary orders, or a final order if no hearing on temporary orders is held, the court shall require the parties to disclose in a pleading or other statement whether the child is covered by dental insurance and, if so, the identity of the insurer, the policy number, which parent is responsible for payment of the premium, whether the coverage is provided through a parent’s employment, and the cost of the premium. If dental insurance is not in effect, the parties must disclose whether either parent has access to dental insurance “at reasonable cost” to the obligor. Tex. Fam. Code § 154.1815(c).

“Reasonable cost” means the cost of a dental insurance premium that does not exceed 1.5 percent of the obligor’s annual resources, as described by section 154.062(b), if the obligor is responsible under a dental support order for the cost of dental insurance cov­erage for only one child. If the obligor is responsible under a dental support order for the cost of dental insurance coverage for more than one child, “reasonable cost” means the total cost of dental insurance coverage for all children for whom the obligor is responsible under a dental support order that does not exceed 1.5 percent of the obli­gor’s annual resources, as described by section 154.062(b). Tex. Fam. Code § 154.1815(a).

In rendering temporary orders, the court shall, except for good cause shown, order that any dental insurance coverage in effect for the child continue in effect until the rendi­tion of a final order, except that the court may not require continuation of any dental insurance that is not available to the parent at a reasonable cost to the obligor. If no den­tal insurance is in effect for the child or the insurance in effect is not available at reason­able cost to the obligor, the court shall, except for good cause shown, order coverage for the child as provided under section 154.1825. Tex. Fam. Code § 154.1815(d).

On rendering a final order, the court shall make specific findings with respect to the manner in which dental insurance coverage is to be provided for the child, in accor­dance with the priorities identified in section 154.1825, and, except for good cause shown or on agreement of the parties, require the parent ordered to provide dental insur­ance coverage to produce evidence to the court’s satisfaction that the parent has applied for or secured dental insurance or has otherwise taken necessary action to provide insurance, as ordered. Tex. Fam. Code § 154.1815(e).

In ordering a parent to provide dental coverage for the child, the court shall consider the cost, accessibility, and quality of dental insurance coverage available to the parties and shall give priority to dental insurance coverage available through the employment of one of the parties if the coverage is available at a reasonable cost to the obligor. Tex. Fam. Code § 154.1825(b). “Accessibility” means the extent to which dental insurance coverage for a child provides for the availability of dental care within a reasonable trav­eling distance and time from the child’s primary residence, as determined by the court. Tex. Fam. Code § 154.1825(a)(1).

Unless a party shows good cause why a particular order would not be in the best inter­ests of the child, the court shall render its order in accordance with the following priori­ties:

1.If dental insurance is available for the child at reasonable cost through a par­ent’s employment or membership in a union, trade association, or other organi­zation, the court shall order that parent to include the child in the parent’s dental insurance. Tex. Fam. Code § 154.1825(c)(1).

2.If dental insurance is not available for the child through a parent’s employment or membership at reasonable cost but is available to a parent at a reasonable cost from another source, the court may order that parent to provide dental insurance for the child. Tex. Fam. Code § 154.1825(c)(2).

If the parent ordered to provide dental insurance is the obligee, the court shall order the obligor to pay the obligee, as additional child support, an amount equal to the actual cost of dental insurance for the child, but not to exceed a reasonable cost to the obligor. In calculating that actual cost, if the obligee has other minor dependents covered under the same dental insurance plan, the court shall divide the total cost to the obligee for the insurance by the total number of minor dependents, including the child covered under the plan. Tex. Fam. Code § 154.1825(d).

The court shall order a parent providing dental insurance to furnish to either the obligee, obligor, or child support agency specified information necessary to ensure dental insur­ance coverage not later than the thirtieth day after the date the notice of rendition of the order is received. See Tex. Fam. Code § 154.185(a). The court shall also order a parent providing dental insurance to furnish the obligor, obligee, or child support agency with additional information regarding the dental insurance coverage not later than the fif­teenth day after the date the information is received by the parent. Tex. Fam. Code § 154.185(b).

§ 9.43Qualified Medical Child Support Order

The federal Employee Retirement Income Security Act (ERISA) makes provision for a qualified medical child support order. 29 U.S.C. § 1169. A group health plan that is pro­vided by a private employer or employee organization is governed by the terms of ERISA. 29 U.S.C. § 1001. These provisions supersede any state laws that relate to such a plan. 29 U.S.C. § 1144.

A medical child support order meets the requirements of a qualified medical child sup­port order only if that order clearly specifies the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate recipient covered by the order (except that the order may permit substitution of the name and mailing address of an official for the mailing address of any alternate recipi­ent); a reasonable description of the type of coverage to be provided to each alternate recipient or the manner in which the type of coverage is to be determined; and the period to which the order applies. Additionally, to be found qualified, a medical support order may not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan. 29 U.S.C. § 1169(a)(2)(A), (a)(3), (a)(4).

In 1998, Congress amended ERISA to provide that if an employer of a noncustodial parent receives a completed national medical support notice, the notice shall be deemed a qualified medical child support order. See Child Support Performance and Incentive Act of 1998, Pub. L. No. 105–200, 112 Stat. 645 (CSPIA). See form 9-1 in this manual for a copy of the national medical support notice, jointly promulgated by the U.S. Department of Health and Human Services and the Department of Labor and effective on March 27, 2001. Pursuant to the CSPIA, each state must enact laws to mandate the use of the national medical support notice in all title IV-D cases. In Texas, use of the form became mandatory in title IV-D cases in July 2003. The notice may also be used by a party in a case not being enforced by the title IV-D agency. Tex. Fam. Code § 154.186(b).

Any payment for benefits made by a group health plan under a medical child support order in reimbursement for expenses paid by an alternate recipient or the custodial par­ent or legal guardian of the alternate recipient shall be made to the alternate recipient or the alternate recipient’s custodial parent or legal guardian. 29 U.S.C. § 1169(a)(8). In other words, the order may provide that the insurance company pay the benefits to the managing conservator.

Any group health plan that complies with ERISA must contain a provision for benefits in accordance with the applicable requirements of any qualified medical child support order. A qualified medical child support order is deemed to apply to each group health plan that has received the order, from which the participant or beneficiary is eligible to receive benefits, and with respect to which the order does not require the provision of any type or form of benefit or option that the plan does not otherwise provide. 29 U.S.C. § 1169(a)(1).

The following definitions apply under ERISA:

Child:      The term child includes any child adopted by, or placed for adoption with, a participant of a group health plan. 29 U.S.C. § 1169(a)(2)(D).

Participant:      The term participant means any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan that covers employees of that employer or members of that organization or whose beneficia­ries may be eligible to receive any such benefit. 29 U.S.C. § 1002(7).

Alternate recipient:      The term alternate recipient means any child of a participant who is recognized under a medical child support order as having a right to enrollment under a group health plan with respect to the participant. 29 U.S.C. § 1169(a)(2)(C). Note that the child, not the other parent, is the “alternate recipient.”

Medical child support order:      The term medical child support order means any judg­ment, decree, or order issued by a court of competent jurisdiction or issued through a state administrative process and having the force and effect of state law that (1) pro­vides for child support with respect to a child of a participant under a group health plan or provides for health benefit coverage to such a child, is made in accordance with state law, and relates to benefits under the group health plan or (2) enforces a law relating to medical child support described in 42 U.S.C. section 1396g–1 with respect to a group health plan. An appropriate administrative order shall be treated as a qualifying order. 29 U.S.C. § 1169(a)(2)(B).

Qualified medical child support order:      The term qualified medical child support order means a medical child support order that creates or recognizes the existence of an alternate recipient’s right to, or assigns to an alternate recipient the right to, receive ben­efits for which a participant or beneficiary is eligible under a group health plan and which provides the information and meets the restrictions provided in the statute. 29 U.S.C. § 1169(a)(2)(A).

COMMENT:      The federal and Texas statutes conflict very little, if at all. The careful attorney should comply with both statutes whenever possible. If the two statutes are in conflict, the attorney should comply with the federal statute.

Instructions for Completion of National Medical Support Notice:      The National Medical Support Notice (NMSN) consists of Part A, which includes the Qualified Med­ical Child Support Order and instructions to the employer, and an Employer’s Response, to be completed by the employer if enrollment is not possible. Part B includes the Medical Support Notice to Plan Administrator, with instructions, and the Plan Administrator Response, which must be returned to the sender of the NMSN within forty business days after receipt of the NMSN.

The sender of the notice must complete three blanks in the sections regarding limita­tions on withholding and priority of withholding. These are to be determined by the state law of the state of the obligor’s principal place of employment. The first blank to be populated is to inform the employer of the state limit on withholding if it is more restrictive than the federal Consumer Credit Protection Act. Since Texas law places no limit on the amount that an employer can withhold for court-ordered dependent insur­ance premiums, the federal law applies if the obligor is employed in Texas, and the blank should be completed: “the applicable Consumer Credit Protection Act %.”

The second blank should be completed with the amount specified for the health insur­ance premium in the child support order. If the order does not specify the amount of the premium, the blank should be completed: “Not applicable.”

The third blank requires the sender of the NMSN to describe the priority of withholding between court-ordered child support and dependent health insurance. For obligors employed in Texas, the blank should be completed: “Texas law requires that the employee contributions for health insurance are withheld first before withholding for cash support. If an employer is faced with two or more National Medical Support Notices and cannot comply with all of the notices, he should comply with the notices in the order in which they were first received.”

COMMENT:      The NMSN recognizes dental coverage as one of the coverage options that may be specified.

§ 9.44Claims Made by Custodial Parent

Any payment for benefits made by a group health plan in accordance with a medical child support order in reimbursement for expenses paid by the child or the child’s custo­dial parent or legal guardian shall be made to the child or the child’s custodial parent or legal guardian. 29 U.S.C. § 1169(a)(8). The Texas Insurance Code also provides that group health insurance benefits for a child may be paid to the managing conservator of that child. Tex. Ins. Code § 1204.251. The Insurance Code does not require a medical child support order; it requires only a certified copy of an order appointing the manag­ing conservator.

§ 9.45Notice to Employer

The obligee, the obligor, or a child support agency of Texas or another state may send the employer a copy of the order requiring an employee to provide health insurance coverage or dental insurance coverage for a child or may include notice of the medical support order or dental support order in an order or writ of withholding sent to the employer in accordance with Family Code chapter 158. Tex. Fam. Code § 154.186(a). In an appropriate title IV-D case, the title IV-D agency of Texas or another state shall send to the employer the national medical support notice required under part D, title IV, of the Federal Social Security Act (42 U.S.C. § 651 et seq.), as amended. The notice may be used in any other suit in which the obligor is ordered to provide health insur­ance coverage for a child. Tex. Fam. Code § 154.186(b).

§ 9.46Duties of Employer

Receipt of a medical support order requiring that health insurance be provided for a child or a dental support order requiring that dental insurance be provided for a child shall be considered a change in the family circumstances of the employee or member, for health insurance purposes and dental insurance purposes, equivalent to the birth or adoption of a child. If the employee or member is eligible for dependent health cover­age or dependent dental coverage, the employer shall automatically enroll the child for the first thirty-one days after the receipt of the order or notice of the medical support order or dental support order on the same terms and conditions as apply to any other dependent child. The employer shall notify the insurer of the automatic enrollment. During the thirty-one-day period, the employer and insurer shall complete all necessary forms and procedures to make the enrollment permanent or shall report the reasons the coverage cannot be made permanent. Tex. Fam. Code § 154.184.

An order or notice to an employer directing that health or dental insurance coverage be provided to a child of an employee or member is binding on a current or subsequent employer on receipt without regard to the date the order was rendered. If the employee or member is eligible for dependent health or dental coverage for the child, the employer shall immediately enroll the child in a health or dental insurance plan regard­less of whether the employee is enrolled in the plan. If dependent coverage is not avail­able to the employee or member through the employer’s health or dental insurance plan or enrollment cannot be made permanent or if the employer is not responsible or other­wise liable for providing coverage, the employer shall provide notice to the sender (the person who sent the copy of the order or notice to the employer). Tex. Fam. Code § 154.187(a), (f).

If additional premiums are incurred as a result of adding the child to the health or dental insurance plan, the employer shall deduct the health or dental insurance premium from the earnings of the employee and apply the amount withheld to payment of the insur­ance premium. Tex. Fam. Code § 154.187(b).

An employer who has received a medical or dental child support order or notice shall provide to the sender, not later than the fortieth day after the date the employer receives the order or notice, a statement that the child has been enrolled in the employer’s health or dental insurance plan or is already enrolled in another health or dental insurance plan in accordance with a previous child support or medical or dental support order to which the employee is subject or a statement that the child cannot be enrolled or cannot be permanently enrolled in the employer’s health or dental insurance plan providing the reason why coverage or permanent coverage cannot be provided. Tex. Fam. Code § 154.187(c). The notice must be provided to the sender by first-class mail unless the sender is the title IV-D agency, to which the notice may be provided electronically or by first-class mail. Tex. Fam. Code § 154.187(i).

If the employee ceases employment or if the health or dental insurance coverage lapses, the employer shall provide to the sender, not later than the fifteenth day after the date of the termination of employment or the lapse of the coverage, notice of the termination or lapse and of the availability of any conversion privileges. See Tex. Fam. Code § 154.187(d). The notice must be provided to the sender by first-class mail unless the sender is the title IV-D agency, to which the notice may be provided electronically or by first-class mail. Tex. Fam. Code § 154.187(i).

The employer must provide the sender, on request, certain information about the avail­able coverage. See Tex. Fam. Code § 154.187(e). Penalties and fines apply to an employer who fails to enroll a child, fails to withhold or remit premiums or cash medi­cal or dental support, or discriminates in hiring or employment on the basis of a medical support order or notice. Tex. Fam. Code § 154.187(g).

An employer who receives a national medical support order under Family Code section 154.186 shall comply with the requirements of the notice. Tex. Fam. Code § 154.187(h).

§ 9.47Failure to Provide Health Insurance or Dental Insurance

A parent ordered to provide health insurance or dental insurance or to pay the other par­ent additional child support for the cost of health or dental insurance who fails to do so is liable for (1) necessary medical or dental expenses of the child, without regard to whether the expenses would have been paid if health or dental insurance had been pro­vided, and (2) the cost of health or dental insurance premiums or contributions, if any, paid on behalf of the child. Tex. Fam. Code § 154.188.

§ 9.48Cancellation or Elimination of Coverage

Unless the employee or member ceases to be eligible for dependent coverage or the employer has eliminated dependent health coverage or dental coverage for all the employer’s employees or members, the employer may not cancel or eliminate coverage of a child enrolled under Family Code title 5, chapter 154, subchapter D, until the employer is provided satisfactory written evidence that the court order or administrative order requiring the coverage is no longer in effect or that the child is enrolled in compa­rable health insurance coverage or will be enrolled in comparable coverage that will take effect not later than the effective date of the cancellation or elimination of the employer’s coverage. Tex. Fam. Code § 154.192.

§ 9.49Continuation Coverage

The plan sponsor of each group health plan shall provide that each qualified beneficiary who would lose coverage under the plan as a result of a qualifying event is entitled to elect, within the election period, continuation coverage under the plan. 29 U.S.C. § 1161. Relevant qualifying events include the death of the covered employee and a dependent child’s ceasing to be a dependent child under the generally applicable requirements of the plan. See 29 U.S.C. § 1163(1), (5).

§ 9.50Support Order Not Qualified

If a plan administrator (or equivalent) determines that a medical support order or a den­tal support order issued under Family Code chapter 154, subchapter D, is not qualified for enforcement under federal law, the tribunal may, on its own motion or that of a party, render an order that qualifies. The procedure for filing a motion to enforce a final order applies to a motion for a qualifying order. There is no right to a jury, and the employer or plan administrator is not a necessary party. Tex. Fam. Code § 154.193.

IV.  Child Support Registry

§ 9.51Local Child Support Registry

COMMENT:      With the establishment of the state disbursement unit required by federal law (42 U.S.C. § 654b(1)), certain child support payments must be directed to that unit as provided by Family Code section 234.007(a). This includes all cases in which child support orders were initially rendered after January 1, 1994, in which the obligor is sub­ject to income withholding and, effective September 1, 2021, all child support even if not withheld by an employer. See also Tex. Fam. Code § 154.004 (place of payment). In 1999 the title IV-D agency was mandated to notify employers and obligors to redirect payments from local child support registries to the state disbursement unit. See Tex. Fam. Code § 234.007. However, the legislature did not repeal Family Code section 154.241, which authorizes local child support registries. Today only a handful of coun­ties continue to operate local registries pursuant to the adoption of local rules.

The local registry is a county agency or public entity operated under the authority of a district clerk, county government, juvenile board, juvenile probation office, domestic relations office, or other county agency or public entity that serves a county or a court that has jurisdiction under Family Code title 5 and that receives and distributes child support payments, maintains records of child support payments, and maintains custody of official child support payments. Tex. Fam. Code § 101.018. A private entity may perform the duties and functions of a local registry in receiving and distributing child support payments either under contract with a county commissioners court or a domes­tic relations office or under an appointment by a court. Tex. Fam. Code § 154.241(g).

If a county chooses to maintain a local registry, it must meet the operational require­ments set out in Family Code section 154.241.

 

 

 

[Sections 9.52 through 9.54 are reserved for expansion.]

V.  Child Support Review Process

§ 9.55Child Support Review Process

The title IV-D agency is authorized to take expedited administrative actions to estab­lish, modify, and enforce obligations for child support, medical support, and dental sup­port. A child support review order confirmed by a court constitutes an order of the court and is enforceable by any means available for enforcement of child support obligations. Tex. Fam. Code § 233.001. The procedures for confirmation vary according to whether the child support review order is agreed or not agreed. See generally Tex. Fam. Code §§ 233.001–.029.

If the child support review order is not agreed, the title IV-D agency files a petition to confirm the order. See Tex. Fam. Code § 233.020. A party may file a request for hear­ing within twenty days after the petition is delivered to that party. Tex. Fam. Code § 233.023. If a request for hearing has not been timely filed, the court shall confirm and sign a nonagreed child support review order not later than the thirtieth day after the date the petition for confirmation was delivered to the last party entitled to service. Tex. Fam. Code § 233.0271. A failure of the trial court to sign the confirmation order within thirty days of service does not render the order automatically void. An affected party may seek mandamus relief if the required judicial action is not performed within the statutorily mandated period, but the trial court does not lose subject-matter juris­diction to act. In re J.A.C., 362 S.W.3d 756, 761 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

 

 

 

 

 

[Sections 9.56 through 9.60 are reserved for expansion.]

VI.  Withholding from Earnings

§ 9.61Withholding Order Required

In a proceeding in which periodic payments of child support are ordered, modified, or enforced, the court or title IV-D agency shall order that income be withheld from the disposable earnings of the obligor. Tex. Fam. Code § 158.001. If the court does not order income withholding, an order for support must contain a provision for income withholding to ensure that withholding may be effected if a delinquency occurs. A child support order must be construed to contain a withholding provision even if the provi­sion has been omitted from the written order.

“Earnings” means a payment to or due an individual, regardless of the source or what the amounts are called. The term includes periodic or lump-sum payments for (1) wages, salary, compensation received as an independent contractor, overtime pay, severance pay, commission, bonus, and interest income; (2) payments made under a pension, an annuity, workers’ compensation, and a disability or retirement program; (3) unemployment benefits; (4) compensation from a transportation network company as defined by section 2402.001 of the Texas Occupations Code; and (5) compensation from a person that operates a technology platform used to make deliveries to customers. Tex. Fam. Code § 101.011.

“Disposable earnings” means the part of the obligor’s earnings that remain after deduc­tion of any amount required by law to be withheld; union dues; nondiscretionary retire­ment contributions; and medical, hospitalization, and disability insurance coverage for the obligor and the obligor’s children. Tex. Fam. Code § 101.010.

While an income withholding order must be rendered in every case, the order does not necessarily have to be delivered to the obligor’s employer. Except in a title IV-D case, the court may provide, for good cause or on agreement of the parties, that delivery of the order to an employer be suspended. Tex. Fam. Code § 158.002.

§ 9.62Withholding for Arrearages

In addition to income withheld for the current support of a child, income shall be with­held from the disposable earnings of the obligor to be applied toward the liquidation of any child support arrearages, including accrued interest. The additional amount to be withheld for arrearages shall be an amount sufficient to discharge those arrearages in not more than two years or an additional 20 percent added to the amount of the current monthly support order, whichever amount will result in the arrearages being discharged in the least amount of time. Tex. Fam. Code § 158.003.

If current support is no longer owed, the court or the title IV-D agency shall order that income be withheld for arrearages, including accrued interest as provided in Family Code chapter 157, in an amount sufficient to discharge those arrearages in not more than two years. Tex. Fam. Code § 158.004.

In rendering a cumulative judgment for arrearages, the court shall order that a reason­able amount of income be withheld from the disposable earnings of the obligor to be applied toward the satisfaction of the judgment. Tex. Fam. Code § 158.005.

If the court or the title IV-D agency finds that the schedule for discharging arrearages would cause the obligor, the obligor’s family, or children for whom support is due from the obligor to suffer unreasonable hardship, the court or agency may extend the pay­ment period for a reasonable length of time. Tex. Fam. Code § 158.007. The trial court has discretion with respect to determining what constitutes “a reasonable length of time” as related to the issue of “unreasonable hardship” and must decide the issue on the basis of any particular case. In re Chambers, 5 S.W.3d 341, 343 (Tex. App.—Texarkana 1999, no pet.).

§ 9.63Maximum Amount to Be Withheld

An order or writ of withholding shall direct that any employer of the obligor withhold from the obligor’s disposable earnings the amount specified up to a maximum amount of 50 percent of the obligor’s disposable earnings. Tex. Fam. Code § 158.009. There is not a minimum amount that the court must order paid each month on the arrearage, and a minimum payment sufficient to cover the interest accruing on the arrearage is not nec­essarily required. In re Chambers, 5 S.W.3d 341, 343 (Tex. App.—Texarkana 1999, no pet.); see also Ruffin v. Ruffin, 753 S.W.2d 824, 827 (Tex. App.—Houston [14th Dist.] 1988, no writ) (trial court may order up to 50 percent of obligor’s disposable earnings, including disability benefits, be withheld for liquidation of child support arrearages).

§ 9.64Limitations

An order or writ for income withholding under Family Code chapter 158 may be issued until all current support and child support arrearages, including interest, and any appli­cable fees and costs, including ordered attorney’s fees and court costs, have been paid. Tex. Fam. Code § 158.102; see In re Digges, 981 S.W.2d 445, 446–47 (Tex. App.—San Antonio 1998, no pet.) (upholding constitutionality of judicial writ of withholding pro­cess set out in chapter 158). The income withholding remedy is not subject to statute-of-limitations or due-process defenses. See In re A.D., 73 S.W.3d 244, 248–49 (Tex. 2002).

§ 9.65Contents of Withholding Order or Writ

An order of withholding or writ of withholding must contain the information required by the forms prescribed by the title IV–D agency for income withholding. Tex. Fam. Code § 158.103.

§ 9.66Forms for Income Withholding

The title IV-D agency prescribes forms as authorized by federal law in a standard for­mat entitled “Income Withholding for Support.” See Tex. Fam. Code § 158.106(a).

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), PL 104–193, section 324, mandated that each state title IV-D agency use a federal form promulgated by the secretary of the federal Department of Health and Human Services for interstate income withholding. See 42 U.S.C. § 654(9). This statu­tory requirement has been interpreted by the secretary of the federal Department of Health and Human Services to apply to both title IV-D and non–title IV-D cases, in not only interstate but also intrastate withholding. The form, which may be used as a judi­cial withholding document, an administrative writ, or an original or amended withhold­ing document or to terminate withholding, is published in the Texas Administrative Code, title 1, section 55.118. A copy of the form is available online at www.acf.hhs.gov/programs/css/resource/income-withholding-for-support-form.

COMMENT:      While federal law mandates that states enact legislation requiring the use of the standard form, state law controls with respect to many of the issues sur­rounding the use of the form. These include the maximum amount permitted to be withheld, the priorities for withholding and allocating among multiple obligees, and state law requirements or terms that might not be specified in the federal withholding form. See 42 U.S.C. § 666(b)(6)(A).

§ 9.67Request for Order or Writ of Withholding

A request for issuance of an order or judicial writ of withholding may be filed with the clerk of the court by the prosecuting attorney, the title IV-D agency, the friend of the court, a domestic relations office, the obligor, the obligee, or an attorney representing the obligor or the obligee. Tex. Fam. Code § 158.104.

On filing a request for issuance of an order or writ of withholding, the clerk of the court shall cause a certified copy of the order or writ to be delivered to the obligor’s current employer or to any subsequent employer of the obligor. The clerk shall issue and deliver the certified copy of the order or writ not later than the fourth working day after the date the order is signed or the request is filed, whichever is later. An order or writ of withholding shall be delivered to the employer by first-class mail or, if requested, by certified or registered mail, return receipt requested, by electronic transmission, includ­ing electronic mail or facsimile transmission, or by service of citation to the person authorized to receive service of process for the employer in civil cases generally or to a person designated by the employer, by written notice to the clerk, to receive orders or writs of withholding. The clerk may deliver the order or writ by electronic mail if the employer has an electronic mail address; the clerk must request acknowledgment of receipt from the employer or use a system with a read receipt capability. The clerk may deliver the order or writ by facsimile transmission if the employer is able to receive documents transmitted in that manner; the clerk’s facsimile machine must create a delivery confirmation report. Tex. Fam. Code § 158.105.

§ 9.68Employer’s Request for Hearing

The employer may file a motion with the court or file a request with the title IV-D agency for a hearing on the applicability of the order or writ to the employer. The motion must be filed not later than the twentieth day after the date the order or writ is delivered, and the hearing must be held not later than fifteen days after the motion or request is made. Pending further order of the court or action of the title IV-D agency, the order or writ remains binding. Tex. Fam. Code § 158.205.

§ 9.69Notice of Application for Judicial Writ of Withholding

A notice of application for judicial writ of withholding may be filed if a delinquency occurs in child support payments in an amount equal to or greater than the total support due for one month or if income withholding was not ordered at the time child support was ordered. Tex. Fam. Code § 158.301(a).

The notice of application for judicial writ of withholding may be filed in the court of continuing jurisdiction by the title IV-D agency, the attorney representing the local domestic relations office, the attorney appointed a friend of the court as provided in Family Code chapter 202, the obligor or obligee, or a private attorney representing the obligor or obligee. Tex. Fam. Code § 158.301(b).

§ 9.70Requirements of Notice of Application for Judicial Writ of Withholding

The notice of application for judicial writ of withholding is filed by the person, attor­ney, or agency seeking withholding. The notice shall be verified and (1) state the amount of monthly support due, including medical support and dental support, the amount of arrearages or anticipated arrearages, including accrued interest, and the amount of wages that will be withheld in accordance with a judicial writ of withhold­ing; (2) state that the withholding applies to each current or subsequent employer or period of employment; (3) state that if the obligor does not contest the withholding within ten days after the date of receipt of the notice, the obligor’s employer will be notified to begin the withholding; (4) describe the procedures for contesting the issu­ance and delivery of a writ of withholding; (5) state that if the obligor contests the with­holding, the obligor will be afforded an opportunity for a hearing by the court not later than the thirtieth day after the date of receipt of the notice of contest; (6) state that the sole ground for successfully contesting the issuance of a writ of withholding is a dispute concerning the identity of the obligor or the existence or amount of the arrearages, including accrued interest; (7) describe the actions that may be taken if the obligor con­tests the notice of application for a judicial writ of withholding, including the proce­dures for suspending issuance of a writ of withholding; and (8) include with the notice a suggested form for the motion to stay issuance and delivery of the judicial writ of with­holding that the obligor may file with the clerk of the appropriate court. Tex. Fam. Code § 158.302.

§ 9.71Delivery of Notice

A notice of application for judicial writ of withholding may be delivered to the obligor by hand delivery by a person designated by the title IV-D agency or local domestic rela­tions office; by first-class or certified mail, return receipt requested, addressed to the obligor’s last known address or place of employment; or by service of citation as in civil cases generally. Tex. Fam. Code § 158.306(a).

If the notice is delivered by mailing or hand delivery, the party who filed the notice shall file with the court a certificate stating the name, address, and date on which the mailing or hand delivery was made. Tex. Fam. Code § 158.306(b).

§ 9.72Motion to Stay Issuance of Writ

The obligor may stay issuance of a judicial writ of withholding by filing a verified motion to stay. The motion to stay must be filed with the clerk of the court not later than the tenth day after the date the notice of application for judicial writ of withholding was received by the obligor. The grounds for filing a motion to stay issuance are limited to a dispute concerning the identity of the obligor or the existence or the amount of the arrearages. Tex. Fam. Code § 158.307.

The proper filing of a motion to stay by an obligor prohibits the clerk of the court from delivering the judicial writ of withholding to any employer of the obligor before a hear­ing is held. Tex. Fam. Code § 158.308.

If a motion to stay is properly filed, the court shall set a hearing on the motion and the clerk of the court shall notify the obligor, obligee, or his authorized representatives and the party who filed the application for judicial writ of withholding of the date, time, and place of the hearing. The court must hold a hearing on the motion not later than the thir­tieth day after the date the motion was filed unless both the obligor and the obligee agree and waive the right to have the hearing within thirty days. On hearing, the court shall render an order for income withholding that includes a finding of the child support arrearages, including medical support, dental support, and interest, or grant the motion to stay. Tex. Fam. Code § 158.309.

§ 9.73Request for Issuance and Delivery of Writ

If a notice of application for judicial writ of withholding is delivered and a motion to stay is not filed within the time limits, the party who filed the notice shall file with the clerk of the court a request for issuance of the writ of withholding. Tex. Fam. Code § 158.312(a); see In re R.G., 362 S.W.3d 118, 123 (Tex. App.—San Antonio 2011, pet. denied) (burden is on court to set hearing). The request must state the amount of current support, including medical support and dental support, the amount of arrearages, and the amount to be withheld from the obligor’s income. The request for issuance may not be filed before the eleventh day after the date of receipt of the notice of application for judicial writ of withholding by the obligor. Tex. Fam. Code § 158.312.

§ 9.74Issuance and Delivery of Writ

On the filing of a request for issuance of a writ of withholding, the clerk of the court shall issue the writ. The clerk shall issue and mail the writ not later than the second working day after the date the request is filed. Tex. Fam. Code § 158.313(a), (c).

§ 9.75Contents of Writ

The judicial writ of income withholding issued by the clerk must direct that the employer or a subsequent employer withhold from the obligor’s disposable income for current child support, including medical support and dental support, and child support arrearages an amount that is consistent with the provisions of Family Code chapter 158 regarding orders of withholding. Tex. Fam. Code § 158.314.

If the party who filed the notice of application for judicial writ of withholding finds that the schedule for repaying arrearages would cause the obligor, the obligor’s family, or the children for whom the support is due from the obligor to suffer unreasonable hard­ship, the party may extend the payment period in the writ. Tex. Fam. Code § 158.315.

§ 9.76Issuance of Judicial Writ to Later Employer

After issuance of a judicial writ of withholding by the clerk, a party authorized to file a notice of application for judicial writ of withholding may issue the judicial writ of with­holding to a subsequent employer of the obligor by delivering a copy of the writ to the employer by certified mail. The judicial writ of withholding must include the name, address, and signature of the party and clearly indicate that the writ is being issued to a subsequent employer. The party shall file a copy of the judicial writ of withholding with the clerk not later than the third working day following delivery of the writ to the subse­quent employer and pay a $15 fee. The party shall file the postal return receipt from the delivery to the subsequent employer not later than the third working day after the party receives the receipt. Tex. Fam. Code § 158.319.

COMMENT:      Although the “Income Withholding for Support” form (form 9-3) indicates that the employer’s name and address must be provided, it is entirely permissible to complete the form using the language “Any employer of [name of obligor].” Texas law provides that a withholding order is binding on an employer regardless of whether the employer is specifically named in the order or writ. Tex. Fam. Code § 158.201(b).

§ 9.77Parties’ Agreement about Amount or Duration of Withholding

An obligor and an obligee may agree on a reduction in or termination of income with­holding for child support if one of the following contingencies, stated in the order, occurs: the child’s eighteenth birthday or high school graduation, whichever is later; the removal of the child’s disabilities of minority by marriage, court order, or other opera­tion of law; or the child’s death. The obligor and the obligee may file a notarized or acknowledged request under Family Code section 158.011 for a revised judicial writ of withholding, including the termination of withholding. The clerk shall issue and deliver to the obligor’s employer a judicial writ of withholding that reflects the agreed revision or termination. Such an agreement by the parties does not modify the terms of a support order. Tex. Fam. Code § 158.402.

§ 9.78Delivery of Order Reducing or Terminating Withholding

If a court has rendered an order that reduces the amount of child support to be withheld or that terminates withholding for child support, any person or governmental agency may deliver to the employer a certified copy of the order. There is no requirement that the court clerk deliver it. Tex. Fam. Code § 158.404. The provisions of Family Code chapter 158 regarding the liability of employers for withholding apply to an order reducing or terminating withholding. Tex. Fam. Code § 158.405.

§ 9.79Order for Withholding for Costs and Fees

In addition to an order for income to be withheld for child support, the court may render an order that income be withheld from an obligor’s disposable income toward satisfac­tion of any ordered attorney’s fees and costs resulting from an action to enforce a child support obligation. An order of withholding for costs and fees is subordinate to an order of withholding for child support and is subject to the maximum of 50 percent allowed to be withheld from the obligor’s disposable earnings. Tex. Fam. Code § 158.0051(a), (b).

COMMENT:      An order for withholding of attorney’s fees should not be combined with the order for child support. It should be on a separate form and should direct that pay­ment be sent to the attorney rather than to the state disbursement unit.

§ 9.80Qualified Domestic Relations Order for Collection of Support

A qualified domestic relations order may be used for the collection of ordered child support when a child support obligor is eligible for retirement benefits. The court that rendered an order for the payment of child support, or the court that obtains jurisdiction to enforce a child support order under chapter 159 of the Family Code, has continuing jurisdiction to render enforceable qualified domestic relations orders or similar orders (QDROs) permitting payment of pension, retirement plan, or other employee benefits to an alternate payee or other lawful payee to satisfy amounts due under the child sup­port order. Tex. Fam. Code § 157.501(a).

See chapter 25 of this manual for a complete discussion of the use of the QDRO for this purpose.

VII.  Useful Websites

§ 9.81Useful Websites

The following websites contain information relating to the topic of this chapter:

Office of Child Support Enforcement forms (§ 9.66)
www.acf.hhs.gov/programs/css/resource/income-withholding-for-support-form

Office of the Attorney General of Texas
www.texasattorneygeneral.gov

 

 

 

 

 

 

 

[Chapters 10 through 12 are reserved for expansion.]