In a divorce or family law action in Texas courts, involving the support of children, the trial court accepts the agreement of the parents or orders one parent to pay child support to the other parent, with whom the child usually resides. The trial court order specifies the amount of child support, the duration of payments and the required method of payment. In most cases the county in which the cause is determined, will collect child support payments through the county child support office. A standard withholding order may be entered, directing employers to withhold and send to that county child support office, the amount of child support due, which is then dispersed to the parent entitled to receive the child support. Changes in circumstances may involve direct payments of child support, outside the standard withholding arrangement through the county. In this instant cause, Preston v. Victoria, the Texas Supreme Court interpreted the law and determined that payments made outside the direct-payment order of the trial court, were sufficient to satisfy the father’s obligations, even though he did not follow the exact order of the trial court.
The Court was asked to rule on an issue of direct child support payments, and the credit of those funds toward any child support arrearage, in an enforcement action.
The issue in Preston Ochsner v. Victoria Ochsner is whether the trial court has discretion to consider direct payments either to the other parent or to a third party in deciding whether an arrearage exists, in a child support enforcement action.
When Mr. Preston Ochsner and Ms. Victoria Ochsner were divorced in 2001, Preston was ordered to pay Victoria $240 per month in two installments. Additionally, Preston was ordered to pay $563 per month, directly to the daughter’s preschool. The order indicated that after the daughter stopped attending the preschool, Preston was required to pay Victoria $400, twice a month, through a registry, the Harris County Child Support Office. The order contained language stating that failure to comply with the place and manner requirement, “may result in the party not receiving credit for making the payment.” Preston A. Ochsner v. Victoria V. Ochsner, No. 14-0638 (Tex. 2015) [i].
The reason child support payments are directed through a registry, in this case, the Harris County Child Support Office, is to prevent disputes over direct payments. In some cases, a parent might buy a child new shoes, take them on vacation or otherwise spend money on them, and then make the argument that the direct expenditures count towards the child support obligation. Where payments are made in a disorderly manner, the court may disallow the practice of making child support payments outside the county system.
Child support enforcement proceedings, the calculation of arrearages.
When a party entitled to receive child support payments does not receive what is ordered, an enforcement action can be filed, and the court will make determination to identify the amounts paid, amounts past due (in arrearage) and what the party ordered to pay must do to bring the child support obligation current.
What happened in the Ochsner cause: After the daughter stopped attending the preschool, instead of making the twice monthly $400 payment through the Harris County Child Support Office, Preston made direct payments to various private schools, for his daughter’s tuition. Meanwhile, Victoria sued Preston in a child support enforcement action, for money Preston did not pay through the registry, as ordered by the trial court. However, it was determined by the Court that Preston paid a total amount near $80,000 for the upbringing of his daughter, more than $20,000 more than would have been paid had he made payments to the registry in Harris County.
The objective of the trial court in the enforcement proceeding (note that the original child support order and an enforcement action are separate causes, the enforcement cause being new and independent of the original underlying cause) is to determine how much child support has been paid, what is past due, and what needs to happen to get the arrearage paid.
What may the trial court consider when it comes to direct payments made outside the court order?
The Ochsner case made it to the Supreme Court of Texas because Victoria appealed the trial court’s decision that Preston did satisfy his child support requirements, even though the payments were not made through the registry as ordered. The Court of Appeals for the Fourteenth District of Texas disagreed with the trial court, holding that Preston did not satisfy his child support obligation. Reversing the appellate court, the Supreme Court of Texas held that in an enforcement action, state law allows for the calculation of direct payments in determining child support payments made and that which is outstanding.
The Supreme Court reviewed and interpreted Texas statutory law concerning child support orders and enforcement actions. The Texas Family Code directs a trial court to consider direct tuition payments made outside the registry, within its discretion. The opinion states in pertinent part: “Nothing in the statute suggests that the trial court can consider only payments made through the registry in determining the amount of child support that an obligor has paid, and thus the amount for which the obligor is in arrears.[ii]”
What is the effect of this case on other child support enforcement causes in Texas courts?
Critics of the opinion fear the Ochsner decision will open the door to more cases in which child support obligors make direct payments for the benefit of a child, in making child support payments, outside the traditional manner of a withholding order and the local county child support office registry. While making tuition payments may be easily traceable and accounted in one cause, others may cause a court to make more difficult decisions in determining whether money spent is considered payment of child support. The concern is putting the discretion in the hands of child support obligors who may go to great lengths to ensure that not a dime of child support money passes through the other party’s hands.
In light of the decision in Ochsner, more Texas appellate courts and the Supreme Court of Texas may decide disputed child support enforcement causes of action to answer legal issues in cases interpreting Ochsner. In addition, the Texas legislature could adopt changes to the law to make the issue of child support enforcement more clear, when it comes to payments made outside the traditional registry and county systems.
The Barrows Firm shares important information and resources about parenting issues and concerns that affect families in the DFW Metroplex. If you have questions about child support, The Barrows Firm can answer all your questions.
If you would like more information about The Barrows Firm, P.C., please contact the firm by calling (817) 481-1583. The Barrows Firm is located downtown Fort Worth at 500 East Belknap Street, near the Tarrant County Courthouse and the Tarrant County Family Law Center.
You can follow The Barrows Firm on social media and find important articles and resources about Texas law and how it may affect you or your family. The Barrows Firm is on Twitter, Facebook and LinkedIn. To read client endorsements and reviews of Attorney, Leslie Barrows, please visit her Avvo.com profile.
[i] Preston A. Ochsner v. Victoria V. Ochsner, No. 14-0638 (Tex. 2015) at pages 2-3.
[ii] Ochsner at page 8.