Child Support Enforcements – Contempt Findings and Beyond
Under the Texas Family Code, an aggrieved parent can seek enforcement of a child support order requesting that the other parent be forced to pay delinquent amounts owed. In doing so, the aggrieved parent can ask that the Trial Court send the non-paying parent to jail for a specified period of time for the failure to abide by the child support order. While there are a handful of affirmative defenses against the contempt finding and potential incarceration, any parent who is not paying their child support and medical support obligations run major risks. These motions are not considered lightly by the state courts, and the pleadings must be clear as to each and every violation by date, amount, and provision of the order being violated. If an enforcement is filed against you, but the hearing does not occur until months later, the filing parent cannot seek a contempt finding for the months that passed without specifically amending or supplementing the motion already on file.
What Can and Cannot be Enforced by Contempt?
The Texas Constitution states that an individual cannot be incarcerated for nonpayment of a debt. Texas law makes certain exceptions to this rule for child support, medical support, and attorneys fees that are granted solely in an action for enforcement of child support and/or medical support. Attorney fees granted as part and parcel of a divorce or general suit affecting the parent-child relationship do not fall within this category of fees that are enforceable by contempt and jail time. But, what about a suit wherein Mother sought retroactive child support, and the jury awarded fees?
Conditional Mandamus Relief to Challenge an Enforcement
An order holding a parent in contempt can only be challenged by a habeas corpus proceeding or a mandamus proceeding. Here, Mother filed an enforcement against Father for non-payment of child support, medical support, support arrearages, and attorney’s fees in the amount of $52,000 from a prior case that involved retroactive support. The attorney representing Mother (a former family law judge) asserted that the attorney’s fees were ordered as payment in a child support proceeding–but that was not truly the case. Instead, a previous jury awarded Mother attorney fees in the overall case. The attorney representing Father in the enforcement proceeding at the trial level, however, did not raise this issue during the final hearing. As a result, the Trial Court held Father in contempt for nonpayment including the attorney’s fees and Weaver was appointed as appellate counsel for Father.
In seeking Mandamus review, Weaver argued that the attorney fees and missed support payments that were not specifically pled by Mother should be removed from the contempt order and that probation over Father for these penalties were a violation of Father’s Constitutional rights. The Seventh Court of Appeals–sitting in place for the Second Court of Appeals after transfers of the case by the Texas Supreme Court were granted–agreed and granted the conditional mandamus request. The Trial Court has been ordered to vacate the contempt order, removing those provisions and releasing Father from the future threat of incarceration on those issues. Opinion available: Memorandum Opinion
Find Attorney’s Who Understand Mandamus Petitions
A conditional grant of Mandamus relief is incredibly rare, with only 3-10% of petitions being granted each year. For example, the Texas Supreme Court survey for 2023 shows 209 of 217 petitions were denied. If you are needing emergent review of an action by a state court, you need an attorney with experience in these matters. Contact the attorneys at Yale, Weaver & Phillips before the deadlines run and your order cannot be challenged: 940-891-4800.
