law-child support | attorney's fees as child support? |


RECENT TEXAS SUPREME COURT DECISIONS IN CHILD SUPPORT MATTERS  


In re Zandi, No. 07-0919  (Tex. Dec. 19, 2008)(Suppl. Op. on motion for rehearing)(child support contempt,
right to notice re: intent to revoke suspension of commitment)
IN RE REZA ZANDI; from Denton County; 2nd district (02-07-00348-CV, ___ SW3d ___, 10-18-07)
Supplemental Opinion on Rehearing
In Re Zandi, No. 07­0919 (Tex. May 30, 2008)(per curiam) (family law, child support contempt, habeas corpus
granted, due process violated, insufficient notice of charges)

In re OAG, No. 08-0165 (Tex. 2008) (per curiam)(mandamus) (TRO against Office of Texas Attorney General
in dispute over child support collection set aside by mandamus as void due to procedural deficiency).


PETITIONS DENIED BY TEXAS SUPREME COURT IN CASES FROM THE
COURTS OF APPEALS

09‑0092  CHRISTOPHER J. MCCLOSKEY v. ANNE M. MCCLOSKEY; from Fort Bend County; 14th district
(14‑06‑00470‑CV, ___ SW3d ___, 09‑09‑08, pet. denied Nov 2009) as reinstated
Attorney's Fees in SAPCR divorce improperly characterized as additional child support McCloskey v.
McCloskey (Tex.App.- Houston [14th Dist.] Apr. 2, 2009)(Substituted opinion by Hedges) (SAPCR divorce
attorneys fees cannot be ordered as additional child support enforceable by contempt)

IN THE INTEREST OF J.I.M., A MINOR; from El Paso County; 8th district (08-05-00302-CV, 281 SW3d 504,
08-21-08, pet. denied Sep. 2009)(SAPCR modification, child support arrears)
Mr. Martinez has not disputed, either in the trial court, or during this appeal, that he failed to fulfill his child
support obligation during the pendency of his motion to modify. As such, there is no factual dispute that Mr.
Martinez was in arrears at the time the trial court entered its modification order. In accordance with Sections
157.261 and 157.263, Ms. Carroll was entitled to a money judgment for the total amount of the arrearages,
and the trial court had no discretion but to enter such an order. Therefore, the trial court abused its discretion
by determining Ms. Carroll's motion for enforcement was moot.

09‑0164  IN THE INTEREST OF L.K.K. AND C.M.K., CHILDREN; from Montgomery County; 11th district
(11-07-00106-CV, ___ SW3d ___, 09‑11‑08)(child support modification, denial of credit for voluntary
overpayment, findings of facts)
Appellant contends that the trial court=s refusal to give him credit for the overpayments violates Tex. Fam.
Code Ann. ' 154.012 (Vernon 2002), ' 154.014 (Vernon Supp. 2007).  We disagree.  Section 154.014 applies
to excess payments made to child support agencies.  It provides that the agency is  required to apply the
overpayment based upon the expressed intent of the obligor.  If the obligor does not express an intent, the
statute requires the agency to apply the overpayment as a credit against the obligor's future child support
obligation.  Section 154.012 provides that an obligor may recover excess child support payments from the
obligee after the child support obligation has ended.

Based upon the evidence offered at trial, we conclude that Sections 154.014 and 154.012 are  inapplicable.  
Appellant voluntarily increased the amount of his child support payments because his earnings increased.  
Under these circumstances, appellant did not pay excess child support payments.[3]  As noted by the trial
court, appellant should have been paying more child support because his earnings increased.[4]  Moreover,
a parent may always voluntarily provide more support for a child than is required by court order. See Lewis v.
Lewis, 853 S.W.2d 850, 854 (Tex. App.-Houston [14th Dist.] 1993, no writ); In re McLemore, 515 S.W.2d 356,
358 (Tex. Civ. App.-Dallas 1974, no writ).  Appellant's first issue is overruled.

No Retroactive Child Support

Tex. Fam. Code Ann. ' 156.401(b) (Vernon Supp. 2007) prohibits a court from retroactively increasing the
amount of an obligor's child support obligation.  Appellant contends that the trial court's order "effectively"
violates this prohibition by denying his requested credit for the payments.  We disagree.  The trial court only
increased the amount of appellant's child support prospectively from the date of the hearing.  Additionally, the
trial court did not order appellant to pay any additional sums for past child support.  Appellant's second issue
is overruled.

07-0934  
THE OFFICE OF THE ATTORNEY GENERAL v. TROY BELL; from Dallas County; 5th district
(05-06-00885-CV, ___ S.W.3d ___, 07-23-07)(family law, child support enforcement, no evidence of
arrearage)
The Office of the Attorney General of Texas appeals the trial court's take-nothing judgment dismissing the
attorney general's motion to enforce Troy D. Bell's child support obligation. The attorney general brings two
issues   See Footnote 1  on appeal: (1) the trial court abused its discretion by excluding from evidence the
attorney general's payment records; (2) the record shows, as a matter of law, that Bell owed a child support
arrearage. For the reasons stated below, we affirm the trial court's judgment. * * *
After reviewing the record, we conclude it supports the trial judge's decision that there is no evidence Bell
currently owes any child support arrearage. The attorney general acknowledges that under Beck and other
decisions from this Court, he bore the burden of establishing what child support payments were made and
what payments were required but not made. See Beck v. Walker, 154 S.W.3d 895, 903 (Tex. App.-Dallas
2005, no pet.). The record shows that no evidence of payments was admitted at the hearing. Given the
absence of evidence at the hearing, we conclude the evidence is legally sufficient to support the trial court's
judgment. We affirm the trial court's judgment.

08-0149
IN THE INTEREST OF J.D.D., B.J.D., AND W.G.D., CHILDREN; from Collin County; 5th district
(05-06-00463-CV, 242 S.W.3d 916, 01-08-08, pet. denied)
(family law, child support, motion to modify, reduction denied)
The trial court did not abuse its discretion in concluding there had not been a material and substantial
change in Father's circumstances that justified a reduction in Father's child support obligation. Therefore, we
affirm the trial court's order.