The Quirky Language of Child Support Laws
Often, after divorce, a former spouse moves the court to increase or to decrease child support. When this occurs, Texas Family Code section 156.401(b) states that when the court ultimately makes a ruling on the modification, the modification can be made to take effect as of the date citation was served in the motion to modify or the date the opposing party appeared in that suit. In other words, the increased or decreased amount of child support can be made payable as of a date in the past.
In In the Interest of R.C.T., the Texas Attorney General moved a trial court to increase the amount of child support a former husband must pay. In September 2006, the trial court ordered that as of April 2005, the former husband's child support should be increased to $1,340 from $828 per month. The trial court calculated that the amount of retroactively unpaid child support from April 2005 to September 2006 equaled $9,024. The trial court ordered the former husband to pay this $9,024 at the rate of $150 per month on top of the new child support amount of $1,340 monthly.
The Attorney General then filed a child support lien for the $9,024 in unpaid child support.* The Attorney General also requested the Treasury Department to withhold the former husband's anticipated federal income tax refund of $3,839 and pay it in partial satisfaction of the $9,024.
The former husband appealed. He argued that (1) the child support lien could not issue because the $9,024 was not "due and owing" as required under the child support lien statute; and (2) his federal income tax refund could not be intercepted because the $9,024 was not "past-due support" under federal law. Both positions were based upon the trial court's order that the $9,024 would be paid at $150 per month.
Houston's Fourteenth Court of Appeals ruled against the former husband on the first issue but for him on the second one. The court reasoned that the $9,024 was "due" because "it is an amount that is presently enforceable." The $9,024 was "owing" because, in fact, the former husband did owe the money. Thus, the child support lien could issue.
On the second issue, the Fourteenth Court of Appeals held that "past-due support" under federal law means that child-support payments are "delinquent." The court followed the lead of a Pennsylvania decision which held that "the federal intercept program does not encompass situations where a parent has continually complied with his child support obligation, but where, nonetheless, arrearages are created as a result of the retroactive effect of an order of support." Therefore, the Attorney General could not intercept the former husband's federal income tax refund and apply it to the $9,024.
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* Why, one might ask, would the Attorney General take this action when the trial court had ordered this $9,024 paid at $150 per month? This is a subject for another post, but suffice it to say that the Attorney General's Office has taken an wide-ranging view of its powers to collect child support.
