In an opinion delivered on March 8, 2013 and authored by Justice Lehrmann, the Texas Supreme Court lent clarity to the Family Code’s “purging” provision (Texas Family Code 157.162(d) which allows a respondent to escape contempt of court if he produces evidence at the hearing showing he is current on his child support).  According to the Texas Supreme Court, the plain language of Texas Family Code 157.162(d) is the best guide to the statute’s meaning and confirms that the purging provision is only activated if an obligor is current on all child support obligations at the time of the enforcement hearing, not just those pled in the motion to enforce.

In the underlying proceedings arising out of Tarrant County, Father was held in contempt and sentenced to 174 days of jail (to be served on the 2nd and 4th weekends of each month) for failing to pay his child support as ordered. While Father paid all the past due payments that were alleged as violations in the motion for enforcement by the date of the hearing, he remained delinquent on his child support payments that arose between the time the motion was filed and the date of the hearing.  Father claimed he properly invoked the purging provision and, thus, could not be held in contempt.   The Fort Worth Court of Appeals agreed with Father.  So Mother and the Office of the Attorney General of Texas took this case to the Supreme Court.

According to the Texas Supreme Court, the trial judge was right — Father could not avoid a contempt finding by invoking the purging provision because he was not current on all his court-ordered child support due at the time of the contempt hearing:

“The court may not find a respondent in contempt of court for failure to pay child support if the respondent appears at the hearing with . . . evidence . . . showing that the respondent is current in the payment of child support as ordered by the court.” TEX. FAM. CODE § 157.162(d). We are called upon to interpret this section of the Texas Family Code, which provides a mechanism by which an obligor who has violated a child support order may avoid a contempt finding. We hold that this language is unambiguous and means what it says: an obligor must be current on court-ordered child support payments due at the time of the enforcement hearing, regardless of whether those payments have been pled in the motion for enforcement, in order to invoke section 157.162(d) to avoid a finding of contempt where contemptuous conduct has otherwise been properly pled and established. Holding otherwise would contravene the statute’s plain language and allow a recalcitrant obligor to escape a valid contempt finding by paying only those payments pled in a motion to enforce while continuing to disobey the prior order before the enforcement hearing. We therefore hold that the trial court did not abuse its discretion in entering a contempt order in this case. We conditionally grant relief and instruct the court of appeals to vacate its judgment, thereby reinstating the trial court’s contempt order.

Whether you are a child support obligor, obligee, or an attorney representing either party, this is an important case to keep in mind in all child support enforcement matters. 

Click here to read the opinion: http://www.supreme.courts.state.tx.us/historical/2013/mar/110255.pdf

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.