INTERESTING CASES: October 3, 2018
Sallee S. Smyth
- In the Interest of D.S.H., 2018 Tex. App. LEXIS 7889 (Tex. App. – Beaumont September 27, 2018) (mem. op. on rehearing en banc) (Cause No. 09-17-00426-CV)
F and M were divorced in 2009. Although not stated in the Opinion, it is assumed that F was designated as the parent with the right to determine their 9 year old son’s residence as M filed a motion to modify the decree of divorce in 2013 requesting that she be named as the parent with that right. The trial court issued a temporary order which designated M as the temporary primary parent with that right and in addition ordered F to pay temporary child support. When this temporary order for child support was issued, the trial court was apparently not aware that the child was receiving benefits by virtue of F’s disability and this was not taken into account when the temporary child support payments were established. F did not challenge this temporary support order. Issues concerning conservatorship were tried before a jury in 2015. During the jury phase of the case the attorneys revealed to the trial court that the child was receiving benefits due to F’s disability. Nevertheless, when the balance of the modification issues were tried the trial court did not give F any credit for the disability benefits in ordering the prospective child support amounts. F appealed from this order and the COA reversed and remanded that portion of the trial court’s order which failed to credit the disability payments in the child support calculation. (In re D.S.H., 2017 Tex. App. LEXIS 3525) However, this decision did not specify how far back the re-calculation of child support should go. In response to the COA remand, the trial court applied a credit based on the disability payments only back to February 1, 2016, the date it rendered judgment in the modification proceeding. In a second appeal, F has now complained that the trial court should have issued the credit back to December 2013 when it issued the temporary order child support order which likewise did not give F proper credit for the disability payments the child was receiving. In denying F’s complaint in this second appeal, the COA determined that the trial court acted correctly in modifying F’s child support obligation only as to the prospective amounts due and owing from the date of rendition of its final order and thereafter going forward. The COC relies on TFC 156.401(b) as precluding a retroactive modification of child support stating that “Section 156.401(b) of the Family Code … prohibits trial courts from retroactively modifying temporary support orders to a date that predates the date the parent opposing a support award notifies the others parties to the suit that they are challenging the amount of a temporary award.” Judgment affirmed. COMMENT: Now, I have to tell you that I have read and re-read this Opinion and I have read and re-read Section 156.401(b) of the Family Code to insure that I am not missing something huge here. In my version of the Family Code, Section 156.401(b) reads as follows: “A support order may be modified with regard to the amount of support ordered only as to obligations accruing after the earlier of: (1) the date of service of citation or (2) an appearance in the suit to modify.” My version of the Family Code does not reference temporary support orders and it does not reference one party’s obligation to notify the other party that they intend to challenge the amount of a temporary award.” Instead, in my version of the Family Code, TFC 156.401(b) merely prohibits the court from retroactively modifying child support under the prior order (which refers to the prior final order which is the subject of the modification suit) before the defendant is served in a suit seeking a reduction in support or the defendant answers in a suit seeking to increase or order support. I think the COA totally misunderstands and misreads TFC 156.401(b). The prior order being modified in this case was the parties’ 2009 final decree of divorce, not the December 2013 temporary order issued in the modification suit itself. Further, under TFC 154.132 it is mandatory (“the court shall”) for the trial court to calculate child support under the child support guidelines and then subtract, dollar for dollar, the amount of benefits paid to the child as a result of the obligor’s disability. Under this statute, it is clear that the trial court miscalculated the December 2013 temporary child support amount (because it was not even aware of the disability payments). Then on remand, it only applied the disability credit back to February 2016 when it rendered its final child support award. In effect, the F did not receive proper and mandatory credits for disability payments paid between December 2013 and February 2016 (a period of approximately 25 months). Clearly, depending on the amount of the monthly disability benefits, it is possible that the F was entitled to a substantial credit or even that he had overpaid his obligations entirely. In my opinion, on remand, the trial court was required to go back and apply the mandatory credit to every child support payment (temporary or otherwise) that had been ordered since the date the F answered or appeared in the modification suit, which likely was from December 2013 forward. I think that the Beaumont COA just completely got this one wrong.