Once in a blue moon, the Texas Supreme Court issues an opinion that addresses an issue that is purely family law related. By that standard, there was a blue moon June 24, 2016. That is the day the Supreme Court issued the opinion in Ochsner v. Ochsner. This opinion potentially impacts tens, if not hundreds, of thousands of people paying child support in Texas and is contrary to the way many trial courts and courts of appeals have previously interpreted the child support statutes. That isn’t to say they got it wrong; I think they got it right!
When Preston and Victoria Ochsner divorced in December 2001, the court order specified that Mr. Ochsner would pay Mrs. Ochsner $240 each month and would also pay $563 each month directly to Enron Kid’s Center for their daughter’s preschool expenses. The order also stated that after the daughter stopped attending Enron Kid’s Center, Mr. Ochsner was to pay Mrs. Ochsner $800 a month. The order required Mr. Ochsner to pay through the registry, Harris County Child Support Office, and noted that failure to comply with this place and manner requirement “may result in the party not receiving credit for making the payment.”
When the Ochsner’s daughter stopped attending Enron Kid’s Center, Mr. Ochsner continued to make monthly child support payments of $240 per month directly to Mrs. Ochsner, as well as payments directly to various private schools rather than to Mrs. Ochsner via the registry. Mrs. Ochsner was the parent contractually obligated to pay the tuition that Mr. Ochsner paid. It is undisputed that Mr. Ochsner paid a total of almost $80,000 toward the upbringing of his daughter – more than $20,000 above the total amount that the child support order contemplated through the registry.
Almost a decade after their daughter stopped attending Enron Kid’s Center, Mrs. Ochsner brought a child support enforcement action against Mr. Ochsner arguing that he was in arrears and seeking a money judgment for the balance plus interest, attorney fees and costs. The trial court found for Mr. Ochsner, holding that he had discharged his child support obligation. The case went up to the court of appeals, which reversed and sent it back to the trial court. The trial court again held that Mr. Ochsner was not in arrears. The second time the case came back to the court of appeals a divided court again reversed the trial court holding that the trial court had impermissibly enforced a private agreement to modify a child support order. The court of appeals held that the trial court was barred from considering Mr. Ochsner’s direct tuition payments when confirming the amount of arrearages.
The majority opinion authored by Justice Willett painstakingly stepped through the applicable statutes in the Texas Family Code and held that, “The Family Code directs a trial court in an enforcement proceeding to determine the amount of unmet childsupport obligation, and in no way removes a court’s discretion to consider direct tuition payments made outside the registry.”
After parsing through the statutes phrase by phrase, clause by clause and sometimes word by word, Justice Willett said, “Fealty to the clear meaning of the statutory text, then, indicates that the trial court may consider the obligor’s regular and long-term payments of tuition that the obligee was obliged to make.”
The court notes that federal law requires that the trial court order income withheld for child support be paid through the state disbursement unit. The court notes that, “nothing in the statute requires that payments made voluntarily, as opposed to payments withheld from income, must be made through a state registry.” The opinion holds that, “The manner of payment that the original order specifies does not hamstring the enforcement court in determining the amount of arrearages. Rather the statute contemplates that the trial court has discretion to consider direct payments either to the other parent or to the third party in deciding whether an arrearage exists.”
In Justice Willett’s words, “An analysis of the pertinent parts of the Family Code, then, leads to the conclusion that in a child-support enforcement action, a trial court may consider the various payments made by the obligor, regardless of what precise manner an earlier court – presiding over a distinct proceeding – specified in the child-support order.”
The opinion notes, “There is no statutory requirement that child-support payments travel via registry, though the court that issued the support order thought it appropriate. The trial court in an enforcement action, therefore, may, in the appropriate case, consider the obligor’s satisfaction of the obligee’s tuition obligation in confirming the amount of arrearages.”
Of significant importance to this opinion is the fact that the lawyer representing Mr. Ochsner in the trial court documented carefully in the record not just that Mr. Ochsner had paid the tuition amounts, but that Mrs. Ochsner was the party liable for those payments. It was important that the amount of total support paid by Mr. Ochsner for the child exceeded the amount that would have been owed in direct compliance with the child support order. Also of importance was the fact that the trial judge was intent on doing the right thing.
When the Texas Supreme Court issues an opinion in a family law case that people schooled in the law and those not schooled in the law can plainly see is fully in agreement with the Do-Right Rule, it is a day to celebrate our court system. Dennis A. Fuller