CHILD SUPPORT ENFORCEMENT AND POSSESSION

STEPHEN J. NAYLOR
Law Office of Stephen J. Naylor, P.L.L.C.
5201 West Freeway, Suite 102
Fort Worth, Texas 76107
Ph: 817.735.1305 Fax: 817.735.9071
sjn@naylorfamlaw.com

State Bar of Texas

TEXAS BAR COLLEGE
th
17 ANNUAL SUMMER SCHOOL COURSE
July 16 - 18, 2015
Galveston Island

CHAPTER 29
 STEPHEN J. NAYLOR
Law Office Of Stephen J. Naylor, P.L.L.C.
5201 West Freeway, Suite 102
Fort Worth, TX 76107
Telephone: (817) 735-1305
Facsimile: (817) 735-9071
E-mail: sjn@naylorfamlaw.com

EDUCATION:

Texas Tech University School of Law

J.D. May 1994
Student Senator
Officer - Christian Legal Society
Officer - Criminal Trial Lawyers Association
Recipient, American Jurisprudence Award in Trial Advocacy
Recipient, American Jurisprudence Award in Products Liability

Texas Tech University

B.B.A. in Management, (summa cum laude) 1990
Beta Gamma Sigma Honor Society
President's Honor List
Dean's Honor List

AREAS OF PRACTICE:

Board Certified-Family Law, Texas Board of Legal Specialization

PROFESSIONAL ACTIVITIES:

State Bar Of Texas

State Bar Of Texas Family Law Section
Tarrant County Bar Association
Tarrant County Family Law Bar Association
Eldon B. Mahon Inn of Court - Barrister (1999-2002, 2008-2009)
The Family Lawyer’s Essential Tool Kit – coeditor - 2003 to present
Pro Bono Committee, State Bar of Texas Family Law Section 2005 to present
Co-Chairman, Pro Bono Committee, State Bar of Texas Family Law Section 2010 to present
Family Law Practice Manual Revision Committee, State Bar of Texas (2006-2009)
Family Law Council of the Family Law Section of the State Bar of Texas 2006 to present
Board of Directors, Tarrant County Family Law Bar Association (2007-2009)
Supreme Court of Texas Uniform Forms Task Force 2011 to present
Director - Texas Academy of Family Law Specialists 2011 to present
Trustee – Texas Family Law Foundation Board of Trustees 2012 to present
Adjunct Professor, Texas Christian University 2008 to present
Fellow, American Academy of Matrimonial Lawyers, 2014 to present

PROFESSIONAL AWARDS:

Recipient of the Eva Barnes Award, Tarrant County Family Law Bar Association 2012
Listed as a Texas Super Lawyer by Texas Monthly Magazine 2004 to present
Listed in Fort Worth, Texas Magazine as a Top Family Law Attorney 2004 to present
PUBLICATIONS

“Mediation: When is it Really Over?” (with Gary L. Nickelson) 2002 Advanced Family Law
Course

“Characterization and Tracing on a Budget” (with Gary L. Nickelson)

2003 Marriage Dissolution Institute

“Family Law for Fun and Profit” (with Gary L. Nickelson) 2003 Advanced Family Law Course

“Dealing with the Not So Right Client” 2004 Marriage Dissolution Institute

“The ABCs of Trying the Simple or Complex” Case (with Gary L. Nickelson)
2005 Marriage Dissolution Institute

“Evidence” 2005 Marriage Dissolution Institute

“Using Outside Resources” (with Gary L. Nickelson) 2005 Advanced Family Law Drafting

“If You Can’t Get It Before the Factfinder, You Can’t Win - Effective and Practical Application
of the Rules of Evidence” 2006 Advance Family Law Course

“Summary Judgments” 2007 Marriage Dissolution Institute

“Possession Orders, Including Special Circumstances” (with G. Thomas Vick, Jr.)

2007 Advance Family Law Course

“Evidence & Discovery” 2008 Marriage Dissolution Institute

“Show Me the Money” Advanced Collection Methods 2008 Advance Family Law Course

“Courtroom Objections: Proper Methods of Objecting and Otherwise Protecting Your Client in
the Courtroom” (with Kimberly M. Naylor) 2009 Advance Family Law Course

“Creative Possession Schedules” (with Kimberly M. Naylor)

2010 Advance Family Law Drafting Course

“Venue, Standing and Jurisdiction” 2011 Marriage Dissolution 101

“Evidentiary Silver Bullets” State Bar College 13th Annual Summer School, 2011

“Case Law Update - SAPCR” (with Jack W. Marr) 2011 Advance Family Law Course

“Drafting Motions and Orders in Family Law Cases” 2011 Advanced Family Law Drafting
Course

“Characterization and Tracing” 2012 Marriage Dissolution 101

“Child Support Enforcement” 2012 Advanced Family Law Course

“Cross Examination of Experts” 2013 Sex, Drugs & Surveillance

“Common Law, Informal, and Putative Marriages” 2013 Marriage Dissolution Institute
 “Child Support Enforcement” State Bar College 15th Annual Summer School, 2013

“Compelling Discovery” 2013 Advanced Family Law Course

“Evidence” 2014 Marriage Dissolution Institute

“Enforcement: Possession, Access, Child Support and Property Division” State Bar College
16th Annual Summer School 2014

SPEAKER AND LECTURER

Speaker at Family Law Essentials Seminar, presented by the Family Law Section
September 2003, Lubbock, TX

Speaker at 2003 Family Law Seminar, presented by the Family Law Section
October 2003, Wichita Falls, TX

Speaker at 2004 Marriage Dissolution Institute, April 2004, Fort Worth, TX

Speaker at 2004 Annual Meeting, June 2004, San Antonio, TX

Speaker at 2004 Family Law Boot Camp, presented by the Family Law Section
August 2004, San Antonio, TX

Speaker at LAU Seminar, presented by the Legal Assistants Division

September 2004, Fort Worth, TX

Speaker at Family Law Essentials for $2000 or Free, presented by the Pro Bono Committee of
the Family Law Section, September 2004, Laredo, TX

Speaker at 2005 Marriage Dissolution Institute, April 2005, Galveston, TX

Speaker at 2005 Annual Meeting, June 2005, Dallas, TX

Course Director, Family Law Basic Training, by the Family Law Section, August 2005, Dallas,
TX

Speaker at 2005 Family Law Seminar, presented by the Family Law Section
September 2005, Eagle Pass, TX

Speaker at 2006 Advanced Family Law Course, August 2006, San Antonio, TX

Course Director, Family Law Essentials for $2000 or Free, presented by the Pro Bono
Committee of the Family Law Section, April 2007, Mineral Wells, TX

Speaker at 2007 Marriage Dissolution Institute, May 2007, El Paso, TX

Speaker, Family Law Essentials for $2000 or Free, presented by the Pro Bono Committee of
the Family Law Section, October 2007, Laredo, TX

Course Director, Family Law Essentials for $2000 or Free, presented by the Pro Bono
Committee of the Family Law Section, April 2008, Wichita Falls, TX
Speaker at 2008 Advanced Family Law Course, August 2008, San Antonio, TX

Moderator of a panel at 2009 Marriage Dissolution Institute, April 2009, Fort Worth, TX
“Psychology of a Possession Order”

Moderator of a panel at the 9th Annual Family Law On The Front Lines, June 2009, San
Antonio, TX, “When You Play, You May Pay! Paternity Fraud – The Newest Form of Birth
Control”

Speaker, 2009 Advanced Family Law Course, August 2009, Dallas, TX

Course Director, Pro Bono Family Law Seminar, presented by the Family Law Section
October 2009, Eagle Pass, TX

Speaker, Parent-Child Relationships: Critical Thinking for Critical Issues, January, 2010,
Austin, TX

Course Director and Speaker, Pro Bono Family Law Seminar, presented by the Family Law
Section, September 2010, Sherman, TX

Course Director, 2010 Advanced Family Law Course, August 2010, San Antonio, TX

Speaker, 2010 Advanced Family Law Drafting Course, December 2010, Houston, TX

Speaker, 2011 Marriage Dissolution 101 Course, April 2011, Austin, TX

Speaker, State Bar College 13th Annual Summer School, July 2011, Galveston, TX

Speaker, 2011 Advanced Family Law Course, August 2011, San Antonio, TX

Speaker, 2011 Advanced Family Law Drafting Course, December 2011, Dallas, TX

Speaker, 2012 Marriage Dissolution 101, April 2012, Dallas, TX

Speaker, 2012 Advanced Family Law Course, August 2012, Houston, TX

Speaker, 2013 Sex, Drugs & Surveillance, January 2013, Houston, TX

Speaker, 2013 Marriage Dissolution Institute, April 2013, Galveston, TX

Course Director, Family Law Essentials Pro-Bono Seminar, presented by the Pro Bono
Committee of the Family Law Section, May 2013, Wichita Falls, TX

Speaker, State Bar College 15th Annual Summer School, July 2013, Galveston, TX

Speaker, 2013 Advanced Family Law Course, August 2013, San Antonio, TX

Speaker, 2014 Marriage Dissolution Institute, April 2014, Austin, TX

Speaker, State Bar College 16th Annual Summer School, July 2014, Galveston, TX

Speaker, 2014 Advanced Family Law Course, August 2014, San Antonio, TX
Child Support Enforcement and Possession Chapter 29

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................................................... 1

II. CHILD SUPPORT POSSESSION AND ACCESS ................................................................................................ 1

III. CONTEMPT ........................................................................................................................................................... 1

A. Direct Contempt .............................................................................................................................................. 1
B. Constructive Contempt .................................................................................................................................... 1
C. Civil Contempt ................................................................................................................................................ 1
D. Criminal Contempt .......................................................................................................................................... 2
E. Contempt is NOT Required For Other Remedies ........................................................................................... 2

IV. TIME LIMITS ......................................................................................................................................................... 2

A. Child Support .................................................................................................................................................. 2
B. Possession and Access..................................................................................................................................... 3

V. IS THE ORDER ENFORCEABLE?....................................................................................................................... 3

A. Read the Original Order .................................................................................................................................. 3
B. Plead with Specificity...................................................................................................................................... 3
C. Venue and Jurisdiction .................................................................................................................................... 5
D. Joinder of Claims and Remedies ..................................................................................................................... 6
E. Notice of and Setting the Hearing ................................................................................................................... 6
F. Have Your Orders Ready ................................................................................................................................ 7
G. Attorney General – Necessary Party ............................................................................................................... 8
H. Clarification of Prior Order ............................................................................................................................. 8
I. Attorney’s Fees................................................................................................................................................ 8

VI. REMEDIES ............................................................................................................................................................. 9

A. Criminal Contempt .......................................................................................................................................... 9
B. Civil Contempt ................................................................................................................................................ 9
C. Appointment of an Attorney ............................................................................................................................ 9
D. Community Supervision .................................................................................................................................. 9
E. Motion to Revoke Community Supervision ................................................................................................. 10
F. “To Contempt or Not To Contempt” (Alternatives to Contempt) ................................................................. 10
G. Judgment for Arrearages ............................................................................................................................... 11
H. Child Support Liens....................................................................................................................................... 11
1. Time Periods .......................................................................................................................................... 12
2. Where to File Liens ............................................................................................................................... 12
3. Effect of Lien Notice ............................................................................................................................. 13
4. Property to Which Lien Attaches .......................................................................................................... 13
5. Foreclosure ............................................................................................................................................ 14
6. Contest of Child Support Lien ............................................................................................................... 14
I. Child Support Levy ....................................................................................................................................... 14
1. How to File ............................................................................................................................................ 14
2. Time Periods .......................................................................................................................................... 14
3. Contest of Levy ..................................................................................................................................... 14
4. Payment of the Levy .............................................................................................................................. 14
J. QDRO............................................................................................................................................................ 14
K. Delivery of Property ...................................................................................................................................... 14
1. Requirements ......................................................................................................................................... 15
2. How to File ............................................................................................................................................ 15
3. How to Use a Turnover Order ............................................................................................................... 15
4. Attorney’s Fees ...................................................................................................................................... 15
L. Posting of a Bond .......................................................................................................................................... 15
M. License Suspension ....................................................................................................................................... 16
1. Time to File ........................................................................................................................................... 16
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Child Support Enforcement and Possession Chapter 29

2. What Should be Filed ............................................................................................................................ 16

3. Hearing and Order ................................................................................................................................. 16
4. Stay of Suspension................................................................................................................................. 17
5. Revocation of Stay................................................................................................................................. 17
N. Writ of Execution .......................................................................................................................................... 17
1. Personal Property................................................................................................................................... 17
2. Acquiring a Writ of Execution .............................................................................................................. 17
O. Make-Up Visitation ....................................................................................................................................... 18

VI. CONTRACTUAL ENFORCEMENT................................................................................................................... 18

VII. CONCLUSION ..................................................................................................................................................... 18

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Child Support Enforcement and Possession Chapter 29

CHILD SUPPORT ENFORCEMENT well as the two types of contemptuous punishments

that a court can impose.
AND POSSESSION
A. Direct Contempt
I. INTRODUCTION Direct contempt is conduct that occurs in the
Traditionally, each type of enforcement warrants
immediate presence of the Court. Ex parte Gordon,
its own 30 minute presentation. Unfortunately, we do
584 S.W.2d 686, 688, (Tex. 1979) This would
not have that luxury today so I have attempted to break
ordinarily entail refusing to follow an order issued
these into individual sections within the paper. I hope
from the bench, being disruptive, or unruly in the court
you will find them helpful in your attempts to enforce
room, or other conduct in direct view of the Judge that
divorce decrees and temporary orders.
affronts him/her. The distinction between direct
contempt and constructive contempt has important
II. CHILD SUPPORT POSSESSION AND ramifications aside from the location where the act of
ACCESS contempt took place. The Supreme Court has stated
All of us routinely receive phone calls from
former clients and prospective clients wanting
“This distinction has more significance than
assistance in collecting child support or to enforce their
merely identifying the physical location of
court ordered visitation. While the basic concepts of
the contemptuous act, since more procedural
child support collection and enforcement have
safeguards have been afforded to
remained constant, the law is occasionally revised constructive contemnors than to direct
and/or interpreted. Fortunately, we have several good
contemnors.”
resources that help us choose the correct remedy and
help us properly request that proper remedy.
Ex parte Werblud, 536 S.W.2d 542, 546 (Tex.1976)
The purpose of this paper is to give a general
overview of the relevant and most commonly used
B. Constructive Contempt
methods for collecting and enforcing child support and
Constructive contempt is contemptuous conduct
enforcing possession and access. However, I have also
outside the presence of the Court, such as the failure or
included some of the more obscure and seldom used
refusal to comply with a valid court order. Ex parte
collection methods that may be helpful in your
Gordon, 584 S.W.2d 686, 688 (Tex. 1979). This type
practice. When meeting with your client, you should of contempt is what Family Law practitioners
always explain to them all of their options as well as
traditionally encounter. Constructive contempt has
the possible consequences of each and every option.
been used to enforce child support obligations, medical
Often times, throwing the obligor in jail is actually not
expenses, possession and access, attorney’s fees, and
the ideal solution to your clients’ problem.
injunctions in a decree.
III. CONTEMPT “Texas Courts have consistently held that
The Texas Family Code provides a number of
alleged constructive contemnors are entitled
ways to enforce an Order for child support and
to procedural due process protections before
possession and access. However, Texas Family Code
they may be held in contempt.”
§157.001 “Motion for Enforcement” is where every
attorney should begin their enforcement case. That
Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983).
section provides in relevant part:
C. Civil Contempt
(a) A motion for enforcement as provided
Civil contempt is a remedy the Court can impose
in this chapter may be filed to enforce a
to obtain compliance with its prior Order. For example,
final order for conservatorship, child
in In re Zandi, 270 S.W.3d 76 (Tex. 2008), the trial
support, possession of or access to a
court ordered the Respondent jailed until he remitted
child, or other provisions of a final
$90,447.14 in child support arrearages, plus interest.
order.
This type of coercive order is frequently used in child
support arrearage cases. A civil contempt order is
(c) The court may enforce a final order for
often said to be one where the contemnor holds the
child support as provided in this chapter keys to the jail. If the Court does impose incarceration
or Chapter 158.
for civil contempt, the Court must do so with
specificity. Texas Family Code §157.166(c) provides,
Before we move on, it is important for us to understand
in relevant part:
the two types of contemptuous conduct that exist, as

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Child Support Enforcement and Possession Chapter 29

If the enforcement order imposes to obtain other appropriate enforcement

incarceration for civil contempt, the order remedies.
must state the specific conditions on which
the respondent may be released from (b) A finding that the respondent is not in
confinement. contempt does not preclude the court from
awarding the petitioner court costs and
D. Criminal Contempt reasonable attorney’s fees or ordering any
In contrast to civil contempt, which is coercive in other enforcement remedy, including
nature, criminal contempt is punitive in nature. Simply rendering a money judgment, posting a bond
put, “…criminal contempt is punishment for violating or other security, or withholding income.
a prior order.” In re Scariati, 988 S.W.2d 270, 272.
(Tex.App.-Amarillo 1998, orig. proceeding). Criminal Accordingly, while incarceration may be your ultimate
contempt is exemplified by a period of incarceration goal, your case does not depend solely on your
for a set amount of time which is unaffected by the obtaining a finding of contempt.
party’s performance of some future act. Id. If a Court
imposes criminal contempt, it must also make specific IV. TIME LIMITS
findings. Texas Family Code §157.166(b) provides in A. Child Support
relevant part: The legislature has provided two different statutes
of limitations depending on the relief the obligee
If the order imposes incarceration or a fine requests. One is for contempt and one is for a
for criminal contempt, an enforcement order cumulative money judgment. The pertinent sections
must contain findings identifying, setting out, read as follows:
or incorporating by reference the provisions
of the order for which enforcement was (a) the court retains jurisdiction to render a
requested and the date of each occasion when contempt order for failure to comply with the
the respondent’s failure to comply with the child support order if the motion for
order was found to constitute criminal enforcement is filed not later than the second
contempt. anniversary of the date:

Texas courts have held that §157.166(b) is satisfied by: (1) the child becomes an adult; or

“1) copying the provisions for which (2) on which the child support obligation
enforcement was sought into the order; terminates under the order or by
2) attaching a copy of the order for which operation of law.
enforcement was sought as an exhibit
and incorporating it by reference; or (b) The court retains jurisdiction to confirm the
3) giving the volume and page numbers in total amount of child support arrearages and
the minutes of the court where one can render a cumulative money judgment for
find the order for which enforcement past-due child support, as provided by
was sought.” Section 157.263, if a motion for enforcement
requesting a cumulative money judgment is
Ex parte Tanner, 904 S.W.2d 202, 205 (Tex. App. – filed not later than the 10th anniversary after
Houston [14th Dist.] 1995, orig. proceeding.) the date:

E. Contempt is NOT Required For Other (1) the child becomes an adult; or
Remedies
While other remedies besides contempt are (2) on which the child support obligation
discussed in later sections of this paper, it is important terminates under the child support order
to understand that a finding of contempt is not or by operation of law.
necessary for the court to impose other enforcement
remedies. Section 157.162 of the Texas Family Code Tex. Fam. Code §157.005.
addresses this issue: Before the 2005 revisions to this section, there
was no time limit on confirming child support
(a) The Movant is not required to prove that the arrearages. This could easily lead to an abuse of the
underlying order is enforceable by contempt process. The time limit on confirmation of arrearages
was originally ten years. The legislature then

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Child Support Enforcement and Possession Chapter 29

abolished the time limit and again reversed that (1) the child becomes an adult; or
decision in 2005. The public policy behind the 2005
amendment that reinstated the ten-year time limit was (2) on which the right of possession
to provide enough time to locate elusive, non-paying and access terminates under the
obligors while, at the same time, giving finality to a order or by operation of law.
child support order that had not previously been sought
to be enforced. Tex. Fam. Code §157.004.

Please note: Only the motion to enforce the child V. IS THE ORDER ENFORCEABLE?
support order must be filed within the ten-year period. The order you hope to enforce is the starting point
There is no requirement that the enforcement order be of ANY motion to enforce child support or possession
rendered within that time frame. and access. While Texas Family Code §157.001 refers
to enforcing a final order, it also applies to temporary
There is no time limit for requesting a child support orders. Texas Family Code §105.001(f) states that
lien, levy, or writ of income withholding to enforce violations of temporary orders are enforceable under
child support arrearages. The Texas Supreme Court Chapter 157. Accordingly, take your time in drafting
made it clear that an administrative writ of withholding those temporary orders as well as your final order! A
is an acceptable way to secure payment for a prior sloppy drafting job may cost your client the relief they
court-ordered child support liability. thought they had.

The 1974 divorce judgment established A. Read the Original Order

Kenneth’s obligation to pay, and Shirley’s To draft a successful motion for enforcement, you
right to receive, $160 per month in child must carefully read the original order you are seeking
support. The only issue that remained to enforce. The original order must be specific in the
unresolved after 1974 was securing obligations required of the person subject to the order.
Kenneth’s compliance with the court’s order. The person subject to the order must have notice of
what he, or she, is supposed to do in the original order.
… Slavin v. Slavin, 412 S.W.2d 43 (Tex. 1967). Slavin is
probably one of the most prolifically-cited and well-
In this case, the administrative writ is a known cases regarding contempt motions. The Slavin
remedy for Kenneth’s repeated and case requires the what, when and where to be stated in
continuing violation of the 1974 divorce the original order. The original order must specifically
decree that ordered him to pay specific state what the person is to do, when he, or she, was
amounts for his children’s support. supposed to do it, and where he, or she, was supposed
to do it. Without telling the alleged contemptor what
… to pay, where to pay it, and when to pay it, he, or she,
will have an argument to present to the court that they
An administrative writ of withholding for did not know, for instance, where the child support was
delinquent child support does not seek to to be paid, to whom the child support was to be paid,
impose a legal liability on the obligor to how much child support was to be paid, what day of
support his children. Instead, it is one of each month the child support was to be paid, or when
several methods that the Family Code the support was supposed to end.
provides as a remedy to secure performance The same specificity requirements apply to an
of a previously adjudicated liability. order for possession and access. The alleged
contemptor must know exactly when the child is to be
In the Interest of A.D., 73 S.W.3d 244 (Tex. 2002). turned over, to whom the child is to be turned over and
where the child is to be turned over.
B. Possession and Access Therefore, before you begin drafting your motion
For possession and access the statute of for contempt you must determine if the order is
limitations is a little more straightforward: enforceable by contempt.

The court retains jurisdiction to render a B. Plead with Specificity

contempt order for failure to comply with the A motion for enforcement must identify, with the
order of possession and access if the motion requisite degree of specificity, the offenses of the
for enforcement is filed not later than the alleged contemptor. If you are not specific, the obligor
sixth month after the date: will have a valid defense to the motion. Therefore, if

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Child Support Enforcement and Possession Chapter 29

the motion is not specific enough, the obligee may lose histories have a running total of the amount owed,
their remedy of contempt and only receive any other interest calculations, and all of the relevant dates.
relief requested. Also, if a motion for enforcement is An example of one count of failing to pay child
not correct, it will not support a subsequent support in a motion for enforcement may read as
commitment order. The requirements of the contents follows:
of the motion must be complied with or it is void. Ex
parte Barlow, 899 S.W.2d 791 (Tex. Civ. App.— “On February 14, 2009, in Cause No. 1234,
Houston [14th Dist.] 1995, no writ.). Furthermore, styled “In the Matter of the Marriage of John
since a contempt action is quasi-criminal in nature, Doe and Jane Doe and In the Interest of
double jeopardy will attach as soon as the first witness Johnny Doe, A Minor Child” in the 325th
is called. After that, if the Respondent brings the Judicial District Court of Tarrant County,
defect in the motion to the court’s attention, it will be Texas, this honorable Court signed an order
too late to correct the defect. that states, in relevant part, as follows:
Section 157.002 of the Texas Family Code sets
out four basic requirements for a motion for “IT IS ORDERED that JOHN DOE
enforcement: is obligated to pay and shall pay to
JANE DOE child support of
1) Identify the violation: $1200.00 per month, with the first
Specifically set out the provision(s) allegedly payment being due and payable on
violated. This means the what, when and March 1, 2009, and a like payment
where of the order to be enforced. You being due and payable on the first
should identify the title and date of the order day of each month thereafter until
and use the exact language in the order. the first month following the date
2) Specify the violation: of the earliest occurrence of one of
Tell the court exactly what the obligor did or the events specified below:
did not do that resulted in the violation. (The
what, when and/or where he, or she, did not 1) the child reaches the age of
do). eighteen years or graduates
3) Request relief: from high school, whichever
Tell the court specifically what you want the occurs later;
court to do. 2) the child marries;
4) Sign the motion: 3) the child dies; or
4) the child’s disabilities are
Most motions for enforcement list several violations. otherwise removed for general
To complain about the non-payment of child support, it purposes.”
is not adequate to state that the child support was
owed, where it was owed and to whom it was owed Next, you must set forth how the respondent violated
and that it was not paid. Instead, the motion must the order. An example is as follows:
state, with specificity, each date the child support was
due, how much child support was due, that it was not “Respondent has violated the order described
paid or not paid timely, how much was paid, if any, above as follows:
and when it was paid. Furthermore, a child support
record from the child support agency should be “JOHN DOE, Respondent, is in
attached in certified form to the motion so that the contempt of court for failing to pay
record is admissible as evidence of the payments made. to Movant the full amount of child
Tex. Fam. Code §157.162. support due on each of the payment
However, keep in mind that filing a general dates shown below:
motion and attaching a payment record from the
registry is not sufficient for contempt, and arguably, Payment Amount Amount Date Accumu-
not enough for a money judgment on arrears. The Due Due Paid Paid lated
respondent could argue that the pleadings failed to put Date Arrearages
the obligor on notice of what relief the obligee is 4/1/2015 $1,200 $600 4/15/12 $600
requesting. Simply stating “the respondent has failed 5/1/2015 $1,200 $00 N/A $1,800
to pay as ordered” and attaching the payment history to 6/1/2015 $1,200 $800 6/23/12 $2,200
the motion as “proof” of such claim, will not be 7/1/2015 $1,200 $300 7/4/12 $3,100
specific enough for contempt. Very few payment TOTAL $4,800 $1,700 $3,100
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Child Support Enforcement and Possession Chapter 29

In In re Luebe, 404 S.W. 3d 589 (Tex. App.—Houston If a period of possession by MINNIE

[1st Dist.] 2010)., the court stated that the motion for MOUSE begins at the time the child’s school
contempt gave sufficient notice to the obligor because is regularly dismissed, MICKEY MOUSE is
the previous enforcement orders and a financial ORDERED to surrender the child to
activity report provided by the Attorney General’s MINNIE MOUSE at the beginning of each
Child Support Enforcement Division were attached to such period of possession at the school in
the motion. Collectively, these two documents met the which the child is enrolled.
requirements set forth in Texas Family Code §157.002.
In a motion for enforcement of possession and access If the child is not in school, MINNIE
the requirements are similar. You should again MOUSE shall pick up the child at the
specifically set out the provisions allegedly violated residence of MICKEY MOUSE at 6:00 p.m.,
and you should identify the title and date of the order and MICKEY MOUSE is ORDERED to
and again use the exact language of the order you are surrender the child to MINNIE MOUSE at
seeking to enforce. Then you must tell the court the residence of MICKEY MOUSE at 6:00
exactly what the alleged violator did or did not do that p.m. under these circumstances.
violates the order.

WARNING: Furthermore, when you identify the dates and times

Many attorneys make the mistake of quoting only that that the Respondent violated the order, go ahead and
portion of the possession schedule that states when tell the court that it was the first, third, or fifth weekend
Movant had the right to possess the child. In other
of the month.
words, they only quote the provision for first, third,
and fifth Friday of each month. Violation 1. On Friday, June 20, 2015, the
Except as otherwise expressly provided in this third Friday of the month, MICKEY MOUSE
Standard Possession Order, when MINNIE MOUSE failed to surrender the minor child to
resides 100 miles or less from the primary residence of MINNIE MOUSE at his residence at 6:00
the child, MINNIE MOUSE shall have the right to p.m.
possession of the child as follows:
C. Venue and Jurisdiction
• Weekends— Venue in a motion for enforcement is controlled
On weekends that occur during the regular school by Texas Family Code §157.001(d) which provides in
term, beginning at the time the child’s school is relevant part as follows:
regularly dismissed on the first, third, and fifth
Friday of each month and ending at the time the A motion for enforcement shall be filed in
child’s school resumes after the weekend. the court of continuing, exclusive
On weekends that do not occur during the regular jurisdiction.
school term, beginning at 6:00 P.M. on the first,
third, and fifth Friday of each month and ending at This statute works in harmony with §155.002, which is
6:00 P.M. on the following Sunday. the general statute for retaining continuing, exclusive
jurisdiction. It provides as follows:
However, you will need more! This language only
tells the court that the Movant had the right to Except as otherwise provided by this
possession; it does not tell the court that the subchapter, a court with continuing,
Respondent was obligated to surrender the child. You exclusive jurisdiction retains jurisdiction of
must also include the provisions for surrendering the the parties and matters provided by this title.
child.
Accordingly, a Texas court that rendered a decree of
Surrender of Child by MICKEY MOUSE— divorce or other final SAPCR order will be the
appropriate court in which to file your motion for
MICKEY MOUSE is ORDERED to enforcement. However, jurisdiction can be lost if the
surrender the child to MINNIE MOUSE at child obtains a new home state. See Texas Family
the beginning of each period of MINNIE Code §155.003 – Exercise of Continuing, Exclusive
MOUSE’S possession at the residence of Jurisdiction: and §155.004 – Loss of Continuing,
MICKEY MOUSE. Exclusive Jurisdiction.

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Child Support Enforcement and Possession Chapter 29

D. Joinder of Claims and Remedies need to personally order the respondent to

Whether seeking contempt or not, a motion for appear.
enforcement does not need to be a “stand alone” law
suit. It is permissible to file a motion for modification In terms of setting a motion for enforcement,
of a prior suit affecting the parent-child relationship subsection (c) instructs the court to give preference to a
order and join that with your motion for enforcement. motion enforcing child support.
This is expressly permitted by Texas Family Code The requirements for the notice of hearing for a
§157.003 which provides as follows: motion for enforcement is governed by Texas Family
Code §157.062. In relevant part, this section provides
(a) A party requesting enforcement may join in as follows:
the same proceeding any claim and remedy
provided for in this chapter, other provisions (a) The notice of hearing must include the date,
of this title, or other rules of law. time, and place of the hearing.

(b) A motion for enforcement does not constitute (b) The notice of hearing need not repeat the
an election of remedies that limits or allegations contained in the motion for
precludes: enforcement.

(1) the use of any other civil or criminal (c) Notice of hearing on a motion for
proceeding to enforce a final order; or enforcement of an existing order providing
for child support or possession of or access to
(2) a suit for damages under Chapter 42. a child shall be given to the respondent by
personal service of a copy of the motion and
E. Notice of and Setting the Hearing notice not later than the 10th day before the
The Texas Family Code has set out specific date of the hearing.
statutes for both the setting of a hearing on motion for
enforcement as well as how the notice is to be (d) If a motion for enforcement is joined with
provided. The provisions for setting a hearing are another claim:
governed by §157.061 of the Texas Family Code. It
provides, in relevant part: (1) the hearing may not be held before 10
a.m. on the first Monday after the 20th
(a) On filing a motion for enforcement day after the date of service; and
requesting contempt, the court shall set the
date, time, and place of the hearing and order (2) the provisions of the Texas Rules of
the respondent to personally appear and Civil Procedure applicable to the filing
respond to the motion. of an original lawsuit apply.

(b) If the motion for enforcement does not The length of time a respondent is entitled to receive
request contempt, the court shall set the depends squarely upon what relief is actually sought.
motion for hearing on the request of a party. If the motion is seeking to enforce a possession and
access order or child support, the respondent is entitled
(c) The court shall give preference to a motion to at least 10 days notice before any hearing is held. If
for enforcement of child support in setting a a motion for enforcement is joined with other claims,
hearing date and may not delay the hearing such as a motion to modify, a hearing may not be held
because of a suit for modification of the order until the first Monday after the 20th day of service. The
requested to be enforced has been or may be statute also makes clear that if a motion for
filed. enforcement is joined with another claim under
subsection (2) of §157.062, the Texas Rules of Civil
In reviewing the statue, two aspects become readily Procedure also apply. This appears to create a
apparent: potential conflict between when the relief sought in the
motion for enforcement can be heard and when the
1) If contempt is requested, the court shall order relief sought with any other claim can be heard.
the respondent to personally appear. Because the Texas Rules of Civil Procedure clearly
2) If contempt is not requested and simply apply to any lawsuit, the responding party would be
enforcement is sought, the court does not entitled to not less than 45 days notice of the trial.

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Child Support Enforcement and Possession Chapter 29

Texas Rule of Civil Procedure 245 – Assignment of directs a ministerial officer to take custody of
Cases for Trial provides in part as follows: a person. The order containing this directive
need not take a particular form and may be a
The Court may set contested cases on written separate order issued by the court, an
request of any party, or on the court’s own attachment or order issued by the clerk at the
motion, with reasonable notice of not less court’s direction, or included in the contempt
than forty-five days to the parties of a first judgment. Id. At 858.
setting for trial, or by agreement of the
parties; provided, however, that when a case Thus, since both orders must be prepared, it would be
previously has been set for trial, the Court highly beneficial to have them prepared prior to the
may reset said contested case to a later date hearing in order for the judge to sign at the conclusion
on any reasonable notice to the parties or by of your hearing. The failure to have this done ahead of
agreement of the parties. time can be fatal to the validity of your orders. In In re
White, 2006 WL 1000228 (Tex. App. – Dallas), the
This rule has been held to constitute a constitutional failure to timely present an order resulted in the court
right. In Custom-Crete, Inc. v. K-Bar Servs., 82 granting a writ of habeas corpus. In White, an all day
S.W.3d 655, 659 (Tex. App. – San Antonio 2002, no contempt hearing for violations of the decree of
pet) the court held: divorce was held on a Friday, following which Ms.
White was remanded to the custody of the Dallas
“A trial court’s failure to comply with Rule County Sheriff. A written commitment order was not
245 in a contested case deprives a party of its presented to the court until the following Monday.
constitutional right to be present at the This three day delay was fatal to the validity of the
hearing, to voice its objections in an contempt order. The Dallas Court held:
appropriate manner, and results in a violation
of fundamental due process. Failure to give Accordingly, we hold both the Friday, March
the required notice constitutes lack of due 10, 2006 oral order and the Monday, March
process and is grounds for reversal.” 13, 2006 written order to be void for lack of
due process.
Accordingly, reading Texas Family Code §157.062 in
conjunction with Texas Rule of Civil Procedure 245 Texas Family Code §157.166 addresses what is
would appear to prevent any claims not related to the required to be contained in any enforcement order.
enforcement motion to be heard in a manner other than This section provides as follows:
that which a normal case would proceed.
(a) An enforcement order must include:
F. Have Your Orders Ready
It is important to understand the difference (1) in ordinary and concise language the
between a contempt order and a commitment order. provisions of the order for which
Following a finding of contempt and incarceration, enforcement was requested;
both orders are required and should be ready to submit
to the Court. The Supreme Court in Ex parte (2) the acts or omissions that are the subject
Hernandez, 827 S.W.2d 858, (Tex. 1992), explained of the order;
the difference and held as follows:
(3) the manner of the respondent’s
We conclude that the judgment of contempt noncompliance; and
against Hernandez cannot serve as an order
of commitment because it contains no (4) the relief granted by the court.
directive to the sheriff or appropriate officer,
and that without an order of commitment (b) If the order imposes incarceration or a fine
Hernandez is not validly confined. We for criminal contempt, an enforcement order
therefore order Hernandez discharged. It is must contain findings identifying, setting out,
well established that both a written judgment or incorporating by reference the provisions
of contempt and a written order of of the order for which enforcement was
commitment are required by due process to requested and the date of each occasion when
imprison a person for civil constructive the respondent’s failure to comply with the
contempt. A commitment order is the order was found to constitute criminal
warrant, process or order by which a court contempt.

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Child Support Enforcement and Possession Chapter 29

(c) If the enforcement order imposes S.W.2d 924 (Tex. 1983). Every motion for
incarceration for civil contempt, the order enforcement, whether or not it requests contempt,
must state the specific conditions on which should request clarification of any part of that order the
the respondent may be released from Court finds not specific enough to be enforced by
confinement. contempt.
If a portion of the prior order is clarified, the court
In terms of some of the additional requirements of shall provide a reasonable time for compliance of the
subsection (b) and (c) of §157.166, please refer to the clarified order before enforcing it by contempt or any
civil contempt and criminal contempt section other manner. Tex. Fam. Code §9.008.
addressed previously in this paper. The Court in In the
Interest of M.K.R., a minor child, 216 S.W.3d 58 (Tex. I. Attorney’s Fees
App. – Fort Worth, 2007) addressed the reasoning for
the specificity required in an enforcement order and If the court finds that the respondent has
wrote: failed to make child support payments, the
court shall order the respondent to pay the
The purpose of the specificity requirements movant’s reasonable attorney’s fees and all
is to notify the offender of how he has court costs in addition to the arrearages.
violated the provision of the relevant order (Emphasis added)
and how he can purge himself of contempt,
to notify the sheriff so that he can carry out Tex. Fam. Code §157.167(a).
enforcement, and to provide sufficient Furthermore, if the attorney’s fees were
information for an adequate review. specifically awarded in conjunction with a child
support enforcement action, then the award of
Id. At 65. attorney’s fees and court costs may be enforced by
Additionally, it is important to note that if the contempt. Tex. Fam. Code §157.167(a).
conditions imposed by an order for civil (coercive)
contempt are incapable of being performed, the order is If the court finds that the respondent has
not going to be upheld. The Supreme Court in Ex failed to make child support payments, the
parte Dustman, 538 S.W.2d 409, (Tex. 1976) concisely court shall order the respondent to pay the
wrote: movant’s reasonable attorney’s fees and all
court costs in addition to the arrearages. Fees
“An order of contempt imposing a coercive and costs ordered under this subsection may
restraint is void if the condition for purging be enforced by any means available for the
the contempt is impossible of performance.” enforcement of child support, including
contempt. (Emphasis added)
Id. at 409.
Tex. Fam. Code §157.167(a).
G. Attorney General – Necessary Party Lastly, if the court finds that the enforcement of
Before filing the motion for enforcement, make the order (for possession and access) was necessary to
sure you take the time to review the court’s file to ensure the child’s physical or emotional health or
determine if the Attorney General is involved in the welfare, the fees and costs ordered under this
case. Even if you do not find an intervention by the subsection may be enforced by any means available for
Office of the Attorney General, you must still notify the enforcement of child support, including contempt,
them of the proceeding and serve them with a copy of but not including income withholding. Tex. Fam. Code
the motion. This is especially important now that the §157.167(b).
law requires the Attorney General to review all child
support cases and orders in the State of Texas. If the court finds that the respondent has
failed to comply with the terms of an order
H. Clarification of Prior Order providing for the possession of or access to a
As discussed earlier, the order you are trying to child, the court shall order the respondent to
enforce must be specific. If, however, your order is not pay the movant’s reasonable attorney’s fees
specific, your motion for enforcement may provide an and all court costs in addition to any other
opportunity to rectify that problem. The court has the remedy. (Emphasis added)
authority to clarify any of its orders so long as the court
does not change the substance of the order. Tex. Fam. Tex. Fam. Code §157.167(b).
Code §§157.421, 157.423, McGehee v. Epley, 661

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Child Support Enforcement and Possession Chapter 29

VI. REMEDIES trial. If you want to avoid allowing the respondent the
Most motions for enforcement include a request to option of a jury trial, always request the jail time to run
hold the respondent in contempt for the alleged concurrently.
violations of the court’s order. Contempt actions under
the Texas Family Code can be either in the form of B. Civil Contempt
civil contempt, criminal contempt, or both. Each has Instead of, or in addition to, criminal contempt,
its own purposes and goals, and often both are the court can also hold the respondent in civil
requested in motions for enforcement. contempt. The purpose of a civil contempt is remedial
in nature. The main difference between civil and
A. Criminal Contempt criminal contempt is that, in civil contempt, a
As discussed briefly above, the main goal of a respondent can purge him/herself of the contempt.
criminal contempt is to punish the contemptor for This usually involves the payment of all, or a specified
violating the terms of the prior order pertaining to child amount, of child support. If the court orders civil
support. contempt, the acts required to purge the contempt
If the court grants the relief of criminal contempt, should be specifically stated in the order. For example,
the contempt order should specify the determinate the court could order the contemptor “confined until
sentence (e.g., “Respondent is sentenced to 180 days in such time as the arrearage confirmed herein is paid in
the Tarrant County Jail for violating this Court’s prior full.” Once paid, the contemptor is released from jail
order dated February 14, 2009, by failing to pay child and no longer subject to civil contempt.
support on April 1, 2015.”). The order should also If the court orders a civil contempt such that the
identify the dates of noncompliance, how many respondent is jailed until he/she complies with certain
violations occurred, and whether the sentences run conditions, those conditions must be specific enough to
concurrently or consecutively. In Re Burcie, No. 2-08- notify the contemptor of the exact actions he/she must
221-CV, 2008 Tex. App. LEXIS 5859 (Tex. App.— take so that the contemptor knows how to comply. Ex
Fort Worth 2008, orig. proceeding.) (mem. op.). In Parte Garcia, 831 S.W.2d 1 (Tex. App.—El Paso
Burcie, the motion had an exhibit attached that listed 1992, no writ).
all the dates child support was due, payments made,
and the payments missed. When the court found the C. Appointment of an Attorney
obligor to be in contempt and subsequently ordered to If the movant is requesting the respondent to be
jail, a copy of the exhibit was attached to the order as a incarcerated for either civil contempt, criminal
detail of the violations. The court of appeals granted contempt, or both, the respondent is entitled to have an
the writ of habeas corpus because an order for attorney appointed to represent him or her. Texas
contempt must specify how the obligor disobeyed the Family Code §157.163 outlines the process for
court’s order. In this case, the exhibit showed both the informing a respondent of the right to an attorney.
months the obligor did not pay along with the months This section also sets forth the requirements for
the obligor paid in full. Id. In the contempt order, you obtaining court-appointed counsel. Texas Family Code
should just pick a few dates that the obligor did not pay §157.164 governs the payment of the court-appointed
to use as the basis of the punishment. counsel.
In most cases, the court orders less than six A habeas corpus will more than likely be granted
months incarceration for contempt. However, if the if the contemptor was not informed of the right to
movant requests more than 180 days in jail and/or counsel and did not knowingly and intelligently
more than a $500.00 fine, this rises to the level of a waive that right. In re Bishop, 2010 WL 374573 (Tex.
“serious sentence” in which the respondent can request App.—Houston [14th Dist.] February 4, 2010, orig.
a jury trial. Ex Parte Sproull, 815 S.W.2d 250 (Tex. proceeding) (mem. op.).
1991); In Re Baker, 99 S.W.3d 230 (Tex. App.
Eastland—2003, no pet.) In most motions for D. Community Supervision
enforcement, the movant requests the respondent to be If a respondent is found in contempt and
held in contempt and jailed for a period of six months sentenced to jail, the court may suspend the sentence as
for each separate violation. If this is the case, be long as the respondent complies with certain
certain to state whether the movant wants the sentences conditions. Tex. Fam. Code §157.211. The conditions
to run concurrently or consecutively. If the time is to imposed on the respondent may include:
run concurrently, and the period of time requested for
incarceration is less than six months, the respondent 1) reporting to a community supervision officer;
may not receive a jury trial. However, if the time is to 2) allowing a community supervision officer to
run consecutively, or if the motion is silent on this visit the respondent at the respondent’s home
point, the respondent could request and receive a jury or elsewhere;

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Child Support Enforcement and Possession Chapter 29

3) obtaining counseling on financial planning, no later than the third working day after the date the
budget management, conflict resolution, court becomes available, but in no case should it be
parenting skills, alcohol or drug abuse, or more than seven working days after arrest. Tex. Fam.
other matters causing the respondent to Code §157.216. Unlike in a motion for enforcement
violate the order; and contempt, the respondent does not have the
4) paying child support and arrearages; affirmative defense of inability to pay. In re B.C.C.
5) paying court costs and attorney’s fees; 187 S.W. 3d 721 (Tex. App.—Tyler 2006, no pet.).
6) seeking employment assistance services However, it is imperative to note that the probation
through the Texas Workforce Commission; violations do not automatically become additional acts
and, of contempt. The contemptor may be punished for the
7) participating in mediation or other services to contemptuous acts in the probation judgment, but not
alleviate conditions that prevent the for the probation violations occurring after the
respondent from obeying the court’s order. judgment. Ex Parte Whitehead, 908 S.W.2d 68 (Tex.
App.—Houston [1st Dist.] 1995.
The initial period of community supervision may not If a subsequent compliance hearing is ordered, the
exceed ten years. Tex. Fam. Code §157.212. The obligor must have notice of the subject matter, possible
court may continue the community supervision past consequences, or allegations that will be considered at
ten years to “the earlier of: that compliance hearing. Failure to provide this notice
to the obligor will render a revocation order void. In re
a) the second anniversary of the date on which Bishop, 2010 WL 374573 (Tex. App.—Houston [14th
the community supervision first exceeded 10 Dist.] February 4, 2010, orig. proceeding) (mem. op.)
years; or
b) the date on which all child support, including F. “To Contempt or Not To Contempt”
arrearages and interest, has been paid.” (Alternatives to Contempt)
Before filing an enforcement action that requests
Id. contempt, several factors should be considered.
The case of In re Zandi, 230 S.W.3d 76 (Tex. Obviously, people need to pay their child support and
2008) requires that an order suspending a contempt allow possession of the child, and if they do not, they
finding and resetting the case for review at a later date should be held accountable. But, is incarceration
shall inform the respondent that the community always the answer?
supervision may be subject to revocation. The initial Upon being served with a motion for contempt
opinion in Zandi appeared to require new service of requesting jail time, some respondents do everything
process on the respondent before the review hearing. within their power to raise the money to at least pay
After an amicus curiae brief was filed, the Texas something toward the arrearages. Jail is a great
Supreme Court, in a supplemental hearing, clarified its incentive for people to pay. If the respondent does not
position on this matter by finding that any such order pay, then it appropriately punishes them for the
would be sufficient if the initial order sets out the terms violation. If the respondent is held in contempt but the
by which the obligor can comply and avoid jail sentence is suspended, they have incarceration
incarceration. The original order in Zandi, granting “hanging over their head” as an incentive to pay.
community supervision, suspended the jail sentence for However, if I had a dollar for every time I have
six months for “review and status.” This did not put heard an obligor say, I can’t work and pay my child
the obligor on notice that he was subject to possible support if I’m in jail, I’d be retired and playing poker
incarceration. full time in Las Vegas. Unfortunately, there is some
truth to that statement. Most respondents cannot pay
E. Motion to Revoke Community Supervision their child support if he or she is in jail. The decision
Unfortunately, quite often a respondent who has to ask for contempt is especially important if the
been placed on community supervision fails to live up respondent will lose their job if incarcerated or the
to the conditions required in the supervision plan. obligee desperately needs the money. As such, it
When this happens, you can ask that the community becomes imperative for us as lawyers to consider all of
supervision be revoked. A motion to revoke the ramifications of filing a contempt action for child
community supervision must be verified. Tex. Fam. support. Again, this issue must be thoroughly
Code §157.214. If the motion itself alleges a prima discussed with your client. This is a case-by-case
facie case for the revocation of suspension of the analysis that you should cover with your client while
community supervision, an arrest warrant may be reviewing all possible avenues for compliance. A well
issued. Tex. Fam. Code §157.215. Once the known adage holds especially true here: “Be careful
respondent is arrested, a non-jury hearing must be held what you ask for, you just might get it.”

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Child Support Enforcement and Possession Chapter 29

G. Judgment for Arrearages the respondent was ordered to provide the court and the
In a hearing for enforcement, the court will set the state case registry with a current mailing address under
amount of the child support arrearages that need to be Chapter 105 of the Texas Family Code, the movant
paid. This may be paid in a lump sum or in only needs to send a notice of the hearing and a copy
installments. of the motion to the last-recorded address. If you serve
Chapter 157 of the Texas Family Code dictates a respondent by First-Class Mail, you have to file with
the rules for money judgments. A request for the court a certificate of service showing the date of the
judgment for child support arrears is usually coupled mailing and the name of the person who sent the
with a motion for contempt. An advantage of a notice. Tex. Fam. Code §157.065.
judgment for arrearages is that the judgment is not Interest for child support arrears is accumulated
limited by the personal property exemptions of the on payments that are 31 days late or more. Tex. Fam.
Texas Property Code. The only property that cannot Code §157.266. Pre-judgment interest on child support
be reached by a child support judgment is a homestead. arrearages are mandatory and not discretionary.
Tex. Prop. Code §42.005. A cumulative money Medrano v. Medrano, 810 S.W.2d 426 (Tex. App.—
judgment is not a new cause of action, but rather it is San Antonio 1991, no writ). Interest arrearages dated
an accumulation of all the judgments that arise by through December 31, 2001 are calculated at the rate
operation of law under Texas Family Code of twelve percent. After January 1, 2002, the interest
§157.261(a). rate is calculated at six percent. In re A.R.J., 97
Remember that a motion for a cumulative money S.W.3d 833 (Tex. App.—Dallas 2003, no pet.).
judgment must be filed on or before ten years from the A final money judgment for unpaid child support
date the child support obligation terminates. The shall include the following:
motion should be filed in the court of continuing,
exclusive jurisdiction. Tex. Fam. Code §157.001(d). (1) unpaid child support not previously
Just like a motion for contempt, a motion for confirmed;
money judgment must
(2) the balance owed on previously confirmed
1) state the provisions of the original order that arrearages or lump sum or retroactive support
were violated (§157.002(a)(1)); judgments;
2) state the alleged violations (§157.002(a)(2));
3) state the relief requested (§157.002(a)(3)); (3) interest on the arrearages; and
4) state the amount of child support owed, the
amount paid, and the amount due (4) a statement that it is a cumulative judgment.
(§157.002(b)(1)); and
5) be signed by the movant or the movant’s Tex. Fam. Code §157.263.
attorney (§157.002(a)(4)).
H. Child Support Liens
A motion for money judgment may include (1) a copy Pursuant to Texas Family Code §157.312, failure
of the payment history (§157.002(b)(3)); and (2) a to pay child support as ordered may result in a child
statement that additional violations may occur on dates support lien. By operation of law, a child support lien
between the date the motion is filed and the hearing arises by operation of law when any child support
date (§157.002(e)). payment is delinquent. Tex. Fam. Code §157.312(d).
Unlike a motion for contempt requesting Every child support payment that is not timely made is
incarceration, a motion seeking a cumulative money a judgment. Tex. Fam. Code §157.261. There is no
judgment does not have to set out in detail every requirement that you receive a child support
payment owed and missed. Totals would be sufficient cumulative money judgment before filing a child
for a request for a money judgment. support lien. A child support lien may issue
Please note that, after January 1, 2010, child “regardless of whether the amounts have been
support arrearage payments are calculated differently. adjudicated or otherwise determined.” Tex. Fam. Code
For all payments received after January 1, 2010, the §157.312(d). A lien can attach to all the property
payment will go to the principal first and then the owned by the obligor except a homestead. Tex. Fam.
interest. Act of May 28, 2009, 81st Leg., R.S., S.B.No. Code §157.317.
865, §18(to be codified as an amendment to Tex. Fam. The contents of the lien must include the
Code §157.268). following eleven elements, as set out in Texas Family
If the movant is only requesting a cumulative Code §157.313:
money judgment and not a contempt, Texas Family
Code §157.065 allows service by First-Class Mail. If

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Child Support Enforcement and Possession Chapter 29

(1) the name and address of the person to whom may dispute the arrearage amount by filing
the notice is being sent; suit under Section 157.323.

(2) the style, docket or cause number, and The lien shall be verified unless the Title IV-D agency
identity of the tribunal of this or another state is using it. Tex. Fam. Code §157.313(c)(e).
having continuing jurisdiction of the child
support action and, if the case is a Title IV-D 1. Time Periods
case, the case number; A child support lien is effective until “all current
support and child support arrearages, including
(3) the full name, address, and, if known, the interest, any costs and reasonable attorney’s fees, and
birth date, driver’s license number, social any Title IV-D service fees … have been paid …”
security number, and any aliases of the Tex. Fam. Code §157.318(a).
obligor;
2. Where to File Liens
(4) the full name and, if known, social security The lien shall be recorded with the county clerk’s
number of the obligee; office. Within twenty-one days of the filing, the
obligee shall then provide a copy of the lien to the
(5) the amount of the current or prospective child obligor by first class or certified mail at the last known
support obligation, the frequency with which address. Tex. Fam. Code §157.314(c). A child
current or prospective child support is support lien on real property has to be renewed every
ordered to be paid, and the amount of child ten years. Tex. Fam. Code §157.318(d). For purposes
support arrearages owed by the obligor and of establishing priority of liens, a renewed lien dates
the date of the signing of the court order, back to the date of the original lien. Id. This change
administrative order, or writ that determined applies only to child support liens on real property filed
the arrearages or the date and manner in after May 26, 2009. Id.
which the arrearages were determined; A child support lien may attach to a retirement
plan, life insurance proceeds, cash surrender value in
(6) the rate of interest specified in the court life insurance policies, claims owed to the obligor for
order, administrative order, or writ or, in the personal injury or negligence, or an inheritance given
absence of a specific interest rate, the rate to the obligor. Tex. Fam. Code §157.316-317. A child
provided for by law; support lien may also be filed against mutual funds,
401k accounts and money market accounts. There are
(7) the name and address of the person or agency three mutual fund clearing houses that process the
asserting the lien; majority of the bank mutual fund transactions in the
United States. Filing a lien with all three of these
(8) the motor vehicle identification number as funds increases the obligee’s chances of obtaining
shown on the obligor’s title if the property is money the obligor is holding in a stock account. The
a motor vehicle; mutual fund clearing houses are:

(9) a statement that the lien attaches to all Fidelity Investments

nonexempt real and personal property of the Enterprise Processing Services
obligor that is located or recorded in the 100 Crosby Parkway
state, including any property specifically Covington, Kentucky 41015
identified in the notice and any property Fax (800) 974-9684
acquired after the date of filing or delivery of
the notice; Legal Department
Pershing, L.L.C.
(10) a statement that any ordered child support not 1 Pershing Plaza
timely paid in the future constitutes a final Jersey City, New Jersey 07399
judgment for the amount due and owing, Tel: (800) 443-4342
including interest, and accrues up to an Fax: (201) 413-4799
amount that may not exceed the lien amount;
and, CIT Group/Consumer Finance, Inc.
715 S. Metropolitan Avenue
(11) a statement that the obligor is being provided Oklahoma City, OK 73108
a copy of the lien notice and that the obligor Tel: (800) 621-1437

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Child Support Enforcement and Possession Chapter 29

Fax: (405) 553-4790 claims in litigation, or, as to property of the

obligor in the possession or control of a third
Brokerage houses like Edward Jones are not a member party, from the date the lien notice is
of these clearing houses and will require the filing of a delivered to that party.
separate lien. If you know where the obligor banks,
ask where the department for the liens and levies is for (b) A lien attaches to all non-homestead real
the brokerage accounts. Bank brokerage operations are property of the obligor but does not attach to
set up under different corporate identities from the a homestead exempt under the Texas
banks. For example, delivery to Bank of America does Constitution or the Property Code.
not necessarily mean you have service on the Bank of
America brokerage department. a. Financial Institutions

3. Effect of Lien Notice • A child support lien may be filed on a financial

If a person who has actual notice of the lien institution that is holding money for an obligor.
possesses any nonexempt property of the obligor that Tex. Fam. Code §157.3145. This includes banks
may be subject to the lien, that person is prohibited and credit unions. The lien applies to all accounts
from turning over, releasing, selling, transferring, that are in the obligor’s name or in which the
encumbering, or conveying the property unless a obligor has a beneficial interest. Tex. Fam. Code
release of lien has been signed by the claimant, or a §157.311(1)(A).
court has released the lien after notice to the claimant. • A child support lien may be delivered to the
A person who violates this provision may be joined as institution’s registered agent, main business
a party to a foreclosure action and is subject to the address or an address designated by the financial
same penalties provided for the obligor. Tex. Fam. institution to accept liens. The statute does not
Code §157.319. require service, only delivery. The lien does not
have to be filed with the clerk’s office. The lien is
4. Property to Which Lien Attaches effective even if the institution’s main office is not
Texas Family Code §157.317 states the property in Texas. Tex. Fam. Code §157.3145(b). Most
to which a child support lien can attach: banks have a garnishment department and would
prefer to have the lien delivered to that specific
(a) a child support lien attaches to all real and department. You should contact the financial
personal property not exempt under the institution to find out where they want the lien
Texas Constitution or other law, including: delivered.
• A child support lien served on a financial
(1) an account in a financial institution; institution freezes the account. No other
transactions can be made on that account. Tex.
(2) a retirement plan, including an Fam. Code §157.319.
individual retirement account; and
b. Motor Vehicles
(3) the proceeds of a life insurance policy, If the lien is recorded on the title of a particular
including the proceeds from a life vehicle, that child support lien only attaches to that
insurance policy or annuity contract and specific vehicle. Tex. Fam. Code §157.316(b). To be
the proceeds from the sale or assignment able to record the lien on the title, the court order
of life insurance or annuity benefits, a enforcing the child support obligation (not a child
claim for compensation, or a settlement support lien but an enforcement order or money
or award for the claim for compensation, judgment) must include the vehicle identification
due to or owned by the obligor; and number of the vehicle and order the obligor to
surrender the title to the obligee for recording. Id. The
(4) property seized and subject to forfeiture obligee may then send a certified copy of the order and
under Chapter 59, Code of Criminal the application for title to:
Procedure.
Texas Department of Transportation
(a-1) A lien attaches to all property owned or Operations Branch
acquired on or after the date the lien notice or 4000 Jackson Ave.
abstract of judgment is filed with the county Austin, TX 78731
clerk of the county in which the property is Tel: (512) 302-2378
located, with the court clerk as to property or

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Child Support Enforcement and Possession Chapter 29

A new title should be issued for the vehicle that 3. Contest of Levy
reflects the lien on the title. The problem with this A person with an interest in the financial account,
relief is that the obligor has to surrender the title to the including the obligor, must file an objection to the
obligee. If the obligor has not paid his child support to Notice of Levy within 10 days from the date of its
this point, this is probably a futile effort. A writ of receipt. Tex. Fam. Code §157.328(b). The contest of
execution on a judgment to retrieve the vehicle after a the levy is the same as the contest of a child support
judgment would probably be more worth your time. lien that is described more thoroughly under that
subsection in this paper.
5. Foreclosure
Texas Family Code Section 157.323 allows for a 4. Payment of the Levy
foreclosure on a child support lien. The foreclosure If the obligor does not contest the levy, the
must be filed in the court in which the lien notice was financial institution shall pay the money to the obligee
filed, the district court of the county in which the not earlier than the 15th day nor later than the 21st day
property is located, or the court of continuing after delivery of the levy. Tex. Fam. Code
jurisdiction. Id. §157.327(b)(2). The financial institution that receives
If the court finds that a child support arrearage is the levy is obligated to contact any other person that
owed, the court shall render a judgment against the has an interest in the account so that they have an
obligor. The court shall then order an authorized opportunity to file a contest. If a financial institution
official to levy execution to satisfy the lien, costs, and does not honor the levy, that entity becomes liable for
attorney’s fees. This satisfaction occurs by selling any the amount equal to the property held by the
property on which a lien is attached or ordering anyone institution, not to exceed the total amount of
in possession of nonexempt property or cash owned by arrearages. Tex. Fam. Code §157.330.
the obligor to dispose of the property as the court may
order. Tex. Fam. Code §157.323. J. QDRO
Just like using a qualified domestic relations order
6. Contest of Child Support Lien to effect a property division, a QDRO may be used on
In order to acquire the issuance of a lien, the only a qualified plan to secure payment of child support.
order the obligee needs is the original order setting However, like a property division, the QDRO must be
child support. If a timely contest to the amount of accepted by the plan administrator. The details of
arrearages in the child support lien is filed, the court drafting an acceptable QDRO for the payment of child
has jurisdiction to make a determination of arrearages. support or child support arrears goes beyond the scope
Tex. Fam. Code §§157.323(a)(c). of this paper. Just bear in mind that this remedy is
available.
I. Child Support Levy
A child support lien freezes a financial account, K. Delivery of Property
but a levy is still required to be able to obtain the Turnover orders are governed by Section 31.002
money in the account. A judgment, or administrative in the Texas Civil Practices and Remedies Code.
determination of child support arrears, is required to
file a child support levy. Tex. Fam. Code §157.327(a). (a) A judgment creditor is entitled to aid from a
An administrative determination of child support court of appropriate jurisdiction through
arrears occurs when the arrearages are determined by injunction or other means in order to reach
an administrative or judicial writ of withholding under property to obtain satisfaction on the
Chapter 158 of the Texas Family Code. judgment if the judgment debtor owns
property, including present or future rights to
1. How to File property, that:
A levy is delivered in the same way a child
support lien is delivered. You must send a copy of the (1) cannot readily be attached or levied on
lien to the obligor at the same time you send the levy to by ordinary legal process; and
the financial institution. Tex. Fam. Code §157.328.
(2) is not exempt from attachment,
2. Time Periods execution, or seizure for the satisfaction
A child support levy can be delivered anytime of liabilities.
there is a child support judgment or upon rendition of
an administrative determination of arrearages. Tex. (b) The court may:
Fam. Code §157.327(a).

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(1) order the judgment debtor to turn over b) a judgment determination through a child
nonexempt property that is in the support lien determination under Texas
debtor’s possession or is subject to the Family Code Section 157.323; or
debtor’s control, together with all c) a judicial or administrative writ of
documents or records related to the withholding in Chapter 158.
property, to a designated sheriff or
constable for execution; 2. How to File
An application, and the granting of a turnover
(2) otherwise apply the property to the order, is an ex parte proceeding and does not require
satisfaction of the judgment; or notice to the obligor. Ross v. 3D Tower Limited, 824
S.W.2d 270, 272 (Tex. App.—Houston [14th Dist.]
(3) appoint a receiver with the authority to 1992, writ denied); Sivley v. Sivley, 972 S.W.2d 850,
take possession of the nonexempt 861 (Tex. App.—Tyler 1998, no pet.), citing Ex Parte
property, sell it, and pay the proceeds to Johnson, 654 S.W.2d 415, 418 (Tex. 1983). Before
the judgment creditor to the extent granting a turnover order, the court must first find that
required to satisfy the judgment. nonexempt assets exist that cannot be reached by
ordinary means. For child support purposes, this
(c) The court may enforce the order by contempt includes everything except a person’s homestead. Tex.
proceedings or by other appropriate means in Civ. Prac. & Rem. Code § 31.002(a). After the order is
the event of refusal or disobedience. signed, a copy of the application and order must be
mailed to the obligor.
(d) The judgment creditor may move for the
court’s assistance under this section in the 3. How to Use a Turnover Order
same proceeding in which the judgment is The following assets may be assets to be listed in
rendered or in an independent proceeding. a turnover order:

(e) the judgment creditor is entitled to recover * Rental income. Copher v. First State Bank of
reasonable costs, including attorney’s fees. Pittsburgh, 825 S.W.2d 738, 740 (Tex. App.—
Fort Worth 1993, no writ).
(f) A court may not enter or enforce an order * The right to litigate. A turnover order gives the
under this section that requires the turnover obligee the right act as the obligor in a contract
of the proceeds of, or the disbursement of, dispute to litigate an interest and recover any
property exempt under any statute, including monies.
Section 42.002 of the Property Code. This * Accounts receivable owed to the obligor. Ross v.
subsection does not apply to the enforcement 3D Tower Limited, 824 S.W.2d 270, 272.
of a child support obligation or a judgment * Inheritance rights of the obligor. This comes into
for past due child support. play if the obligor is an executor of an estate and
makes the decision not to make a distribution. A
(g) With respect to turnover of property held by turnover order allows the obligee to act as
a financial institution in the name of or on executor and distribute assets.
behalf of the judgment debtor as customer of
the financial institution, the rights of a 4. Attorney’s Fees
receiver appointed under Subsection (b)(3) The court may award attorney’s fees for
do not attach until the financial institution representing an obligee in obtaining a turnover order.
receives service of a certified copy of the Tex. Civ. Prac. & Rem. Code § 31.002(e). A turnover
order of receivership in the manner specified order may also be utilized in securing attorney’s fees
by Section 59.008, Finance Code. awarded by the court for child support enforcement.

1. Requirements L. Posting of a Bond

To utilize this turnover statute, a party must have The court can order the obligor to post a bond if
one of the following: there is an expectation that future child support
payments will not be made. If those payments are not
a) an ordinary debt remedy of judgment under made, the court can forfeit the bond.
Texas Family Code Section 157.264;

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Child Support Enforcement and Possession Chapter 29

M. License Suspension 2. What Should be Filed

Chapter 232 of the Texas Family Code sets out The petition for suspension of a license shall state
the methods of suspension of a professional, or that the suspension is required under Section 232.003.
recreational, license to secure compliance of a court It shall also state:
order. License suspension for failure to pay child
support may only be obtained if the obligor had (1) the name and, if known, social security
previously been given the opportunity to pay the child number of the individual;
support arrears and failed to do so.
This provision does not apply only to a driver (2) the name of the licensing authority that
license. It can apply to any type of license issued by issued a license the individual is believed to
any licensing authority specifically defined in Texas hold; and
Family Code Section 232.002. This includes the
following licenses: (3) the amount of arrearages owed under the
child support order or the facts associated
* hunting with the individual’s failure to comply with:
* fishing
* medical (A) a subpoena; or
* legal
* real estate (B) the terms of a court order providing for
* plumbers the possession of or access to a child.
* private security
* certified public accountant Tex. Fam. Code §232.005.
* engineer A copy of the record of child support payments
* psychologist kept by the Title IV-D registry, or the local registry,
* nurse may also be attached to the petition. A copy of the
* barber order or agreed payment plan that was violated should
* social worker also be attached. This action will simply make the
* Texas Alcoholic Beverage Commission obligee’s job easier. In In Re C.G., 261 S.W.3d 842,
* lottery ticket sales agent 850 (Tex. App.—Dallas 2008, no pet.) the obligee
argued that Section 232.0004 which requires a three-
Once the order suspending the license is obtained, a month delinquency in child support payments was a
copy must be sent to the licensing authority who will, separate and independent ground sufficient to grant a
in turn, notify the obligor. license suspension. The Dallas Court of Appeals
disagreed finding there was no prior court order or
1. Time to File agreed repayment plan placed into evidence.
The suspension of the obligor’s license may be Also, make sure to review Section 232.006 as
obtained for failure to pay child support under the specific language is required in the notice to the
following conditions: obligor.

(1) the obligor owes child support in an amount 3. Hearing and Order
equal to or greater than the total support due The obligor may request a hearing and a motion to
for three months under a support order; stay suspension. This request must be filed no later
than the 20th day after the date of service on the
(2) has been provided an opportunity to make obligor. Tex. Fam. Code §232.007(a). The license
payments toward the overdue child support suspension shall be stayed pending the hearing. Tex.
under a court-ordered or agreed repayment Fam. Code §232.007(b)(3).
schedule; and If the obligor proves the elements of the case as
set out in Section 232.003, the court shall render an
(3) has failed to comply with the repayment order suspending the obligor’s license unless the
schedule. obligor proves that all arrearages and current child
support have been paid; shows good cause for the
Tex. Fam. Code §232.003. failure to abide by the court’s order; or proves an
affirmative defense under Section 157.008(c). Tex.
Fam. Code §232.008.

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4. Stay of Suspension incorporated companies, and in cases where the

Just like civil contempt, a person can reinstate that defendant in execution has merely an interest
license by performing certain acts. The order may be without right to the exclusive possession in which
stayed conditioned on the obligor’s compliance with a case the interest of defendant may be sold and
repayment schedule. Tex. Fam. Code §232.008(b). conveyed without the presence or delivery of the
property. When a levy is made upon livestock
5. Revocation of Stay running at large on the range, it is not necessary
If the obligor does not comply with the repayment that such stock, or any part thereof, be present at
plan, the obligee, the child support enforcement the place of sale, and the purchaser at such sale is
agency, the court, or the title IV-D agency may file a authorized to gather and pen such stock and select
motion to revoke The obligor must receive notice of there from the number purchased by him.
the hearing on the motion to revoke no less than 10
days before the hearing date. The motion must • Texas Rule of Civil Procedure 650. Notice of Sale
specifically state how the obligor failed to comply with of Personal Property—Previous notice of the time
the repayment plan. Tex. Fam. Code §232.012. If the and place of the sale of any personal property
obligor is not in compliance with the repayment plan, levied on under execution shall be given by
the court shall revoke the license. Id. posting notice thereof for ten days successively
immediately prior to the day of sale at the
N. Writ of Execution courthouse door of any county and at the place
1. Personal Property where the sale is to be made.
The relevant statues are as follows:
• Texas Property Code § 42.005. Child Support
• Texas Rule of Civil Procedure 622. Execution— Liens—Sections 42.001, 42.002, and 42.0021 of
An execution is a process of the court from which this code (regarding exempt property) do not
it is issued. The clerk of the district or county apply to a child support lien established under
court or the justice of the peace shall tax the costs Subchapter G, Chapter 157 of the Texas Family
in every case in which a final judgment has been Code.
rendered and shall issue execution to enforce such
judgment and collect such costs. The execution The rule is simple: Personal property exemptions do
and subsequent executions shall not be addressed not apply to child support obligations. In Dryden v.
to a particular county, but shall be addressed to Dryden, 97 S.W.3d 863 (Tex. App.—Corpus Christi
any sheriff or any constable within the State of 2003, no pet.), the obligor tried to argue that Property
Texas. Code §42.005 violated the Texas Constitution’s
protection of a debtor’s personal property from
• Texas Rule of Civil Procedure 630. Execution on execution for debt. The Corpus Christi Court of
Judgment for Money—When an execution is Appeals held
issued upon a judgment for a sum of money, it
must specify in the body thereof the sum “…[I]t has long been held that the obligation
recovered or directed to be paid and the sum to support one’s child is not a debt, but a
actually due when it is issued, and the rate of natural and legal duty.”
interest upon the sum due. It must require the
officer to satisfy the judgment and costs out of the Id. at 866. Since child support is not a debt, the
property of the judgment debtor subject to Legislature may allow the collection of child support
execution by law. against the obligor’s personal property. Id.

• Texas Rule of Civil Procedure 649. Sale of 2. Acquiring a Writ of Execution

Personal Property—Personal property levied on The District Clerk prepares and issues the writ of
under an execution shall be offered for sale on the execution based on the judgment. A writ of execution
premises where it is taken in execution, or at the is valid for thirty, sixty, or ninety days upon the request
courthouse door of the county, or at some other of the creditor. Tex. Rule of Civ. Pro. §629. If the
place if, owing to the nature of the property, it is writ will be executed in the county in which it was
more convenient to exhibit it to purchasers at such issued, the District Clerk will forward it to the sheriff’s
a place. Personal property susceptible of being department. Otherwise, the clerk will return the writ to
exhibited shall not be sold unless the same be the obligee’s attorney for forwarding to the sheriff of
present and subject to the view of those attending the county where the property is located. A private
the sale, except shares of stock in joint stock or process server cannot serve a writ of execution. After
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Child Support Enforcement and Possession Chapter 29

the sheriff’s office seizes the property, they are to hold on whether or not contempt is granted. Other remedies
the property for ten days to allow the obligor to attempt are usually available.
to reclaim it through payment. If the property is not
reclaimed, it is sold at auction. After the costs for
execution and sale have been deducted, the remaining
proceeds are paid to the obligee.

O. Make-Up Visitation
The court may order additional periods of
possession or access to compensate for the denial of
court-ordered possession or access. The additional
periods must be of the same type and duration as those
of the possession or access that was denied, and they
may include weekend, holiday, and summer possession
or access. Tex. Fam. Code §157.168(a)(1)(2).
The additional periods of possession must occur
on or before the second anniversary of the date the
court finds that court-ordered possession or access has
been denied. Tex. Fam. Code §157.168(a)(3).
The court may not enter an order for make-up
visitation that grants possession of the child “until
further order of the court.” In re Parks, 264 S.W.3d 59,
61, n.1 (Tex. App. – Houston [1st Dist.] 2007, orig.
proceeding).
Perhaps the most important thing to remember
about make-up visitation is that the person denied
possession or access is entitled to decide the time of
the additional periods, provided they are of the same
type and duration as those of the possession or access
denied. Tex. Fam. Code §157.168(b).

VI. CONTRACTUAL ENFORCEMENT

Even if the order is not specific enough for
contempt, the obligee may still have other contractual
remedies available. Robbins v. Robbins, 601 S.W.2d
90 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ).

VII. CONCLUSION
Trying to obtain compliance with a court order
may seem like a difficult task, but, thankfully, the
Texas Family Code provides us with both practical and
persuasive means to do so. The provisions outlined in
the code are not difficult to follow, but they do require
attention to detail. Such detail must be taken not only
with the prior order and the substance of the motion,
but also to the contempt order and commitment order.
The pleadings for enforcement actions, particularly
those asking for the remedy of contempt, are among
the most technically critical pleadings that we family
lawyers draft. If you have any issues in the preparation
of your pleadings or orders, always refer to the Texas
Family Law Practice Manual. This six volume set has
been prepared, and is maintained, with an amazing
level of sophistication and detail. Lastly, remember
your motion to enforce does not succeed, or fail, based

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