Enforcement of Unpaid Obligations in Texas Divorce Decree

If a parent does not comply with a Texas custody or child support order, the other parent may seek enforcement of the court order and, in some cases, request the parent be held in contempt.  A father recently challenged an order granting the mother’s motion to enforce the divorce decree.

When the parties divorced, one of their two children was still a minor.  Pursuant to the divorce decree,  the parties were required to equally share health care costs, the cost of a vehicle, and college fund for the minor child.  The decree also ordered the father to pay for the minor child’s phone plan until she finished high school, and then that expense would also be split.  The decree incorporated an agreement incident to divorce that required the mother and father to share the other child’s healthcare costs.

Both parties moved to enforce the decree in 2019, each seeking contempt, or clarification if the court found the decree was not sufficiently specific.  The trial court’s subsequent order required the parties to communicate and exchange expense sharing exclusively through MyFamilyWizard.  The court’s order also clarified that the father was required to pay full cost of the minor child’s phone.

The mother moved to enforce in August 2021, ultimately alleging thirty violations in addition to breach of contract claims.

The father filed a motion to enforce the following November, alleging the mother had violated the 2019 order by disparaging him on multiple occasions.  The mother argued the 2019 order did not include a loving and caring provision. A loving and caring order orders each parent to encourage and nurture the relationship between the children and the other parent and enjoins the parties from disparaging each other in the children’s presence.  The trial court had orally pronounced such an order should be put in place, but did not include it in the written order.

The trial court signed an order in December 2021 to include a loving and caring order in the 2019 order.

Both parties and the adult child testified at the hearing on the enforcement motions.  The court signed an order finding 30 violations of the decree by the father, most for his failure to pay or reimburse the mother for his share of the expenses and one for not using MyFamlyWizard to communicate with and reimburse the mother. The trial court also found five violations for breaching the agreement. The trial court entered an $8,855.64 judgment for the mother and awarded her $10,485.00 in attorney’s fees.  The court also found the father failed to pay his half of the child’s health insurance premiums and held him in contempt.

The appeals court granted a writ of mandamus and ordered the trial court to vacate the contempt terms and related attorney’s fees. After the trial court vacated the contempt findings and reduced the judgment and attorney’s fees, the father appealed.

Sufficient Evidence

The father argued the mother had not presented more than a scintilla of evidence while he had presented uncontroverted evidence he did not owe her most of the alleged arrearages.

Medical support and health insurance premiums constitute child support obligations pursuant to Tex. Fam. Code § 154.183(a)(2).  When a trial court considers a motion to enforce child support, including confirmation of arrearages, the court must calculate the arrearage based on evidence of payment.  The trial court must consider any counterclaims or other offsets before rendering the final judgment.  The burden to prove the arrearage is on the person seeking the arrearage, and the respondent must then prove any counterclaim or offset.

The mother testified at the hearing that the decree required the father to reimburse her for medical expenses, health insurance, automobile insurance, and college funds for the children. She testified that each alleged violation correlated to the father’s obligations under the decree, that the obligations had not been paid, and she had tracked what was owed and what had been paid in MyFamilyWizard.  She also testified she informed him he was delinquent in 2019 and 2020.  She testified he sent checks each month, but they were insufficient. She said she applied any new payment to the oldest outstanding obligation.

The father testified the mother told him he was not behind for 2019 and 2020.  He thought he was current on everything but the payments for the child’s car, which he did not believe he was required to pay if the child was not a full-time student.  He said he was sending money for unreimbursed medical expenses.  He also said he did not know about some of the alleged violations and did not check MyFamilyWizard.

The father argued the mother had not presented evidence he was in arrearages and that he provided uncontroverted evidence she acknowledged he had paid her for most of it.

The appeals court pointed out that testimony was the only evidence at the hearing.  The father cited exhibits to his reconsideration motion.  The appeals court noted that, although the trial court took judicial notice of the motion, it could not take judicial notice of the facts asserted in the exhibits. The exhibits had not been introduced into evidence by either party.  The appeals court rejected the father’s argument those exhibits showed he had satisfied the arrearages.

The appeals court concluded there was sufficient evidence supporting the trial court’s finding the father violated the decree.  The trial court determines the credibility of the witnesses and had the discretion to believe the mother instead of the father.

Violation of the Agreement

The father also argued the mother had not presented any evidence of the obligations imposed on him by the agreement.

The trial court had incorporated the agreement into the decree by reference.  The parties did not, however, enter the agreement into evidence or cite where the trial court took judicial notice of it. Furthermore, the agreement itself was not part of the record.

The parties disagreed about the father’s obligations under the agreement at the hearing. Pursuant to Tex. R. Evid. 201(b), the trial court could not take judicial notice of the father’s obligations under the agreement because the only evidence regarding the contents of the agreement was disputed. The appeals court concluded the trial court abused its discretion in finding the father violated the agreement when the agreement was not in the record.  The appeals court reversed the part of the order that granted relief to the mother for breach of contract and reduced the amount of the judgment accordingly.

Attorney’s Fees

The father also challenged the award for attorney’s fees.  Pursuant to Tex. Fam. Code § 9.014, a court may award attorney fees in an enforcement action.

The father argued the mother had not segregated the fees for each violation.  The appeals court noted there was an exception to the general rule that a party segregate fees when the recoverable and unrecoverable claims advanced by the legal services are so intertwined they do not need to be segregated.  The appeals court concluded the mother’s claims required proof of basically the same facts.  She had to prove the father’s obligations, the violations, and the resulting damages.  The appeals court concluded that the legal services required for her to prosecute her claims were so intertwined that the exception applied and she did not have to segregate the fees.

The appeals court also rejected the father’s argument there was insufficient evidence supporting the attorney’s fees award.

The appeals court reversed the order finding the father breached the agreement and rendered judgment in the reduced amount.  The appeals court overruled the rest of the father’s issues.

Call McClure Law Group

The parties in this case did not present documentary evidence to support their testimony.  If you are seeking or opposing an enforcement action, an experienced Texas family law attorney can work with you to identify the appropriate evidence to support your case.  Contact McClure Law Group at 214.692.8200 to set up your consultation.



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