A court may retroactively modify a Texas child support order in some circumstances, but it generally may only do so as to child support obligations that accrue after the earlier of the date of service of citation or an appearance in the modification suit. Tex. Fam. Code 156.401. A father recently challenged a modification terminating his child support obligation, arguing it should have applied retroactively to the date of his son’s eighteenth birthday.
When the son was fourteen, he enrolled in the American School, which is a private, distance-learning school. Students complete their course by correspondence and computer-based work. Students take two courses at a time and must complete a course before being provided another. Courses earn one-half to one unit, and students must earn eighteen units to graduate high school.
The son’s brother sadly died in April 2017. The mother moved out of the marital home in June and the parents filed for divorce in July. The son remained in the home with his father. With all of this going on, the son fell behind and performed no work for his courses for a period of nine to ten months.
The parents entered an agreed divorce decree and child support order in 2018. The father started paying $1,710 per month in child support. The son was seventeen years old at this point, and was about two years behind in graduating. The agreed child support order provided that the child support would not terminate while the son was enrolled “on a full-time basis in a private secondary school in a program leading toward a high school diploma. . .” if he was meeting the school’s minimum attendance requirements.
Father Seeks Termination of Child Support
The father moved to terminate the child support obligation after the son turned nineteen in 2020. A letter from the school showed the son had an expected graduation date of August 2021 and had obtained ten and a half units of credit. The mother testified he had recently completed three and a half more units. He was taking two courses in February 2021 when the hearing on the temporary orders occurred. The mother testified he was currently enrolled full time, had been enrolled on his eighteenth birthday, and attended classes for about four hours “just about every day.” She said he was currently progressing normally. The final hearing occurred in June 2021 and he was in his last course and expected to graduate in July or August.
The trial court signed an order terminating the father’s child support obligation as of February 26, 2021. It denied his requests to recover payments made since the son turned eighteen and for attorney’s fees and costs.
The Father’s Appeal
The father appealed, arguing the trial court erred in not terminating the child support obligation effective on the son’s eighteenth birthday and not ordering the mother to repay the support he had paid since that date. He argued there was no evidence the son was enrolled as of his eighteenth birthday in a private secondary school on a full-time basis in a program leading toward a diploma.
The appeals court noted the father filed the modification petition in July 2020, but there was no evidence of the date of service of citation. The mother appeared in September 2020. The father amended the petition to request retroactive relief on February 23, 2021.
The appeals court concluded the trial court did not have authority to modify the obligation before the date of citation or the mother’s appearance. The trial court therefore did not err by not terminating the obligation effective on the son’s eighteenth birthday. Likewise, it did not err in denying the request for a refund of support paid since the son’s eighteenth birthday.
The appeals court rejected the father’s argument that he was entitled to mandatory attorney’s fees pursuant to Texas Fam. Code § 154.012(b). That section requires the court to order an obligee to pay the obligor’s attorney’s fees and court cost upon a finding the obligee failed to return a payment that exceeded the amount of support ordered. The appeals court concluded this statute was inapplicable because it applies to mistaken payments or payments that are intended to be advances against future obligations, but the payments in this case were not in excess of the amount ordered.
Because the mandatory fees were inapplicable, the trial court had broad discretion in determining whether to award attorney’s fees and costs. The father did not show that the trial court abused that discretion and the appeals court found no error in the court’s denial of attorney’s fees and costs.
The appeals court affirmed the trial court’s judgment.
Seek a Dallas Child Support Modification Lawyer
The appeals court’s opinion does not indicate why the father did not file a petition to terminate support when the son turned eighteen. This case shows, however, that retroactive changes to an existing child support obligation are limited. If you are considering seeking termination or modification of a child support order, you should consult with an experienced Texas child support attorney promptly to avoid costly delays. Contact McClure Law Group at 214.692.8200.