Child Support: Statutory And Contractual (Page 9 of 23) in pdf

Child Support: Statutory and Contractual

Chapter 10

Proven Needs – such as Private School

order increasing the child support at the levels set forth

If you are including private school reimbursement

in the agreement would be rendered. Over the ensuing

or payment as child support, include language that this

nine years, husband increased his child support twice

amount is agreed to as a necessary and proven need of

based upon the stipulation. However, husband learned

the child. Otherwise, you may fall into the trap of

that the wife had never filed a motion to modify nor

having to prove a change of circumstances in the

obtained an order directing the modification in a

child’s life that justifies the added expense.

manner consistent with each child support increase.

A recent example is outlined In the Interest of

Subsequently, a dispute arose among the parties

M.A.M., S.W.3d (Tex.App-Dallas, 2011.) Within this

regarding the appropriate amount of child support

suit for modification of prior orders the old and new

which husband should pay. Husband ceased making

presumed cap came into play. The Trial Court applied

payments of child support, contending that the child

the presumed child support percentage for one child

support increases that he had paid pursuant to the

(20%) to the amended cap amount ($7,500.00).

stipulation, but in the absence of a written order, were

―excess‖ payments of support, for which he was

In addition, as additional child support, the father

was ordered to pay 75% of the child’s private school

entitled to credit against any existing child support

tuition, annually.

obligations and future child support obligations. The

The Court of Appeals amended the periodic child

trial court disagreed and found husband in contempt

support award, applying the appropriate child support

for failure to make the child support payments which

percentage to the lower ($6,000.00) cap which

had accrued after the dispute between the parties arose.

governed cases filed before the increased amount. The

On appeal by the husband, the court of appeals

Court of Appeals found that the trial court record

noted that excess payments from an obligor who is not

contained no evidence to demonstrate that private

in arrears may be treated as either (1) a credit against

school is a ―proven need‖ of the child. Tex. Fam. Code

the obligor’s future court ordered child support

§ 154.126(a) & (b). The court noted that evidence must

obligations or (2) a payment to meet the current needs

show some special circumstance which the child in

of the child for which no credit would be given. The

question needs or would ―especially benefit from‖

court of appeals further noted that the ―expressed intent

of the obligor‖ as of the time the obligor made the

some aspect of private school education. There being

no such evidence, the trial court award was reversed.

payment is determinative of whether the excess is to be

Practice Tip: This case is another example of

treated as a credit or not. Additionally, any excess

payment that is ―mistakenly made‖ is to be credited

making an assumption that the trial court will find, and

appellate court will sustain a finding that private

toward the obligation for future child support

education is a ―proven need‖, simply because the child

obligations.

has historically attended private school. A little

The court of appeals determined that the trial

court could have reasonably found that husband’s

creativity in the presentation of the evidence, including

the special benefits of private education such as

payments were intended to comply with the stipulation.

smaller class size, demonstrably enhanced academic

Although the husband contended that his payments

performance, specialized curriculum, etc., can go a

were mistaken because he did not know that wife had

long way in giving substance to a trial court award of

not filed a suit to modify nor obtained an order

private school tuition as an element of ―above

granting modification, the court of appeals concluded

guidelines‖ child support.

that the trial court could have found that husband

waived his right to insist upon the condition precedent,

Intent of the parties control for excess amount

i.e. the filing of a suit to modify and obtaining an order

Bolton v. Bolton. S.W.3d (Tex. App.- Houston

of modification. The court of appeals found no abuse

of discretion and sustained the trial court’s contempt

. Dist.] 2011)

Husband and wife divorced in 1999. There were

finding.

two children of the marriage. The decree of divorce

Practice Tip: Occasionally, we encounter a

provided for child support that referenced the support

situation where an obligor voluntary pays sums to the

being payable for ―the child‖ rather than ―the

obligee in excess of the expressed child support order.

children‖.

If these payments were made by mistake, then some

Following the rendition of the decree of divorce,

formal documentation of that mistake and the intent to

the parties entered into a written stipulation providing

have the excess payments credited to future child

for future child support increases based upon future

support should be filed with the obligee or the child

increases in husband’s income. The agreement

support collecting agency (O.A.G.). Otherwise, it

provided that child support would increase as

would probably be good practice to attempt to obtain a

husband’s income achieved specified income levels.

written agreement from the obligee that, in the event of

The agreement further provided that wife would file a

any future non-agreed increase in child support

suit to modify and in response to the suit to modify an

directed by court order, the excess payments made

Child Support: Statutory And Contractual Page 9

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