In a recent case the Attorney General filed a suit to modify the child support obligation of a Harris County father for the benefit of his two disabled children who were each no longer under the age of 18. The father’s child support attorney reviewed the law and challenged the authority of the Attorney General to file the child support modification lawsuit.

The Texas Family Code specifically outlines which individuals have the authority to file a lawsuit for child support for adult disabled children. These individuals are:

1. a parent of the child or another person having physical custody or guardianship of the child under a court order;  or
2. the child if the child: (a) is 18 years of age or older; (b) does not have a mental disability;  and (c) is determined by the court to be capable of managing the child’s financial affairs.

The statute does not mention the Attorney General and after careful consideration the court found that the Attorney General does not have inherent authority to file a lawsuit concerning child support for an adult disabled child. The outcome may have been different if an individual who did have proper authority assigned their rights to the Attorney General.

This case is an important reminder that the Attorney General makes mistakes and even they are not above the law. If you want something done right then consider an experienced child support lawyer. Contact us today at (832) 592-7913 if you need legal help with your Montgomery County child support case.

If you would like additional information, check out our free Woodlands Divorce Guide.

The Arguments on Appeal

The father in this was is A.J. A.J. argues that the trial court admitted inadmissible hearsay to prove his 2004–2007 earnings for the purpose of calculating child support. The Attorney General argues that Hardy can testify on the basis of hearsay sources because she qualifies as an expert per the Texas Rules of Evidence.

The Court’s Analysis

The trial court found where the parties have adequately complied with their discovery obligations, experts can generally testify regarding their opinions and give the reasons they hold their opinions without prior disclosure of facts or underlying data, unless the court orders otherwise. Trial courts are not automatically required to exclude the expert’s underlying facts or data, even if inadmissible, but instead must only do so when “the danger that they will be used for a purpose other than as explanation or support for the expert’s opinion outweighs their value as explanation or support or are unfairly prejudicial.”

In this case, the Attorney General’s calculation of A.J.’s child support obligation depended, in part, on his earned income for the 2004–2007 period. Although the Attorney General had obtained information on A.J.’s earned income through a subpoena, the underlying records that she apparently received were not properly proven up and thus, inadmissible hearsay. Thus, the court concluded that the Attorney General’s testimony about A.J.’s levels of income between 2004 and 2007 was inadmissible hearsay. Nevertheless, A.J. also testified about his income for the period 2004–2007. According to A.J., it was more likely than not that he had made more than $100,000 every year since 2004.

Hearsay Not Prejudicial

The court ruled that in light of A.J.’s testimony that his income exceeded $100,000 for each year at issue, the evidence supported the trial court’s use of the figure of $6,000 per month as A.J.’s net monthly income. On this record, other admissible testimony, consisting of A.J.’s testimony about his income, supports the figure the trial court used to calculate A.J.’s child support obligation. Therefore, the admission of the Attorney General’s testimony to explain the basis of her opinion was not unfairly prejudicial.

About the Author

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of The Woodlands, Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a divorce lawyer in The Woodlands, TX today and protect your rights. Contact The Shea Law Firm at (832) 592-7913.

In The Interest of R.C.T. 2009-TX-0408.559 gives us an example of when a Texas Attorney General goes too far to collect assets for child support. In the case, the husband and wife agreed to a figure of $9,024 that the husband owed in retroactive child support. The Court also approved an agreement for the husband to repay the retroactive support by monthly installments of $150. The Attorney General was not satisfied with this resolution.

The Attorney General did not want to wait for monthly installments of $150. After the Court approved the order, the Attorney General

filed a child support lien against the husband and notified the U.S. Department of Treasury that the husband owed past-due support in excess of $500. The Treasury Department then informed the husband that his tax refund of almost $4,000 would be intercepted and paid to the Attorney General’s office in payment of the retroactive child support.

In order for the Attorney General to legally intercept the husband’s tax refund the husband must be “delinquent” in his child support payments. Until this case, the Court had not interpreted exactly what qualifies as “delinquent” for the purpose of intercepting a tax refund. In its discussion, the Court concluded that in order for a person to be delinquent on their child support obligation they must have failed to comply with the court order concerning child support.

In this case, the court order for payment of the retroactive child support was $150 per month. At the time the Attorney General attempted to intercept the husband’s tax refund the husband was in compliance with the court order. As a result, the Court concluded the retroactive child support balance was not “delinquent” and therefore the Attorney General could not act against the tax refund. If the husband had not made his monthly payments of $150 then the outcome may have been different.

Speak with a Woodlands Divorce Attorney today if you need assistance with your child support issue.