Untitled Texas Attorney General Opinion ( 1966 )


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  •          THE               NEY     GENE
    February'7,1966
    Honorable Doug Crouoh            Opinion No. C-599
    District Attorneys
    Tarrant County                   Rer Rnforcement of a aupport
    Fort Worth, Texas                    order under the new Texas
    Uniform Reoiprocal Rn-
    forcement of Support Act
    for an out-of-state,
    plaintiff originally re-
    ceiving the support order
    ancillary to a Texas
    Dear Mr. Crouch:                     divorce decree.
    In your request for an official opinion on the above
    captioned matter you have submittedfrets which we summarize
    a8 follows:
    Plaintiff received a divoroe in a Texas Court and a
    support order for her children ancillary thereto. She and
    the children then moved outside of the State of Texas. The
    defendant haa not contributedto the support of the children
    a8 he wae ordered to do. He has moved from the county where
    the divoroe was entered and into Tarrant County. Plaintiff
    has initiated suit in the state where she now resides under
    a reciprocal enforcementof support act provided by the laws
    of said state. Her potifion has~been certified by a judge
    of said state and haa been sent to Tarrant County to be sued
    on for enforcement.
    You have inquired as to whether in our opinion, a
    suit for enforcementof a support order properly may be
    brought in Tarrant County, under the new Texas Uniform Re-
    ciprooal Rnforcement of Support Act.
    House Bill 138 (Acts of the 59th Legislature,1965,
    Ch. 67gg p. 1561) repealed Articles.2328b-1,2328b-2 and
    2328b-3 while simultaneouslyenacting Article 2328b-4,
    Vernon's Civil Statutes. The Texas Uniform ReoiprooalRn-
    forcement of Support Act contained in the repealed Articlea
    will be hereinafterreferred to, where convenient,ae ~the
    old act, while that act ena,atedby the 59th Legislature,
    Artiole 2328b-4, Vernon'8 Civil Statutes, will be herein-
    after referred to, where convenient,as the new act.
    -2893-
    “Hon. Doug Crouch, page 2 (C-599) .”
    An Identical fact situation to the one you resent
    was passed on under the old act (Articles2328b-1, E3281~2,
    and 2328b-3, Vernon’* Civil Statutes) in t~hecase of Free-
    ealand, 
    313 S.W.2d 943
    (Tex.Clv.App.1958).The
    eland that the only proper Texas court to
    enforce a supp?%t order issued ancillary to a Texas divorce
    wa8 the court entering it originally.
    There la no provision under the new aot and there
    was no provision under the old act which specifically
    provides for the proper oourt for an enforcement suit to
    be tried under the faots submittedby you.
    ”    .When necessary to B oorreot under-
    standl&*and interpretationof a statute, the
    court will take into considerationthe state
    of the law at the time of its enactment,the
    conditionsdesigned to be dealt with, the good
    intended to be aooomplished,and the mischief
    sought to be prevented or remedied. tither-
    more the subject matter of the enactment and
    the necessity or reason for it are also proper
    subjects of judicial conalderatlon.” 53 Tex.
    Jur.26 236, Statutes, 3162.
    A complete diaoussion of the state of the law per&
    talnlng to enforcementof support orders within the State
    of Texas prior to and at the time of the adoption of the old
    aot la contained in Attorney  General Opinion Ww-784 (1960),
    Any aontempt prooeedlng for the enforcementof a support
    order was anolllary to the original  order and exclusive
    jurisdictionto enforce it remained with the court that en-
    tered the orininal order, one court being-withoutauthorftv
    to punish contempts of amother court. ti par& bowsaies? ”
    
    111 Tex. 399
    , 238 S,W, 635 (ly;r;r);Putty v. Paulkmr, 2~4
    S,W,2d 831 (Tex.Clv.App.1948, no writ h%
    
    193 S.W.2d 970
    (Tex.Civ.App.1946, no writ
    Johns, 172 S.w.2d 770 (Tex.Civ.App.1943,
    -     to the adoption of the old aot, the courts were in com-
    plete agreement in stating that since a support order was of
    an interloautorvnature. onlv the orininal district court had
    juriadlction to-amend, aha
    Tex. 605, 
    290 S.W.2d 5
    8    
    165 S.W.2d 83
    (1942);
    542’(Tex.Civ.App.1956, no
    eupra.
    The old act was adopted aa one law ln a syatematlc
    enactment of sim-ilarstate laws baaed upon the~uniform
    -2894-
    "Hon. Doug Crouch, page 3 (C+gg)."
    Reciprocal Enforcementof Support Act recommendedby the
    National Conferenoe of Commlasionerson Uniform State
    Laws and by the American Bar Aasociatlonin their annual con-
    ferences at Waashington,D.~C. in September, 1950. The condi-
    tiona designed to be dealt with by such laws,~the good intended
    to be accompllahed,and the mischief aought to be prevented or
    remedied th~erebymay be ascertainedby reference to the
    Commlaelonerb'Prefatory Note to the Act. Handbook of Commls-
    bloners on Uniform State Lawa (1930) p. 171.
    The Commiesloneraaet forth the problems making desi-
    rable the proposed statute, in part, as followsr
    "With the increasingmobility of the
    American population the problem of interetate,
    enforcementof duties of support became acute.
    A deserting husband was beyond the reach of
    prooeaa in the state where he had abandoned
    hia family and the family had no means to
    follow him. Welfare departmentssaddled with
    the burden of supporting destitute families
    were often prevented from enforcing the duty
    of aupport in the atate where the.husband could
    be found by decisions holding that the duty
    existed only as to obllgeea within the atate.
    "The avenue of criminal enforcementwas
    not more fruitful. Charges could be preferred
    against the fleeing huaband but he had to be
    returned for trial to the state where the
    offense was committed. Rxtradltionwas both
    expensive and narrowly teohnlcal, and it was
    often impossibleto prove that he had 'fled
    from justice' for frequently he aupported his
    fam$.lyuntil he left the state and only left
    in order to get a job. Even if he were brought
    baak and successfullyprosecuted the result was
    disappointing. The proceedingsrendered recon-
    ciliatlon with the family improbable,took him
    away from hia job in the state to which he had
    fled, and by branding him a convicted crimtial
    lessened the probabilitiesof gainful employ-~
    ment in the home state.
    "The 1950 Act, printed hereafter, attempts to
    improve and extend by reciprocal legislationthe
    enforcementof duties of support through both the
    -2895-
    "Hon. Doug Crouch, page 4 (C-599).”
    criminal and the civil law. Its provisions are
    in addition to remedies now existing for the
    enforcementof duties of support within the state,
    ;
    Eat
    long as the husband remaine in the state, and the
    new act is meant to improve enforcementwhere the
    partiea are in different states." (Emphaals
    suppLied.)
    The crux of the Uniform Act and, in turn, the Texas
    Acts which were,to be patterned thereon, was the two state
    enforcementprocedure. Such procedure waB described as
    follows in the Commissionera~Prefatory Note to the 1950
    Uniform Act, citation aupra page 173.   (We have added in the
    parenthesis,citations to the old and new Texas Acts along-
    side the Commiseioners r Cltationa to the 1950 Model Uniform
    Act.)
    I,. . .In the past, the greatest difficulty
    in enforcing support where the partiea are in
    different statea haa been the expense of travel
    to a distant state to litigate the righta of the
    deMitute obligee. Under this Act this expense
    can be reduced to filing fees plus a few postage
    stampe. In a nutshell, this two-atate proceeding
    is as follows: It opens with an action (Section
    9 of all three acts] which normally will be com-
    menced in the state where the family has been
    deserted (the inltiatlng state). A very simplified
    petition la filed (Section 10 of both the model
    aot and of Article 232813-3of the old Texaa Act;
    Section 11 of the new Texas Act), The judge looks
    it over to decide whether the facts ahow the exis-
    tence of a duty of support and if they do he sends
    the petition and a copy of this Act to a court of
    the reaponding atate to which the husband has fled
    or in which he has property Section 11 of the
    model act and of Article 2324b-3 of the old Texas
    Act;-Section 14 in the new Texas Act). That Court
    will take the ateps necessary to obtain jurisdiction
    of'the husband or his property, will hold a hearing
    (Section12 of the model act and of Article 2328b-3
    of the old Texas Act; Sections 18 and 19 in the new
    Texas Act - prosecuting attorney now given respon-
    sibility for taking action to give court jurisdic-
    tion with court overseeing and If jurisdictioncannot
    be had where petition Is Feceived,-thepetition may
    be forwarded to another court under Sectron 19(b)
    of the new act), and lf~the court finds that a duty
    -2896-
    “lioniDoug Croioh, page 5 (C-599).”
    of support exIot4, It may ord4r the defendant
    to furnish support (Section 13 of the model aot
    and of Article 2328b-3 of the old Texas Act;
    Section 23 of the new sot), and will transmit
    a copy of its ,orderto the court in the initiating
    state (Section 14 of the model act and oi ArtI-:
    cle 2328b-3 of the old Texaa Act; Seotlon 24 of the
    new act). To enforce complla~nce   with ita orders
    the court may subject the defendant to such terms
    and oondltions as it may deam ppoper, may require
    him to furnish bond or make periodic payments or’,
    in’oaae of ‘refusal,‘maypunish him for oontempt
    (SeatIon 15 of th4 model act and of Article 23288-3
    of the old Texas Act; Section   25 of the new Act).
    It has the duty to transmit to the initiating:
    court any payments it received and upon request
    to furnish a certified~atatementof Chose pay-
    m4nts (Se&ion 16 of the model act and of Article
    2328b-3 of the old Texas Aot; Seotion 26 of the
    new Act). The InltIat       court must receive and
    “$ 3eotion 17 of the model
    disburse these payments
    aot and of Artiale 2328b- of the old Texas Act;
    Section 27 of the n&f Act3 .
    “This simple two-state pr&edure can bc
    carried out with a mInfmum of expense to the
    family or the state - the usual court costs and
    postage for th4 transmissionof papers and
    money. Yet it preserves dtie~FOCQB~, for each
    party pleads In his own court. Provisions
    covering other detaila of procedure have been
    kept out of the Act (lothat the usual rulas
    f’orobtaining jurisdictionfor carrying on the
    procedure and for appeals may~be held to govern.”
    The CommiaaloneratConferenceon Uniform State Lawn
    and the Amerioan Bar Associationadoptad’amendmentsto the
    mod41 Uniform Act In 1952. We do not think ft necessary to
    refer to such amendments In this opinion although they might
    be useful in throwing,light on other problems which might
    arise under the new T&xas act.
    To summarizebriefly: the oonditfonsdesigned to be
    dealt with, the good intended to be ~aooomplishedand the
    ~miaohlefsought to be prevented or remedied by IaWn baaed
    ~‘oloaelyon the model act - were an follows:
    ~!Che
    model aot was designed to provide an
    economicalm4ans for enf’orcingsupport orders
    -2897-
    “Hon. Doug Crouoh, page 6 (C-599).”
    against deserting huebanda or husbands who
    orossed etate,linesleavlng,destitutefamillee
    behind them. No change under the model act was
    Intended with regard to husbands or ex-huabands
    rsmaining in the atate.
    The old act followed olosely the 1950 Model Uniform
    Act   in the above respeots.
    When the trial court in the Freeland Case, aupra, was
    presented with a petition for enforcementunder the old act
    against an ex-husbandwho remained within the State of Texas
    by a plaintiff who had crossed state lines, the Court of
    Civil Appeals was faced with a situation unprovided for under
    the Act and wan required to determine to,what extent, If any,
    the Act was applicable.
    On the one hand, It wa8 clear that the old act pur-
    ported to make no ohange in internal state law - th& one
    Texas oourt was without any authority to punish contem ts of
    another Texas cour0. Attorney ffeneral’s Opinion WW-78t
    (1960) and authority referred to therein, a8 heretofore oited.
    On the other hand, plaintiff was certainly In a pre-
    dioament analogous to that which the Aot was primarily
    designed to deal with insofar a8 the enforcementproblems
    presented.
    A curative or remedial statute Is generally to be
    given the moat comprehensiveand liberal~constructfonposei-
    ble, and certainly should not be given a narrow technical
    oons,truotIon that would defeat the very purpose for which the
    statute wau enacted.
    150 Tax. 18; .237,S.Y.
    The aourt resolved the question of the applicability
    of the Act by allowing the plaintiff to 6ue with the aid of
    the economical procedures provided by the Act, at the same
    time leaving in effect Internal state law by restrioting
    jurisdictionto act on the plalntiff’apetition to the Texas
    court entering the support order.
    The old act oontained substantiallyidentical lan-
    guage with regard to suits for enforcementof support orders
    under the out-of-statepetitions as does the new act. (Par-
    allel oltations 44t1 forth, aupra.) Freeland held that the
    plaintiff waa limited to enforcementby the court entering
    the orIgina order In spite of such language. However, the
    new act, unlike the old act, fs olearly to be given Intrabtate
    -2898-
    “Hon. Doug Crouch, page 7 (C+gg).”
    erreot. Section 31 o’fthe new act,‘ArtIcle2328b-4, Vernon’s
    Civil Statutes, provides In part:
    “This Act is applioable,whenbbth th4 Plain-
    tiff and the Defendant ar4 In this State but in
    differ4nt judicial districts.”
    While the plaintiff lmthe Instant caee does not reside
    within thr State and thu? Section 31, Article 2328b-4, cannot
    give th4 Tarrant County Court juriadiotionover her petition,
    there is nothing In the new aot which would pr4veat the p4tI-
    tion from being treated simply ae any oth4r petition under the
    .'ww act ,froman out-of-stateplaIntITf’(wlthout    regard to any
    pe4eum4d dIst1LnotI~p~ arising from her having reoeived her di-
    voroe and the support order ancillary ther4to within the State
    of Texas). Such a treatment is consistent with policy of the
    Legislatureunder the n4w act.
    W4 ar4 well aware of the rule of oonstruotfon of sta-
    tutes  whioh provides that wher4 an Act of the L4gIslatur4has
    been oonstrued by t~hecot&s aad such act Is rs-enaqted by the
    Legislature In similar languagr, without substantialor mater-
    ial ohmgs,   It Is pr4sumed that the Leglslature,waeaware of
    such interpretationand Intended that It should be applied to
    the new Aot. On the other hand, where such prior Act has been
    pa-enacted bs the La~islature with substantialand material
    ohangas theri $8 no &oh presumption. Belllng4r v. Schutte,
    
    244 S.W.2d 261
    , 263 (Tex.Civ.App.1951).
    Th4rs  Is In our opinion substantialdiffercmcebetween
    an act which is only intended  to be operable wh4n one of the
    parties is outsida the Stat4 and an act providing for lntra-
    state opkrationby its clear ‘terms. Obviously, a court could
    not oonstrue an aot ae having Intrastateopsratioabefore the
    Laglalature eo provided.
    Under the old aat, had the Freeland decision been
    otherwise, a plaintiff could have received more flexible en-
    fora4ment of support through moving outside of the Stat4 of
    Texas than wan then provided to Texas plaintiffe. Conversely
    the applicationof the Freeland holding under the new aot
    would deprive a plaintiff under these facts of the~rlghtsnow
    given to Texan plaintiffs.
    It would be highly f’riviloueto attribute $0 the Legis-
    latura the purpose of makIAg an etiorcementprooedure‘unavailable
    in all oases wherd a plaintirr moves out-of-stat4after receiving
    a support order ancillary to a Texas divorce, while at the same
    b    making suoh prooedure available~iaall other instances.
    -2899-
    “Hon. Doug Crouch, pag4 8 (C-599)."
    We.can find no basis for making the plaintiffs and the
    defendarits,under these cfroumafanoee,members of a apecial
    alas4 to be d4nied the oonv4nIanoesnow provided to all other
    plaintiffs and defendants under the new Act,
    Both the plalntfffs and the defendants who have had
    no prior connectionwith the State with regard to aupport
    order8 i and also those plaintiffs and defendants divorced
    by a Texas court with a support order Issued ancillary to
    such divoroe (In Inbtanoas wh4r4 the plaintiff continues to
    reside wL%hin th4 State) ar4 provided undar the new aat with
    a procedura wh4reby the support order may be conveniently
    enforord in dof4ndant’s home county.
    The oonwnienoe of b4ing sued In one’s home county
    Is oonslder6d of auffloient lmportanoeunder Texas law that
    a drfendant can, 4xoept in the oanen outlined in Artiolc
    1995, Vernonfs Civil Statutes, have venue placed therein as
    a mettar of right. While under the n4w Act, def4ndant could
    not have venue transferredfrom the Texas court originally
    ent4&ng thr support’ord4rto his home county - If suoh
    transfer of the aotion oocure, it Is not realistic to assume
    the% hr is pyejudiced Cher4by. Such aould be argued under
    the old act 
    $.nthe,Freelandoaae, supra
    . at page 946:
    “Appellant In ttis oase might well find
    hIms4lf hopelessly impaled on the horns of
    dllemm4 If the order of ths Dallas Court 18
    ermltted:to stand. If he were to pay the
    P 25 per week to tha.Colleotor of Child Support
    of Tarrant County, as ordered by the’Tarrant
    County Court ha oould be held in contempt
    by the Dallas Count for his failure to obey
    Its order to make the payments to the Juvenile
    Court of Dallas County. On tha other hand, If
    hc wer4 to make the paymentu to the Juvenile
    Court of Dallas County, he oou3.dbe held In
    oontempt by the Court In TarraiatCounty for
    disobeying its order.’
    The dilemma projected In Frealand is not a possibility
    under the new aot, Section 29 (applicableto intrastate enforce-
    ment of patitions through SeotIon 31) provides In part:
    n
    .the amount4 for a D4rtlaular p,erlod
    paid p&&ant to either order shall be credited
    against . . ‘.both.” (Emphasla supplied)
    The Texas oourt entering a support order orlgInal;y
    "Hon. Doug Crouch, page.9 (C-599).".
    retains jurisdictionto enforce the order under Texas law, 1':
    but, as a practical matter, it has no compelling interest,
    ln enforcing the order after both the obligeea and the'obli-
    gor have physically left its jurisdictionalboundaries. The
    burden of non-support then falls elsewhere. Thus, the new
    act allows Its order to be enforced elaewhere within the State.
    You are advised that a restriction against Intrastate
    enforcementof a Texas Support order under the submItted facts
    la lnconalstentwith the policy otherwise set forth under the
    new act. The petition which you have reoeived should be pro-
    cessed for enforcementas any other petition for aupport'pre-
    sented to your office by a plaintiff through an out-of-atate
    court under the new Texan Uniform Reciprocal Enforcement of
    Support Act.
    A petItIon for enforcementof a support
    order under the new Texas Uniform Reciprocal
    Enforcement of Support Act from an out-of-
    state plaintiff originally receiving the aup-
    port order, ancillary to a Texas divorce de-
    cree, should be treated the same as a petition
    received under the Act from an out-of-state
    plaintiff. There la no exception within Artl-
    cle 2328b-4, V.C.S., to the general rule that
    an action th+reundermay be enforced against
    a defendant by any Texas district court that
    may locate defendant or his property within'
    Its juriadiotlonalboundaries. There la no
    reason for a court to wlah to engraft such an
    exceotion on Article 2328b-4 as was engrafted
    In the case of Freeland vi Freelana on-the
    repealed Articles~2326b 1 232t)b-2,2328b-3,
    V.C.S.. Under the repekd Artiolea, a Texas
    plaintiff oould have her support order'en-
    foroed only by the Texas court entering the
    order. This Is not true under Article 2328b-4.
    Yours very truly;
    WAGGOWERCARR
    Attorney Qeneral of Texas
    Attorney Gsneral
    -2901-
    .   .
    "lion.Doug Crowh, page 10 (C,ggg)."
    .
    LCrcm
    APPRm:
    OPINION COMIUTTEE
    w. v, Qsppert, Cbaltraun
    John Banks
    John Moves
    Robert Owen
    Douglas Chllton
    APPROVED FOR ~!&aATTORNE? cmNBRA&
    By2 T. B. Wright
    -2902-
    

Document Info

Docket Number: C-599

Judges: Waggoner Carr

Filed Date: 7/2/1966

Precedential Status: Precedential

Modified Date: 2/18/2017