Untitled Texas Attorney General Opinion ( 1966 )

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Ch. 67gg p. 1561) repealed Articles.2328b-1,2328b-2 and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forcement of Support Act contained in the repealed Articlea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-