Untitled Texas Attorney General Opinion ( 1960 )

TEE A``RNEY GENERAL
OF TEXAS
Mr. John H. Winters Opinion NO. W-784
Commissioner
Department of Public Welfare Re: Questions arising under
Tribune Building the Uniform Reciprocal
Austin 14, Texas Enforcement of Support
Act (Art. 2328b, Vernon's
Dear Mr. Winters: Civil Statutes).
You have requested our opinion with regard to cer-
tain problems arising under the Uniform Reciprocal Enforcement
of Support Act (Articles 2328b-1, 2828b-2, 232813-8,Vernon's
Civil Statutes).
The questions you ask are as follows:
Question No. 1.
"The question comes up, for example, in rela-
tion to the Laws of the State of California and the
State of Indiana which In some circumstances require
the father of a child born out of wedlock to contrib-
ute to the support of the said child, while there is
no such requirement in the State of Texas; therefore,
if a Certificate of a Court of competent jurisdiction
in California or Indiana is forwarded to a Court In
the State of Texas based upon a Petition stating that
a child is illegitimate and forwarded to a County in
this State for enforcement against a Respondent re-
siding in said County in Texas, must the juvenile Court
of the Texas County enter an order for support against
the Respondent?"
Question No. 2.
"Therefore, where a Petitioner who was divorced
in a Texas County, now resides In Connecticut and for-
wards an action under the Uniform Support Act for
enforcement against a Respondent resldlng In the Texas
County, does the existing child support order take
precedent over the Reciprocal Support Action?"
Question No. 3.
"Further, must the Responding Court in the Texas
County, dismiss the Reciprocal Support case since the
original divorce court has not surrendered jurisdiction
Mr. John H. Winters, page 2 (WW-784)
as to support questions if the obliger is a
resident of any county in Texas?"
Your request goes into a rather detailed discussion
313 S.W.2d 943 (Tex.Clv.App. 1958,
te of California, Deoartment of Mental
Hygiene v. Conus, Tex.-, 309 S.W.2d 227 (1958) and con-
cludes that the holdings in these cases are determinative of
the answers to your questions and that these holdings neces-
sarily thwart the Uniform Reciprocal Enforcement of Support
Act,
In the case of Freeland v. Freeland, sunra, the Dal-
las Court of Civil Appeals had before it a case which was
brought under the Uniform Reciprocal Enforcement of Support
Act and was predicated upon the following facts: The Freelands
were divorced by a Tarrant County District Court, and the de-
cree awarded custody of the children to the mother and ordered
the father to make monthly child support payments to the Col-
lector of Child Support of Tarrant County. The mother and
children later moved to and became residents of Indiana, where,
upon the failure of the father to make the child support pay-
ments, a petition was filed in an Indiana Court in accordance
with and pursuant to the Uniform Reciprocal Enforcement of
Support Act. During the interim after the divorce the father
had moved to Dallas County, and the Indiana Court forwarded
the petition and certificate to a Dallas County District Court.
Thereafter the Dallas County District Court ordered the father
to make monthly child support payments to the Dallas County
Juvenile Court, such payments to be credited against the amount
due under the Tarrant County District Court order.
As the situation stood at this point, the father was
faced with a contempt charge in the Dallas County District
Court if he obeyed the Tarrant County District Court order and
was amenable to a similar action in the Tarrant County Dis-
trict Court if he obeyed the Dallas County District Court
order.
At page 945 of the opinion the Court made the fol-
lowing statement:
"Since appellant so far as the records show
has continued to reside in the State of Texas we
believe that the laws of Texas as Responding State
are to be aonlied in this case. State of California
V. COPUS, c&A., 309 S.W.2d 227; Rosenberg v. Rosen-
berg, 152 Me. 161, 125 A.2d 863; Daly v. Daly, 21
N.J. 599, 123 A.2d 3."
- .
Mr. John H. Winters, page 3 (WW-784)
The Court of Civil Appeals then proceeded to set
aside the order of the Dallas County District Court, holding
that the Tarrant County District Court, as the Court enter-
ing the original divorce decree and support order, was the
only Court with jurisdiction to amend, modify or change the
;;;P;$eo;;e;& T:;;zTi y-$1;;; ';;j ;';' 2d
731 (Tex.Civ.App. 1942: no writ history). The C&rt of'C!ivil
Appeals further stated that the only method for enforcing
child support orders is a civil contempt proceeding. Citing:
Burper v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957);
Guercia v. Guercia, 239 S.W.2d 169 (Tex.Civ.App. 1951, ref.
r2.r.e.
).
In order to understand the holding in the Freeland
case and the effect of the quotation from page 945 of the
opinion upon the Uniform Reciprocal Enforcement of Support
Act, we feel that it is necessary to point out several
salient points of Texas law regarding the duty of support and
the enforcement of support orders prior to the adoption of
the Uniform Act in Texas.
The duty of support is always a question of substan-
tive law, and the Texas courts have long held that the duty
of the father to support his minor children is a continuing
duty even though there is a valid divorce decree awarding the
custody of the children to the mother. Gully v. Gully 111
Tex. 233, 231, S.W. 97, 15 A.L.R. 564 (1921); Freeman G. State,
103 Tex. Crim. 428, 280 S.W. 1069 (1926); Hooks v. Hooks,
139 S.W.2d 305 (Tex.Civ.App. 1940, no writ history).
Although the father's continuing duty of support was
recognized by the courts, no process existed to compel the ful-
f'illmentof this duty by the payment of monthly sums for the
support of minor children. Ex parte Ellis, 37 Tex. Crim.
539, 40 S.W. 275 (1397).
Excluding an action against the father for reimburse-
ment for the value of necessities furnished to his minor
children, the courts of this State consistently held that no
direct civil action for the enforcement of the duty of support
is maintainable unless authorized by the statutes pertaining
to divorce. , 120 Tex. 291, 40 S.W.
2d 46, 75 A.L Taylor, 137 Tex. 505,
155 S.W.2d 3 209 S.W.2d 1012 (Tex.
Civ.App. 1948, no writ history); Echol; v. Echols, 168 S.W.
2d 282 (Tex.Civ.App. 1943, error ref. w.o.m.).
By enactment of Article 4639a of Vernon's Civil
. -
Mr. John H. Winters, page 4 (WW-784)
Statutes, the District Courts of Texas, in conjunction with
a divorce decree, were authorized to enter an order requir-
ing a parent to make monthly payments for the support of
minor children under eighteen (18) sears and to enforce
obedience of such support orders by"civi.1contempt proceed-
ings. Johns v. Johns, 172 S.W.2d 770 (Tex.Civ.App. 1942,
no writ history).
Where a support order has been entered in conjunc-
tion with a divorce decree and the parent who is ordered
thereby to make support payments has defaulted in making such
payments, the on_lyremedy available to enforce the order is a
civil contempt proceeding against the defaulting parent, there
being no other remedy provided by the civil statutes.
order and exclusive jurisdiction to enforce it remains with the
Court that entered the original order, one Gourt being without
authority to punish contempts of another Court.
V.
Gonzalez, 111 Tex, 399, 238 S.W. 635 (1922); Puttmlkner,
214 S.W.2d 831 (Tex.Civ.App. 1948, no writ history); Hunt v.
Be, 193 S.W.2d 970 (Tex.Civ.App. 1946, no writ history);
Johns v. Johns, 172 S.W.2d 770 (Tex.Civ.App. 1943, no writ
history).
The Courts are in complete agreement in stating
that since a support order is of an interlocutory nature, only
the original District Court has jurisdiction to amend, change
Ex parte Goldsmith, 155 Tex. 605, 290 S.W.2d, 502
i)fg``~%xi~arte Roberts 139 Tex. 644, 165 S.W.2d 83 (1942);
Armstr6ng v 695 S.W.2d 542 (Tex.Civ.App. 1956,
no writ his ohns v. Johns, supra.
In light of the foregoing authorities, we can
readily see that the Court in the Freeland case did indeed
reach its results by the application of Texas law, but it
rocedural law relative to the enforcement of a pre-
%smof a Texas Court, not substantive law deter-
minative of the duty of support. In matters of procedure,
the law of the forum governs regardless of whether the action
was brought under the Uniform Reciprocal Enforcement of Sup-
port Act or not.
Therefore, the following statement of the Court at
page 943 of the Freeland case is misleading, for without care-
ful constideration, it will lead one to believe that it refers
Mr. John H. Winters, page 5 (IJW-784)
,
to the application of the substantive law determinative of the
duty of support.
"Since appellant so far as the records show
has continued to reside in the State of Texas we
believe that the laws of Texas as Responding State
are to be applied in this case. State of California
v. Copus, Cal., 309 S.W.2d 227; Rosenberg v. Rosen-
berg, 152 Me. 161, 125 A.2d 863; Daly v. Daly, 21
N.J. 599, 123 A.2d 3."
However, a careful consideration of what the Court
actually did in reaching its decision in the Freeland case
will show that this statement is not authority for the conten-
tion that Texas substantive law is to be applied in determin-
ing the duty of support in a proceeding under the Uniform
Reciprocal Enforcement of Support Act where Texas is acting
as the Responding State. The authorities cited by the Court
as supporting the statement would in no way compel that such
a conclusion be reached. State of California v. Copus, supra,
was not brouaht under the Uniform Recinrocal Enforcement of
Support Act and involved an entirely different question.
Both Rosenberg v. Rosenberg,,supra and Daly v. Daly, sunra,
did involve the Uniform Reciprocal Enforcement of Support Act
and do hold that the substantive law of the forum determines
the duty of support, but both Maine and New Jersey have amended
Section 7 of their Act so that the law of the Responding State
is the only law that can ever apply. As amended it reads:
"Duties of support applicable under this law
are those imposed or imposable under the laws of
any state where the obliger was present during the
period for which support is sought. The obligor
is presumed to have been present in the responding
state during the period for which support is sought
until otherwise shown."
Section 7 of the Texas Act is not so restrictive.
Let us again emphasize that the Conus case, sunra,
as the Court points out, was not an action brought under the
Uniform Reciprocal Enforcement of Support Act. It was an
action wherein the State of California sought reimbursement
from Copus for money expended for the support and maintenance
of his mother, pursuant to a California statute which imposed
liability upon an adult child for the maintenance of the parent
in a State institution; Copus was a resident of California at
the time his mother entered the California institution, but
sometime later he moved to and became a resident of the State
of Texas. The Supreme Court of Texas allowed reimbursement to
Mr. John H. Winters, page 6 (WW-784)
the State of California for support and maintenance which
accrued prior to Copus' departure from the State of
California, but declined to give extra-territorial effect
to a statute of a sister state by allowing it to impose li-
ability, solely of itself, after the time Copus left
California and became a Texas resident. Therefore, the
statement by the Court that Texas law would be applied to
determine the liability of Copus after he came to Texas
would not be authoritative in a case involving the Uniform
Reciprocal Enforcement of Support Act.
Had the Copus case, supra, been initiated under and
forwarded pursuant to the provisions of the Uniform Reciprocal
Enforcement of Support Act, Section 7 of Article 2328b-3 would
have required the Court to allow reimbursement for the support
of the mother even after Copus became a citizen of Texas. Sec-
tion 7 of Article 2328b-3 allows the obligee to choose the
substantive law that is to be determinative of the duty of
support. Section 7 of Article 2328b-3 reads as follows:
"Duties of support enforceable under this
law are those imposed or imposable under the laws
of any state where the alleged obliger was present
during the period for which support is sought or
where the obligee was present when the failure to
support commenced, at the election of the obligee,
but shall not include alimony for a former wife."
(Rmphasis ours).
This language makes it clear that had the Uniform
Reciprocal Enforcement of Support Act been complied with,
the Texas Court would have been compelled to look to the law
of California and recognize and enforce the duty of support
"imposed or imposable" under the California statute, if that
was what the obllgee elected.
Passing now to the consideration of your first
question, we note that you make reference to the "Juvenile
Court" as having jurisdiction of support proceedings, conse-
quently, we will first state that you are mistaken as to the
Court having jurisdiction of proceedings under the Uniform
Reciprocal Enforcement of Support Act. Section 9 of Article
2328b-3, Vernon's Texas Civil Statutes, vests jurisdiction In
the District Court:
"All duties of support are enforceable by
oetition irresnective of relationshin between the
obllgor and obilgee. Jurisdiction of all proceed-
ings hereunder shall be vested in the district
court." (Emphasis ours).
Mr. John H. Winters, page 7 (W-784)
As we have hereinabove pointed out in discussing
the Coous case, Secion 7 of'Article 2328b-3 allows the
obligee to request that the duty of support to be imposed
by the Responding State be that duty imposed or imposable
"where the obligee was present when the failure to support
commenced".
Therefore, upon proper petition and certification to
a Texas District Court that the Defendant is the father of an
illegitimate child and that under the laws of the Initiating
State said Defendant owes a duty of support by reason of the
presence of the obligee in the Initiating State when the fail-
ure to support commenced, the.Texas District Court, as th
Responding State, must enter an order of support even thozgh
Texas law imposes no duty of support upon the father of an
illegitimate child. Consequently, your first question is
answered in the affirmative.
Before answering your second question, we feel that
the facts presented therein require some comment by way of
clarifying the basis for our answer.
We must assume that the "Reciprocal Support Action"
referred to In your second question was forwarded to a District
Court in Texas other than the District Court which entered the
original divorce decree and support order, Otherwise, there
would be no question of conflict of jurisdiction or'precedence
since a request in a "Reciprocal Support Action" that a Texas
District Court enforce its own support order would be inper-
feet accord with authorities we have set forth above.
Since the Texas District Court to which the "Re-
ciprocal Support Action" was forwarded did not enter the
original divorce decree and support order, it has no authority
to change the order; It has no authority to enforce the origi-
nal order by contempt proceedings; and it has no authority to
enter a new order of support of it,s,,own.Tt&p is prec;lpely
the situation which existed in Freeland G'.Free&and,
and since, in our opinion, this case reaches the righw
suit we hold that the existing order takes precedence over
the 'Reciprocal Support Action' and we therefore, answer your
second question in the affirmative,
Your third question is phrased in such a manner as
would have us predicate our answer upon the residence of the
obligor or defendant. On the contrary, the residence of the
oblfgor or defendant Is of no consequencei As long as the
defendant resides within the boundaries of the State of Texas,
a District Court can hold him in contempt of its own order,
. .- -
Mr. John H. Winters, page 8 (W-784)
for the jurisdiction of our District Courts coincides with
the .Stateboundaries. However, assuming, as we did in answer-
ing your second question, that the "Reciprocal Support Action"
was forwarded to a District Court in Texas other than the
District Court which entered the original divorce decree and
support order, then in conformity with our answer to your
second question and for the same reasons stated therein, we
hold that the Responding Court must dismiss the "Reciprocal
Support Action" and consequently, your third question is also
answered In the affirmative.
SUMMARY
------_
In a proceeding under the Uniform Reciprocal
Enforcement of Support Act (Articles 2328b-1,
232813-2,2328b-3, Vernon's Texas Civil Sta-
tutes), Texas, when acting as the Responding
State, must recognize and enforce the duty of
a father to support his illegitimate children
where such duty is imposed or imposable under
the laws of the Initiating State; where one
Texas District Court has entered a divorce
decree and support order, no other Texas
District Court has the authority to alter or
enforce such support order and even though it
may be acting as the Responding Court under the
Uniform Reciprocal Enforcement of Support Act,
it 'must dismiss the action seeking to enforce
the existing support order.
Yours very truly,
WILL WILSON
Assistant
WOS:mg
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Henry G. Braswell
Marvin H. Brown, Jr,
Thomas Burrus
John C. Steinberger
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore