Cap on Child Support is Going Up

Whether you are an attorney, a parent receiving child support, or a parent paying child support, you want to know that starting September 1, 2013, it is very likely that the cap on net monthly income used to calculate child support will rise from $7,500.00 to $8,550.00.

That means for one child, an obligor who ‘caps out’  would see his child support rise from $1,500.00 to $1,710.00 per month.  That is a difference of $210.00 per month, $2,520.00 per year, and if a child was just born, an increase over the 18 years (at least) of child support owed of $45,360.00.

For obligors, it might be time to do a little additional financial planning – especially since that cap will likely rise again during the course of that child’s life.

For obligee’s, consider contacting the obligor and seeing if they would agree to forgo litigation and agree to the increase with an Agreed Order.  That saves you both the time and money of going to Court.

HEALTH REIMBURSEMENT: DON’T FORGET TO SUBMIT YOUR RECEIPTS!

This is a guest post from Attorney Kevin Segler, also at Holmes, Diggs & Eames.  Thank you, Kevin, for the article!

THE ISSUE:

If the party who incurs an unreimbursed health care expense for a child fails to submit the bill/receipt to the other party for reimbursement within the time period specified in the order, is the other party still required to reimburse for those health care expenses for which they received untimely notice?

HYPOTHETICAL SCENARIO:

Mother and Father have one child and their Order in Suit Affecting the Parent-Child Relationship contains standard language regarding payment of unreimbursed health care expenses. The Order provides that “each party must pay 50 percent of the unreimbursed health care expenses. The party who incurs a health care expense on behalf of a child must submit to the other party all forms, receipts, bills, statements, and explanations of benefits reflecting the uninsured portion of the health care expenses within thirty (30) days after he or she receives them.”

The child is 15 at the time of the order. Five years later, Mother sends Father various bills and receipts for the child’s health care expenses she incurred when the child was 16. Father does not pay. A year after sending Father the bills, Mother files a Motion for Enforcement for a cumulative money judgment based on Father’s nonpayment of his 50% of the unreimbursed health care expenses for the child. Is Father still obligated to pay his 50% even though Mother did not submit the bills and receipts to him within 30 days after she received them?

Short Answer: It seems to be in the discretion of the trial court judge whether Father is obligated to pay.

THE STATUTE:

The Texas Family Code §154.183(c)(1)-(2) states:

(c) As additional child support, the court shall allocate between the parties, according to their circumstances:

  1. The reasonable and necessary health care expenses, including vision and dental expenses, of the child that are not reimbursed by health insurance or are not otherwise covered by the amount of cash medical support ordered under Section 154.182(b)(3); and

  2. Amounts paid by either party as deductibles or copayments in obtaining health care services for the child covered under a health insurance policy.”

Remember, obligations under this section are considered child support and are treated the same as periodic child support payments in that the penalties and limitations periods are the same for enforcement purposes.

THE CASE LAW:

While there are no Texas Supreme Court opinions on this issue, several appellate courts have addressed the topic.

In re A.C.B., 302 S.W.3d 560 (Tex.App.—Amarillo 2009, no pet.)

In 2009, the Amarillo Court of Appeals upheld a trial court ruling that allowed reimbursement for bills despite one party missing the deadline to submit receipts. The order in A.C.B. gave the paying party a ten-day window to provide bills/receipts to the other party. Mother testified that she provided one bill to father within the ten-day window required by the order but there were several bills that were not presented by the deadline.

Even though mother failed to provide the majority of the bills and receipts to father within the ten-day notice period provided in the order, the appellate court held that the trial court did not abuse its discretion in awarding mother 50 percent of unreimbursed medical expenses. The court reasoned that even if mother failed to provide copies of the medical bills within the ten-day deadline established by the modification order, each parent is obligated to support his or her child during the child’s minority and is liable to any other person, including the other parent, who provides necessities for that child.

In re L.L., 341 S.W.3d 22 (Tex.App.—San Antonio 2010, no pet.)

However, one year later the San Antonio Court of Appeals reached an opposite result. When the father in L.L. submitted receipts for his child’s oral surgery two months after the deadline specified in the final order, the appellate court determined the trial court’s denial of father’s request for reimbursement for the surgery was not an abuse of discretion because father failed to provide timely notice of the expense as required by the decree.

Father argued that mother was still responsible for reimbursement because she had a duty to support the children regardless of whether he provided notice pursuant to the decree, relying on In re A.C.B. (discussed above). The L.L. court disagreed, noting that because the trial court chose to enforce the notice requirement contained in the decree, the trial court never acted in an arbitrary manner or failed to follow guiding principles.

Herzfeld v. Herzfeld, 05-10-01298-CV, 2012 WL 6061772 (Tex. App.—Dallas Dec. 6, 2012, no. pet. h.) (NOT REPORTED IN S.W.3d (2012))

The Herzfeld court agreed with the San Antonio Court of Appeals in holding a trial court did not abuse its discretion in denying mother’s request for medical expense reimbursement. While there was evidence from mother that the children saw a psychologist, there was no evidence as to the number of appointments nor was there any definitive testimony regarding the amount owed to the doctor.

Mother testified from memory that both of the children saw a psychologist an average of twice a month, presumably every month from the time of the separation until they turned eighteen. She sought $200 per month pre-divorce and $100 a month post-divorce.

However, there was no evidence Wife timely notified Husband of the payments made and no evidence of the dates on which they were made. Furthermore, the trial court found evidence as to an actual amount was “speculative” because there were no records of visits by date or by child. Given the absence of any other proof to corroborate Wife’s testimony regarding the number of children’s visits, when they occurred, or the cost of each visit, the court upheld the trial court’s decision in concluding the amount was speculative.

CONCLUSION

The classic (and often frustrating) response to many legal questions is “it depends.” It appears that answer also applies here. The one consistency in all three of the above cases is each appellate court’s reluctance to overturn the lower court’s ruling. The trial court’s decision hinges on accepting the “each parent is obligated to support his or her child” argument versus the “strict adherence to the deadline” stance. Just to be on the safe side, one should always submit any health care bills or receipts to the other parent before the deadline passes.

Registration of an Out of State Child Support Order FOR ENFORCEMENT

In Texas, this process is outlined in section 159.601-608 of the Texas Family Code. The registration is needed to modify that prior child support order. Warning: this is a complex process and technical, so if you are trying to do this, seek the advice of an attorney.
Registration requires sending the Texas Court:

  1. a letter requesting the foreign order be registered and enforced;
  2. two copies, including one certified copy, of the order to be registered;
    1. (If the original order has been modified, send the original plus all orders modifying to be on the safe side)
  3. a sworn statement by the person requesting registration or a certified statement by the custodian of records showing the amount of any arrears;
  4. the name of the obligor;
  5. the obligor’s address and social security number, and any other source of income (if known);
  6. a description and location of the property of the obligor not exempt from execution; and
  7. the name of the obligee.

TEX. FAM. CODE 159.602(a)

The Texas Court should take and register the order at that point as a foreign order. Then, the registering party typically must send the notice outlined in 159.605, even though the court supposedly should send the notice. The reason is that without the notice, it can be easy to stall the process until proper notice is sent and the opportunity to contest passes.

TEX. FAM. CODE 159.602(b)

Notice means:

  1. Informing the nonregistering party that the order has been registered, the date of registration, and that it may be enforced as any other order issued by Texas;
  2. that a hearing to contest the validity or enforcement of the registered order must be requested within 20 days of the notice;
  3. that failure to timely contest the validity or enforcement results in confirmation of the order and enforcement as well as precludes later contesting it; and
  4. the amount of the arrears.

TEX. FAM. CODE 159.605

Note:

This is a brief overview. If you are planning on doing this, first, always consult with an attorney. Second, read the sections very carefully as this is just a brief overview.

What Would My Texas Child Support Be?

Ever wonder how much you would pay in child support in Texas?  The Texas Office of the Attorney General has on online child support calculator that gets pretty close to figuring out what your child support obligation would be in Texas.  The actual number may vary, but this will give you a good idea -

LINK TO TEXAS CHILD SUPPORT CALCULATOR

How to Change Contractual Alimony

First, make sure the clause you are looking to change is contractual alimony and not spousal support. You can get an idea by looking at my post here.

If it is contractual, read on!

Changing contractual alimony in Texas is not easy. It follows contract law, so typically you need the written agreement of both parties.  You need to look carefully at the terms and conditions of the payments first, and see if there is a built in way to modify or terminate the payments.  If not or the terms do not apply, you are going to need to talk to the ex-spouse.

Why would an ex-spouse agree to change the spousal payments?  Sometimes out of the goodness of their hearts… or perhaps you offer them something of value – some ideas:

  1. More money over a longer period of time so that the payments are smaller;
  2. Less money but in a lump sum payment;
  3. Other property can be used as well; or
  4. An offer to pay off debts incurred jointly or by the other party during the marriage.

We have also seen other consideration given, like the addition/modification of a geographic residency requirement or exchange points.  In the end, the deal is up to the parties, with very few exceptions.

Another method would be to attack it as you would a contract.  This is much more involved, and more difficult.

If you have a question or want advise about a particular situation, email or call – we can help!

Discovery Pleadings – An Overview

Too often, the first time someone learns about a discovery tool is when they have to respond.  I thought I would list some of the more common tools and a brief explanation.  This is by no means exhaustive, but I hope it helps!

Requests for Disclosures
This is the one discovery request that cannot be objected to and provides basic information like potential witnesses, any experts, general legal theories and factual basis for them.  Texas Rule of Civil Procedure (TRCP) 194.

Requests for Admissions
These are a lists of questions that can only be answered as admitted, denied, or in limited circumstances, explaining the reason that the responding party cannot admit or deny the question. Some attorneys use these to set the evidentiary foundations of documents or see what facts are really at issue. TRCP 198.

Requests for Production and Inspection
This pleading is used to get documents, videos, recordings or other pieces of tangible evidence.  TRCP 196.

Written Interrogatories
These are a very limited number of questions a party must respond to. Be careful with these. One you reach the limit (25 normally) the other party does not have to answer any more.  TRCP 197.

Depositions
Formal question and answer sessions where your attorney asks questions of the other party or the other party’s attorney asks questions of you. Very useful, but expensive, and you get a limited number of hours.  Most attorneys like other discovery to be done first so they can ask questions to fill in the gaps and solidify their side of the case.  TRCP 199.

Standard Possession Order for 2013

Since we started a new year, I thought the most useful thing to do was post a link to a standard visitation calendar for 2013.

Click OAG’s 2013 SPO Calendar

Of course, the above calendar won’t take into account all of the summer visitation or school holidays – you will have to spend some time doing that.  Here is a good website to help.

Last, click here for a more in-depth discussion of the Texas Standard Possession Order.

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