In Interest of RCT, LJT, CLT (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Frost) (child
support lien by operation of law, definition of arrearage, federal tax intercept)
AFFIRMED AS MODIFIED: Opinion by Justice Frost
Before Justices Anderson, Hudson and Frost
14-07-00642-CV In the Interest of R.C.T., L.J.T., C.L.T.
Appeal from 311th District Court of Harris County
Trial Court Judge: Douglas C. Warne
O P I N I O N
The Office of the Attorney General of Texas (Attorney General”) appeals the trial court’
s order requiring it to (1) vacate and remove a child support lien the Attorney General
perfected under a Texas lien statute against an award of retroactive child-support; and (2)
return a federal income-tax refund intercepted from the Internal Revenue Service under 42
U.S.C. ' 664(a). We hold that the retroactive support was an amount due and owing under
the Texas child-support-lien statute. This retroactive support, however, was not past-
due support as that term is defined under the federal income-tax-refund-intercept
statute. We thus modify the trial court’s judgment to delete the parts ordering the lien
removed and affirm the trial court’s order as modified.
I. Factual and Procedural Background
Lynn D. Torres and appellee John A. Torres divorced in September 2000. The trial court
appointed Lynn as sole managing conservator and John as possessory conservator of their
three minor children, R.C.T., L.J.T., and C.L.T. The trial court also ordered John to pay
$828 per month in child support.
Almost four and a half years later, the Attorney General filed a proceeding to modify the
child-support order. The Attorney General sought an upward modification of the child
support and requested that the modification take effect retroactively upon the earlier of the
date of service of citation on John or John’s appearance in the suit to modify, as permitted
by section 156.401 of the Texas Family Code.
The trial court signed an agreed order in September 2006. In the order the court found that,
as of April 2005, John should have been paying child support of $1,340 per month rather
than $828 per month. The trial court also found that, as of January 2006, John should have
been paying $1,380 per month. Thus, the trial court calculated the amount of back or
retroactive child support owed by John to be $9,024. The agreed order provided that John
could pay the retroactive amount in monthly installments of $150 until “the entire retroactive
arrearage amount” is paid in full. Both Lynn and John agreed to the terms of the order. The
Attorney General approved the agreed order as to form, but did not agree to the substance
of the order.
The Attorney General then filed a child-support lien with the Harris County District Clerk for
the amount of unpaid retroactive support. The Attorney General also notified the United
States Department of Treasury that John owed past-due support in an amount exceeding
$500. The Department of Treasury then informed John that his income tax refund in the
amount of $3,839 would be intercepted and paid to the Attorney General as part of the debt
John owed.
John filed a motion to vacate the lien. John alleged that the lien was invalid inasmuch as
the parties had agreed that the retroactive child support could be paid in monthly installment
payments and John was current on the installments. After a hearing, the trial court granted
the motion to vacate the lien. Although the agreed order identified the $9,024 owed by
John as a “retroactive arrearage amount,” the trial court found that “the retroactive child
support in the [agreed order] is not child support arrearages [sic].” At the hearing on the
motion to vacate, the trial court reasoned that the retroactive amount could not be
considered an arrearage or delinquency because John had not failed to comply with the
payout schedule. The trial court further opined that allowing the Attorney General to enforce
a lien on the retroactive child support would discourage parties from entering agreed
orders. The trial court thus ordered the Attorney General to remove the lien and to disperse
to John the $3,839 tax refund that the Internal Revenue Service had sent to the Attorney
General. The Attorney General now challenges the trial court’s order.
II. Issues Presented
The Attorney General raises the following issues on appeal:
1. Is unpaid retroactive child support an amount that is “due and owing,” thus creating a
child-support lien, when the obligor is current in making court-ordered monthly payments on
the retroactive support?
2. Is retroactive child support “past-due support” as defined by federal law that may be
collected by offsetting a federal income-tax refund?
III. Standards of Review
Our decision as to the propriety of the trial court’s order turns on the meaning of state and
federal statutory language. We review issues of statutory construction de novo. See
Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002); In re
Smith, 260 S.W.3d 568, 572 (Tex. App.- Houston [14th Dist.] 2008, orig. proceeding). In
construing a statute, our objective is to determine and give effect to the legislative intent of
the provision. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). If
possible, we must ascertain that intent from the language the legislature used in the statute
and not look to extraneous matters for an intent the statute does not state. Id. If the
meaning of the statutory language is unambiguous, we adopt the interpretation supported
by the plain meaning of the provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.
W.2d 503, 505 (Tex. 1997); In re Smith, 260 S.W.3d at 572. We must not engage in forced
or strained construction; instead, we must yield to the plain sense of the words the
legislature chose. Id.
IV. Analysis
A. Did the trial court err in concluding that the retroactive support was not “due
and owing” under the Texas child-support lien statute?
Our resolution of the Attorney General’s first issue depends on whether the retroactive child-
support amount awarded in the September 2006 agreed order is an amount “due and
owing” under the Texas child-support-lien statute. John argues the retroactive amount does
not give rise to a lien because he has complied fully with the court’s payout schedule.
Based on the express language of the statute, we conclude that the retroactive amount is
an amount due and owing to Lynn, and thus results in a child-support lien, regardless of
whether John is current on the court-ordered payout schedule.
1. The retroactive child support is due and owing.
Section 157.312(d) of the Texas Family Code provides as follows:
A child support lien arises by operation of law against real and personal property of an
obligor for all amounts of child support due and owing, including any accrued interest,
regardless of whether the amounts have been adjudicated or otherwise determined, subject
to the requirements of this subchapter for perfection of the lien.
Tex. Fam. Code Ann. § 157.312(d) (Vernon Supp. 2008) (emphasis added).
We have located no cases construing the meaning of the words “due and owing” under the
provisions of this statute. In the absence of a statute or controlling case law defining the
terms used in a statute, we apply the ordinary and generally accepted common meaning of
the words used. See Martin v. Harris County Appraisal Dist., 44 S.W.3d 190, 194 (Tex.
App.- Houston [14th Dist.] 2001, pet. denied). The common meaning of the word “due” with
regard to a debt is one that is “immediately enforceable” or is “owing or payable;
constituting a debt.” Black’s Law Dictionary 538 (8th ed. 2004). The word “owing” is
defined as “that is yet to be paid; owed; due.” Id. at 1137.
The retroactive child-support amount of $9,024 awarded in the September 2006 order
meets the common definition of the word “due” because it is an amount that is presently
enforceable. The trial court’s order expressly states that John owes Lynn $9,024 in
retroactive support. This retroactive support represents the amount of child support that
John should have been paying since April 2005 for the support of his children but had not
paid. See Merriam Webster’s Collegiate Dictionary 1065 (11th ed. 2003) (defining
retroactive as “extending in scope or effect to a prior time or to conditions that existed or
originated in the past.”). The retroactive support is an amount of money awarded to Lynn
that she is currently entitled to possess.
The retroactive support also meets the common definition of the word “owing.” Although
John has paid some of the retroactive support pursuant to the monthly-payout schedule, it is
undisputed that the balance of the retroactive amount remains unpaid. The retroactive
support awarded in the September 2006 order is an amount due and owing for purposes of
section 157.312(d).
2. The payout schedule in the agreed order does not alter the meaning of the
statute.
John argues that the retroactive amount awarded in the order cannot be due and owing
under section 157.312(d) because he is in compliance with the payout schedule. We
disagree. The fact that the court allowed John to retire the debt by means of a payout
schedule does not change the “due and owing” nature of the debt. The payout schedule is
simply one way that John is allowed to satisfy his matured and enforceable debt.
In In re Dryden, the Corpus Christi Court of Appeals addressed the issue of permissible
collection efforts in light of a payout schedule. 52 S.W.3d 257, 259B60 (Tex. App.- Corpus
Christi 2001, orig. proceeding). The father owed child-support arrearages totaling over
$90,000, and the trial court ordered the amount to be paid by monthly payments of $400.
Id. at 260. It was undisputed that the father was in compliance with the repayment
obligations. Id. Nevertheless, the mother initiated post-judgment discovery and obtained a
writ of execution to levy on personal property owned by the father. Id. The father moved for
a protective order from the trial court to prevent any collection efforts so long as he was in
compliance with the monthly payout schedule set forth in the original judgment. Id. at
260B61. The trial court granted the motion for protection and the mother sought a writ of
mandamus. Id. at 261.
The Dryden court held that the payout schedule could not prevent execution on the judgment
for arrearage. Id. at 263. The court noted that A[t]he right to collect a money judgment by
execution is inherent in the judgment and does not depend on specific recitals.” Id. The
court further found that the trial court could not preclude the mother from collecting the
judgment simply because the father was in compliance with the payout schedule. See id.
The court explained that the payout schedule merely gave the mother “two permissible
options for collecting the more than $90,000 that [the father] owed her for the support of
their two minor daughters: (1) a $400 monthly payment toward the arrearage until it is fully
paid, and (2) a judgment for the entire amount, which may be collected using all available
post-judgment collection methods.” Id. at 264 (footnotes omitted).
We agree with the Dryden court’s reasoning. The payout schedule simply gave Lynn two
permissible options for collecting the retroactive child support she was entitled to receive
under the order. See id.; see also Attorney General v. Wilson, 878 S.W.2d 690, 691 (Tex.
1994) (per curiam) (concluding trial court erred in issuing order prohibiting Attorney General
from abstracting a judgment for retroactive child support so long as debtor timely made
periodic payments). The existence of a payout schedule does not preclude Lynn (or the
Attorney General) from utilizing all collection efforts available under a judgment, such as a
child-support lien.[1]
3. The debt does not have to be an arrearage to meet the definition of “due and
owing.”
The trial court ordered the Attorney General to release the lien, reasoning that the
retroactive support was not an arrearage or delinquency. But section 157.312(d) does not
require the debt to be an arrearage in order for a lien to arise. In fact, the lien arises by
operation of law for all amounts due and owing, “regardless of whether the amounts have
been adjudicated or otherwise determined.” Tex. Fam. Code Ann. § 157.312(d) (Vernon
Supp. 2008). There is nothing in the Texas statute requiring the debt to be an arrearage to
trigger the attachment of the lien.
Our holding is supported by the legislature’s amendment of section 157.312(d). In 2001,
when the legislature amended section 157.312(d), it changed the statutory language from
“overdue support” to amounts “due and owing.” Compare Tex. Fam. Code Ann. § 157.312
(d) (Vernon Supp. 2008), with Act of May 15, 1997, 75th Leg., R.S., ch. 420, ' 2, 1997 Tex.
Gen. Laws 1660, 1660, and Act of May 21, 1997, 75th Leg., R.S., ch.911, ' 20, 1997 Tex.
Gen. Laws 2864, 2868B69. With this amendment, the legislature broadened the scope of
the child-support lien statute to include all amounts of child support due and owing, and not
merely those amounts that are overdue. An amount of child support does not have to
constitute an arrearage before the lien arises under section 157.312(d).
John cites two cases in which the Texarkana Court of Appeals holds that retroactive child
support is not an arrearage. See In re J.G.Z., 963 S.W.2d 144 (Tex. App.- Texarkana
1998, no pet.); see also In re House, No. 06-99-00155-CV, 2000 WL 1238845 (Tex. App.-
Texarkana Sept. 1, 2000, no pet.) (not designated for publication). Those cases, however,
were not decided under the Texas lien statute and do not address whether a retroactive
support award is an amount “due and owing” for purposes of section 157.312(d). The
cases address whether a retroactive child support award constitutes a money judgment for
an arrearage. In re J.G.Z., 963 S.W.2d at 148; In re House, 2000 WL 1238845, at *2.
Because section 157.312(d) does not require a debt to be an arrearage before a lien can
arise, we find the Texarkana cases inapplicable.
We hold that the trial court erred in granting John’s motion to the extent that the trial court
ordered the child-support lien vacated and ordered the Attorney General to remove all such
liens against John’s property as a result of the order to pay retroactive child support.
Accordingly, we sustain the Attorney General’s first issue.
B. Did the trial court err in concluding that the retroactive support was not a
past-due amount under the federal tax-refund-intercept statute?
In its second issue, the Attorney General argues that, in addition to the lien, it is entitled to
intercept John’s federal income-tax refund because the amount of retroactive child-support
awarded meets the federal tax-refund-intercept statute’s definition of past-due support. We
disagree. The federal statute expressly states that it applies to a “delinquency.” The
language used in the federal statute is not as broad as that used in the Texas lien statute.
Because the retroactive child support owed by John is not a delinquency, we hold that it
does not meet the definition of past-due support.
Under federal law, a state IV-D agency may collect past-due child support through offsets of
federal income-tax refunds. Section 664(a)(2)(A) of the Social Security Act provides in
pertinent part as follows:
Upon receiving notice from a State agency administering a plan approved under this part
that a named individual owes past-due support (as that term is defined for purposes of this
paragraph under subsection (c) of this section) which such State has agreed to collect
under section 654(4)(A)(ii) of this title, and that the State agency has sent notice to such
individual in accordance with paragraph (3)(A), the Secretary of the Treasury shall
determine whether any amounts, as refunds of Federal taxes paid, are payable to such
individual (regardless of whether such individual filed a tax return as a married or unmarried
individual). If the Secretary of the Treasury finds that any such amount is payable, he shall
withhold from such refunds an amount equal to such past-due support, and shall
concurrently send notice to such individual that the withholding has been made . . . .
Social Security Act, 42 U.S.C. ' 664(a)(2)(A) (2007). The term “past-due support” is
defined as follows:
(1) Except as provided in paragraph (2), as used in this part the term “past-due support”
means the amount of a delinquency, determined under a court order, or an order of an
administrative process established under State law, for support and maintenance of a child,
or of a child and the parent with whom the child is living.
(2) For purposes of subsection (a)(2) of this section, the term “past-due support” means
only past-due support owed to or on behalf of a qualified child (or a qualified child and the
parent with whom the child is living if the same support order includes support for the child
and the parent). 42 U.S.C. § 664(c).
The statute does not define the term “delinquency.” The Code of Federal Regulations
describes “past-due support” as “the amount of support determined under a court order . . .
for support and maintenance of a child or of a child and the parent with whom the child is
living, which has not been paid.” 45 C.F.R. §301.1. The Attorney General argues that
reading the statute and the federal regulation together leads to the conclusion that a state
agency may intercept a federal income-tax refund to offset an amount of child support that
has been determined under a court order but not yet paid. We disagree.
Although we have found no Texas cases addressing the definition of “delinquency” under
section 664(c), several other states have held that there must be a failure to comply with a
prior court order to permit interception of a federal income-tax refund. In Davis v. North
Carolina Dep’t of Human Resources, a father was ordered by the trial court to pay a certain
amount each month in ongoing child support plus another amount per month towards the
repayment of arrearage owed for support of the child. 505 S.E.2d 77, 78 (N.C. 1998). At
the time the father received notice of the intercept of his federal income-tax refund, he was
in compliance with the court-ordered support obligations. Id. The Supreme Court of North
Carolina held that, under section 664(c), the state agency could not intercept the tax refund
“until the parent fails to pay currently due court-ordered support or reimbursement
payments. . .” Id. at 79. The court stated that a delinquency is “created by a default in
performance, not merely by the existence of an outstanding debt.” Id. at 79; accord Gladysz
v. King, 658 N.E.2d 309, 312 (Ohio Ct. App. 1995).
Similarly, in Laub v. Zaslavsky, the intermediate appellate court in Pennsylvania addressed
the definition of “delinquency” under section 664(c) under facts nearly identical to those
presented in this case. See 534 A.2d 1090 (Pa. Super. Ct. 1987). In Laub, the non-
custodial parent was ordered at the time of divorce to pay child support for the couple’s two
children. See id. at 1091. Four years later, the custodial parent sought and received an
upward modification of the child-support obligation. Id. The modification was made
retroactive, such that Arrearages in the amount of $11,825 were immediately created.” Id.
The parent was ordered to pay a certain amount each month towards the retroactive
support in addition to current child support. Id. at 1092. The Pennsylvania court held that
the retroactive support did not satisfy the definition of a “delinquency” under section 664(c)
because the parent was in compliance with the court’s repayment order. Id. at 1093. After
examining federal authorities addressing the purpose behind the federal income-tax-
intercept program, the court explained that “the federal intercept program does not
encompass situations where a parent has continually complied with his child support
obligation, but where, nonetheless, arrearages are created as a result of the retroactive
effect of an order of support.” Id.
We agree with the reasoning of the North Carolina and Pennsylvania courts and hold that
the Attorney General may not use the federal intercept program unless the obligor fails to
comply with the trial court’s order of child support, thus creating a delinquency for purposes
of the federal statute.[2]
The Attorney General relies on Mushero v. Ives, 949 F.2d 513 (1st Cir. 1991), as support
for the claim that retroactive support may be considered a delinquency. We do not find
Mushero persuasive. In that case, a father brought a class action alleging that his federal
rights were violated by the state of Maine’s interception of his federal income-tax refund to
satisfy his indebtedness for Aid to Families with Dependent Children (AFDC”). Maine had
paid over $5,000 to the mother in AFDC aid. Id. at 514. Maine then filed a proceeding
against the father to determine the father’s duty to reimburse the state for the AFDC
payments to the mother. Id. The father argued the state was impermissibly seeking
retroactive child support not recoverable under Maine law. Id. at 517. The First Circuit
disagreed, holding that, under Maine law, all parents have a duty to support their children
and retroactive child support was thus available. Id. at 518B19. Because the amount
sought by the state as reimbursement for AFDC payments was an amount the mother
would have been entitled to recover from the father, the court found the father’s federal
rights were not violated. Id. at 519. Though the result in Mushero was that a federal income-
tax refund was properly withheld for repayment of an amount analogous to retroactive child
support, the court did not analyze whether a retroactive child support award satisfied the
definition of “delinquency” under section 664(c).
Moreover, Mushero did not involve a situation in which the father was in compliance with a
previous court order of child support that was retroactively adjusted upward. See id. at
514. The father in Mushero had been voluntarily paying some child support, but not enough
to cover his AFDC debt. Id. Arguably, then, the father had been delinquent in his common
law duty to provide support for his children. See id. at 518 (stating that child support duty
exists whether or not a court or administrative order exists establishing a formal
obligation). Unlike the instant case, Mushero did not involve a father that was in compliance
with an existing court order of support.
We overrule the Attorney General’s second issue and hold that the trial court properly
ordered the Attorney General to return John’s federal income-tax refund.
V. Conclusion
The retroactive child support awarded to Lynn in the September 2006 order is an amount
that is due and owing under section 157.312(d) of the Texas Family Code. It is, thus,
properly subject to the lien perfected by the Attorney General. The retroactive support,
however, does not satisfy the definition of past-due support under the federal income-tax-
refund-intercept statute. Therefore, the trial court did not err in ordering the Attorney
General to return the income-tax refund to John. We modify the trial court’s judgment by
deleting the parts of the judgment ordering the child-support lien vacated and ordering the
Attorney General to vacate and remove all liens attached against John’s property as a
result of the order to pay retroactive child support. As modified, the trial court’s judgment is
affirmed.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Anderson, Frost, and Hudson.*
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[1] We note that the Texas Family Code specifically provides that “the remedies provided by this
subchapter do not affect the availability of other remedies provided by law” and are in addition to
any other lien provided by law. Tex. Fam. Code Ann. § 157.312(b), (c) (Vernon Supp. 2008).
[2] We acknowledge the Laub dissent’s argument that the intercept should be allowed because A[t]
he primary purpose of the federal income tax refund intercept program is not to regulate or punish
the parent’s conduct. Rather, the objective of the program is to ensure that a child who is entitled
to financial support from his parent in fact receives that support.” Laub, 534 A.2d at 1095
(Johnson, J., dissenting). The statute, however, expressly provides that it applies to a
“delinquency.” Thus, we are constrained to hold that, where a court order of child support is in
place and the parent has not failed to comply with that order, a federal income-tax refund may not
be intercepted.
* Senior Justice J. Harvey Hudson sitting by assignment.