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.*

--------------------------------------------------------------------------------

[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.



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