Williams v. Patton

CORNYN, Justice,

concurring.

Although I emphatically agree with the majority opinion, I write separately to stress the sound common law reasons and legislative policies supporting the court’s judgment. Further, I want to express my grave concern with any judicial condonation, which I perceive is implicit in the dissent’s opinion, of an end run around the district court’s fundamental responsibility to protect the best interest of the child in each child support dispute.

The obligation to support one’s child is not, legally or morally, just another creditor-debtor relationship. Nor is it simply a matter to be negotiated between ex-spouses. It is for the benefit of the child, whose right to adequate financial support from both parents is too often overlooked in the hostilities associated with divorce and its aftermath. Unfortunately, approval of the extra-judicial settlement of child support arrearages here, as the dissent would hold, would serve as an incentive for obligors to resist payment of their child support in the hope that they can effectively extort an out-of-court agreement from an obligee left with no real alternative other than to settle for pennies on the dollar. Ms. Patton, having borne the financial obligations of parenthood alone while Mr. Williams accrued child support arrearages of $9,885, can only be described as doing so under economic duress. Presuming, as we must, that the original child support order was appropriate and that Mr. Williams was able to make periodic payments for child support at the time they were ordered, it is nevertheless no surprise that after eight years of non-payment, he is unable to pay the arrearages in a lump sum. The logical consequence of the dissent’s opinion would be a reward for Mr. Williams' contemptible behavior. Thus he, and others like him, would actually have a financial disincentive to pay periodic support. Indeed, strictly on financial grounds, why would an obli-gor pay child support as ordered by the court when he could settle eight years later for a fraction of the amount? Our *149 state’s — indeed, our nation’s — public policy demands the timely payment in full of all court-ordered child support. The responsibility to see that policy realized falls unmistakably on the judiciary.

By treating the child support obligation as just another commercial obligation, the dissent overlooks the historically unique legal, societal, and moral nature of the parental support obligation. The failure of too many parents to meet their child support obligations has appropriately been called a national disgrace. See, e.g., Woods, Child Support: A National Disgrace, Special Child Support Issue, PAM. L.SEC.REP. (1984). The number of children living in single parent homes in this country has exploded over recent years. In 1970, 11.9 percent of the 69.2 million children in this nation lived in households headed by single parents. In 1988, that number rose to 25 percent of 61.3 million children, even though all but 1 million had two living parents. 1 In 1989, this state’s population included 1,147,000 children between 0 and 17 years of age entitled to support payments. Only 24.3 percent of these children received regular child support payments in full; in other words, 75.7 percent of these children received either no child support, or less than that to which they were entitled under a court order. See TEXAS DEPARTMENT OF HUMAN SERVICES, 1989 SPECIAL TEXAS CENSUS. But for the common knowledge of the enormity of the child support crisis, the lack of compliance with court ordered child support would be in the headlines of every newspaper in this country.

This court has long recognized the “natural and legal duty” of both parents to support their children during minority. Gully v. Gully, 111 Tex. 233 , 231 S.W. 97, 98 (Tex.1921). 2 Blackstone first articulated the child support obligation as a principle of natural law. 3 The origins of the common law duly of support can be traced to Chancellor Kent, who conceived what later came to be known as the American rule providing that a parent is absolutely bound to provide support and can thus be sued for the provision of necessaries. 4

The authority — indeed, the duty — of the courts to supervise the enforcement of the child support obligation cannot be seriously questioned. This common law heritage can be traced to the power of the sovereign to protect those under legal disability, such as minor children. The state's interest in this area is often referred to as parens patriae, which literally means “parent of the country” and refers to the power of the state to serve as guardians over persons with a legal disability, such as minors or incompetents. West Virginia v. Chas. Phizer & Co., 440 F.2d 1079 , 1089 (2d Cir.1971), cert. denied, 404 U.S. 871 , 92 S.Ct. 81 , 30 L.Ed.2d 115 (1971); see also Mnookin & Komhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 954r-55 (1979). Early English historians noted “that the king should protect all who have no other protector, that he is the guardian above all guardians, is an idea which has become exceptionally prominent in this much governed country.” 5 This power was soon delegated to the Court of Chancery, which became responsible for appointing guardians, providing adequate maintenance, and awarding custody. “For the lord chancellor is, by right derived from the crown, the general and supreme guardi *150 an of all infants....” 6 When we adopted the common, law of England and abolished the English division between law and equity courts in this state, the obligations of the chancellor devolved on the Texas judiciary. In fact, in 1950 this court first promulgated a rule of civil procedure to enable and encourage the district courts to initiate enforcement proceedings when it learns that its child support orders have not been complied with. See TEX.R.CIV.P. 308. Indeed, a recent joint project of the National Center for State Courts, and the Bureau of Justice Assistance, United States Department of Justice, emphasizes the trial court's responsibility for the enforcement of its own orders. Significantly, the report cites child support orders as one example. NATIONAL CENTER FOR STATE COURTS & THE BUREAU OF JUSTICE ASSISTANCE, UNITED STATES DEPT. OF JUSTICE, TRIAL COURT PERFORMANCE STANDARDS, Standard 3.5 (1990). Failing to enforce lawful court orders undermines the rule of law, and diminishes the public’s trust and confidence in the courts. Id.

However, it was not until the legislature became involved in imposing child support obligations that the notion of legal duty became firmly entrenched. 7 At first, matters of child support were dealt with under the state’s divorce laws. Most often the issue of support was only considered as relevant in determining how the community estate was to be divided. For example, the Texas statute, enacted in 1841, stated that “the court pronouncing a decree of divorce ... shall also decree and order a division of the estate of the parties in such way as to them shall seem just and right, having due regard to the rights of each party and their children_” 8 Thus the property settle-

ment resulting from the divorce was considered to provide for the future needs of the children. Periodic payments were not an option at the time because the courts were deemed to have no power to order such payments without the obligor’s consent. 9 The change in focus to the best interest of the child came about only as society came to realize that the welfare of the child should be the paramount consideration in the formulation and enforcement of child support obligations.

Lord Mansfield first articulated the “best interest of the child” standard in Blisset’s Case, 98 Eng.Rep. 899, 899 (K.B.1774), a child custody case. However, the standard did not evolve to include considerations of child support until later. 10 Courts often filled this void by intertwining the issues of custody and child support in a way that the child would be placed with the parent better able to support him. To accomplish this, the courts often employed a financially-based standard to determine issues of custody and support. For example, a 1935 Texas statute provided:

“[the] Court shall have full power and authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and such court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of the same ...” (emphasis added). 11

Today, this standard is found in § 14.07(a) of the Texas Family Code which provides, in part: “The best interest of the child shall always be the primary consideration of the court in determining questions *151 [regarding] ... support of ... the child.” 12

The dissent also fails to consider the impact its approach would have on the recipients of federal child support subsidies. The federal government waded into the child support swamp in 1974 with the passage of Title IV-D of the Social Security Act, 42 U.S.C. §§ 651-65 (1988). Congress’s initial goal was to staunch the hemorrhage of welfare payments made through the Aid to Families With Dependent Children (AFDC) program to primarily poor female heads of household and their children receiving either no, or inadequate, child support from their fathers. As the benefits of federal support enforcement became apparent, the IV-D program has expanded and become available in non-welfare cases too. Texas law requires recipients of AFDC, in return, to assign their rights to uncollected child support to the state and actively cooperate in the enforcement of the obligor’s child support duty. TEX.FAM.CODE § 14.062. 13 The dissent fails to take into account the potentially disruptive impact on the federal and state statutory scheme when the child support obligee is an AFDC recipient, and yet, for whatever reason, attempts to privately settle child support arrearages without court supervision.

Approval of extra-judicial settlement of child support arrearages would also render toothless federal efforts to improve child support enforcement begun in 1984 when Congress, using the carrot and stick approach, mandated that the states enact a number of specific remedies and procedures as a condition for the receipt of federal funds. See HOROWITZ, DODSON & HAYNES, REMEDIES UNDER THE CHILD SUPPORT ENFORCEMENT AMENDMENTS OF 1984 (1985) (prepared for U.S. Department of Health and Human Services, Office of Child Support Enforcement). One prescribed procedure required the establishment of discretionary guidelines for courts in setting child support. Child Support Enforcement Amendments of 1984, Pub.L. No. 98-378, § 18 , 98 STAT. 1305, 1321-22 (codified as amended at 42 U.S.C. § 667 (1988)). In 1985, the Texas legislature responded by amending Family Code section 14.05(a) to require that this court promulgate child support guidelines for the state’s trial courts. One stated purpose of the guidelines was to “promote the well-being of children through the timely fulfillment of parents’ obligation to support their children.” Act of June 3, 1985, 69th Leg., R.S., ch. 232, 1985 TEX.GEN. LAWS 1158, 1158. In 1989, the guidelines promulgated by this court were superseded by legislative guidelines. TEX.FAM.CODE § 14.052. Obviously, child support guidelines for the courts are of little use were this court to condone parental agreements effecting the support obligation without court approval.

In 1986, Congress passed further amendments to Title IV-D of the Social Security Act requiring, as a condition to the receipt of federal monies, the amendment of state law to provide that support installments become vested as they come due. 42 U.S.C. § 666 (a)(9) (1988). Rather than being intended to limit the power of the trial court to meaningfully supervise child support orders, as the dissent supposes, Congress in fact sought to prevent retroactive modification of arrearages and to facilitate the enforcement of overdue child support payments by giving overdue payments the status of a judgment entitled to full faith and credit in other states. Congress’s goal appears to have been three-fold: to aid in *152 the interstate enforcement of child support orders, to encourage timely requests for modification based on changed circumstances, and to discourage the type of self-help in which the obligor and obligee have indulged here.

Moreover, the self-help attempted by the parties in this case does not eliminate or reduce court intervention, as the dissent suggests; experience shows that it merely postpones it. After not paying child support for eight years, is it likely that the obligor will have greater fidelity to his settlement agreement than he had to the child support order of a district court? Common sense tells us the answer is no. Rather than a single hearing before the trial court, the putative settlement has now resulted in a trial on the merits, an appeal to the court of appeals and the proceedings before this court. The course suggested by the dissent does not even have expediency with which to commend itself.

For the forgoing reasons, I join the majority in holding the purported settlement of child support arrearages void and unenforceable, and thus affirm the judgment of the Court of Appeals.

. CONGRESSIONAL RESEARCH SERVICE, THE CHILD SUPPORT ENFORCEMENT PROGRAM: POLICY AND PRACTICE 1 (1989) (prepared for the subcommittee on Human Resources, Committee on Ways and Means).

. Justice Doggett’s concurrence worries about the mischievous implications of the words “natural" and "moral,” used by this court in 1921 when describing the duty of both parents to financially support their children. In his curious effort to distance himself from such notions, he overlooks the fact that Gully is cited primarily for the purpose of tracing the common law heritage of this duty from antiquity to modern times.

. 1 W. BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND *435 [hereinafter 1 Blackstone].

. Schuele, Origins and Development of the Law of Parental Child Support, 27 J.FAÍM.L. 810 (1988-89).

. 2 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 443 (reprinted 1968).

. 1 BLACKSTONE at *451.

. Schuele, supra note 4, at 825.

. Act approved Jan. 6, 1841, 5th Cong., R.S. § 4, 1841 Republic of Texas laws 20, 2 H. GAM-MEL, LAWS OF TEXAS 483, 484 (1838-1846) (current version at TEX.FAM.CODE § 3.63).

. See Martin v. Martin, 148 S.W. 344, 345 (Tex. Civ.App.—El Paso 1912); Bond v. Bond, 41 Tex.Civ.App. 129 , 90 S.W. 1128, 1128 (Tex.Civ.App.—Fort Worth 1905); Ligon v. Ligon, 39 Tex.Civ.App. 392 , 87 S.W. 838, 839 (Tex.Civ.App.—San Antonio 1905).

. Schuele, supra note 4, at 818.

. Act of March 19, 1935, 44th Leg., R.S., ch. 39, § 1, 1935 TEX.GEN.LAWS 111, 112, (current version at TEX.FAM.CODE § 11.05, 14.03, 14.-05(a), 14.08(a)).

. For cases applying § 14.07 to child support, . see Walton v. Walton, 567 S.W.2d 66, 68 (Tex.App.—Amarillo 1978, no writ); Friedman v. Friedman, 521 S.W.2d 111, 115 (Tex.App.—Houston [14th Dist.] 1975, no writ).

. § 14.062 reads as follows:

Reimbursement for Public Assistance.

(a) The court may order either or both parents to make periodic payments or a lump sum payment as child support, or both, as reimbursement for public assistance paid by the state for the support of a child under Chapter 31, Human Resources Code.

(b) Unless the state is a party to an agreement concerning support or purporting to settle past, present, or future support obligations by prepayment or otherwise, an agreement between the parties does not reduce or terminate any right of this state or any other state to recover for public assistance provided.