Attorney General's Office on Behalf of State v. Mitchell, 05-90-01393-CV

• Decision Date: 21 May 1991
• Docket Number: No. 05-90-01393-CV,05-90-01393-CV
• Citation: 819 S.W.2d 556
• Parties: The ATTORNEY GENERAL'S OFFICE on Behalf of the STATE of Texas, the State of Kentucky, and Donna D. Mitchell Roe, Appellants, v. Dan W. MITCHELL, Appellee.
• Court: Texas Court of Appeals

Page 556

819 S.W.2d 556

The ATTORNEY GENERAL'S OFFICE on Behalf of the STATE of Texas, the State of Kentucky, and Donna D Mitchell Roe, Appellants, v. Dan W. MITCHELL, Appellee.

No. 05-90-01393-CV.

Court of Appeals of Texas Dallas.

May 21, 1991.

Rehearing Denied July 18, 1991.

Mechthild Bernhard, Tod L. Adamson, Dallas, for appellants.

Richard E. Harrison, Dallas, for appellee.

Before ENOCH, C.J., and CHADICK ¹ and CARVER, ² JJ.

OPINION

CARVER, Justice.

The Attorney General of Texas appeals a judgment in favor of Dan W. Mitchell arising under the Uniform Reciprocal Enforcement of Support Act (URESA). ³ Since Mitchell's complaint to the trial court was untimely under such Act, we set aside the trial court's judgment for lack of jurisdiction and dismiss Mitchell's complaint.

The record reflects that Mitchell was divorced in Kentucky and ordered to support his two minor daughters. In an URESA proceeding in the trial court, Mitchell's support was fixed at $70 per week, beginning August 2, 1985, plus $10 per week, beginning on the same date, toward an arrearage in support payments of $6,709.31. No review was sought of these findings and orders. Subsequently, upon a showing of delinquency, the clerk of the trial court issued a Writ of Withholding directing Mitchell's employer to withhold $363 per month from Mitchell's pay toward Mitchell's arrearage in child support. The writ was issued May 19, 1989, and executed by certified mail upon Mitchell's employer on May 24, 1989. On March 14, 1990, Mitchell filed a "Motion to Stay the Issuance and Delivery of Writ of Income Withholding." On July 24, 1990, Mitchell filed a "Motion to Set Aside Writ of Income Withholding." On August 7, 1990, the trial court entered its judgment which: (1) voided the prior writ of withholding; (2) required the Attorney General of the State of Texas to remit $5,808 plus interest; (3) taxed $3,000 attorney's fees to the Attorney General of the State of Texas to be paid to, or enforced by, Mitchell's attorney; and (4) assessed all costs to the Attorney General of the State of Texas. This appeal followed.

The Attorney General's first, and dispositive, complaint urges that since Mitchell did not challenge his delinquency, urged in support of the writ of withholding, within ten days, or challenge the writ of withholding itself within thirty days, as provided in section 14.44 of the Texas Family Code, then the complaint filed by Mitchell failed to invoke the jurisdiction of the trial court so as to permit any relief to Mitchell. We agree.

We set out the pertinent sections of the Family Code relating to remedies for arrearage in child support and for judicial review of those remedies:

Withholding From Earnings for Child Support

(a) Duty of Court to Order Income Withholding. Except for good cause shown ... the court shall enter an order that provides that income be withheld from the disposable earnings of the obligor:

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2. on motion to require income withholding regarding a child support order entered before the effective date of this subchapter; provided that at the time the motion is filed the obligor is shown to have been in arrears for a time period of at least 30 days for some portion of the amount due and in arrears for an amount equal to or greater than that due for a one-month period;

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(d) Withholding for Arrearages. In addition to income withheld for the current support of a child, in appropriate circumstances ... the court shall enter an order that income be withheld from the disposable earnings of the obligor to be applied toward the liquidation of any child support arrearages.

TEX.FAM.CODE ANN. § 14.43 (Vernon Supp.1991).

Notice of Delinquency in Court-Ordered Child Support

(a) Notice of Delinquency. A proceeding may be initiated under Part D of Title IV of the federal Social Security Act, as amended (42 U.S.C. Section 651 et seq.), if a delinquency allegedly occurs in any previously ordered child support in an amount equal to or greater than the total support due for one month.... The attorney general shall prepare and file with the court of continuing jurisdiction a verified notice of delinquency and deliver notice of delinquency to the obligor by hand delivery by a person designated by the attorney general or by first class or certified mail, return receipt requested, addressed to his last known address or place of employment.

(b) Contents of Notice. The notice of delinquency to the obligor shall:

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(3) contain a statement that if the obligor does not contest the withholding within 10 days after the receipt of the notice of delinquency, the obligor's employer will be notified to begin the withholding;

(4) describe the procedures for contesting the issuance and delivery of a writ of withholding;

(5) contain a statement that if the obligor contests the withholding, he will be afforded an opportunity to present his case to the court within 30 days of receipt of the notice of contest;

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(c) Staying Issuance and Delivery of a Writ of Income Withholding. The obligor may stay the issuance and delivery of a writ of income withholding on his current or subsequent employer by filing a motion to stay issuance and delivery with the clerk of court with jurisdiction of the matter within 10 days of the date that the notice of delinquency is received by him....

(d) Hearing on Contested Delinquency. When a motion to stay issuance and delivery has been filed, a hearing on the motion must be held within 30 days of its filing.

* * * * * * (e) Failure to Receive Notice of Delinquency. Within 30 days after the effective date of a writ of withholding on the obligor's employer, the obligor may file an affidavit with the court that a motion to stay issuance and delivery was not timely filed because the notice of delinquency was not received and that grounds exist for a motion to stay issuance and delivery as stated in Subsection (c) of this section. Concurrently, the obligor may file a motion to withdraw the writ of income withholding and to hold the hearing provided by Subsection (d) of this section and by Section 14.43 of this code.

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TEX.FAM.CODE ANN. § 14.44 (Vernon Supp.1991) (emphasis added).

Writ of Withholding From Earnings for Child Support

(a) Issuance and Delivery. No sooner than 20 days following the...