Foreness v. Hexamer

• Citation: 971 S.W.2d 525
• Decision Date: 30 October 1997
• Docket Number: No. 05-95-01162-CV,05-95-01162-CV
• Parties: Patrick FORENESS, Director, Postal Data Center, and United States Postal Service, et al., Appellants, v. Maury HEXAMER, Appellee.
• Court: Court of Appeals of Texas

Page 525

971 S.W.2d 525

Patrick FORENESS, Director, Postal Data Center, and United

States Postal Service, et al., Appellants, v. Maury HEXAMER, Appellee.

No. 05-95-01162-CV.

Court of Appeals of Texas,

Dallas.

Oct. 30, 1997.

Dane Smith, Asst. U.S. Atty., Eastern Dist., U.S. Dept. of Justice, Tyler, Constance Ann Wynn, PHV Wynn, U.S. Dept. of Justice, Civil Div., Washington, DC, for Appellants.

Maury Marlene Hexamer, Sherman, for Appellee.

Before OVARD, HANKINSON ¹ and MOSELEY, JJ.

OPINION

OVARD, Justice.

Appellants "Patrick Foreness, Director, Postal Data Center, and United States Postal Service" ² (collectively, the "Postal Service") appeal a summary judgment granted to appellee Maury Hexamer on her action to enforce a Texas judgment awarding her current and pastdue child support, interest, court costs, and attorney's fees. We conclude federal law governs the dispositive issue of this protracted litigation and excuses the Postal Service from complying with a Texas child support garnishment order under the facts of this case. We reverse the trial court's judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

BACKGROUND

Hexamer obtained a divorce from her former husband, Joseph Travis Tucker, Jr., in a Texas court in 1973. The divorce decree awarded Hexamer custody of the couple's minor child, Gavin Travis Tucker, and $200 monthly child support. At the time of the divorce, both Tucker and Gavin lived in Rhodesia. Tucker was never personally served with process in the divorce proceeding; instead Hexamer relied on substitute service by publication in an Austin, Texas newspaper. After living in Rhodesia for eleven years, Tucker and his son moved to Arizona where Tucker went to work for the Postal Service. ³ Thereafter, Hexamer, a licensed attorney serving as her own counsel, sought to collect the child support payments that had been awarded to her by the Texas divorce decree.

In 1987, she sued Tucker for past-due child support in a Texas district court. Tucker did not participate in this Texas litigation. The Texas court issued a Judgment for Unpaid Child Support & Order for Withholding of Income and an Employers Order to Withhold Earnings for Child Support (the "withholding order"). Hexamer served the withholding order on the Postal Service, Tucker's employer in Arizona.

Tucker responded by filing his own suit in an Arizona court for relief from the Texas child support judgment and the withholding order. The Arizona court found the Texas court lacked personal jurisdiction over Tucker to issue the original child support order. It issued an Order to Quash (the "quash order") quashing the underlying Texas child support orders and the wage withholding order previously served on the Postal Service.

When served with the Arizona quash order, the Postal Service refused to comply with the Texas withholding order. For several years, Hexamer attempted to enforce the Texas withholding order in federal courts. The Fifth Circuit Court of Appeals ultimately dismissed her federal lawsuit, ruling that the federal district court lacked subject-matter jurisdiction and that the case should be remanded to state court. See Hexamer v. Foreness, 981 F.2d 821 (5th Cir.1993). Hexamer then filed this action against the Postal Service in a Texas state court seeking compliance with the Texas withholding order. The trial court granted summary judgment for Hexamer. This appeal followed.

SUMMARY JUDGMENT

In two points of error, the Postal Service contends the trial court erred in granting summary judgment for Hexamer because: (1) the Postal Service was not required to comply with the Texas garnishment order under the federal Child Support Enforcement Act, ⁴ as amended, and its implementing regulations; and (2) the initial Texas child support order was void and unenforceable because the issuing court lacked personal jurisdiction over Tucker.

1. Standard of Review

This Court reviews a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. See American States Ins. Co. v. Arnold, 930 S.W.2d 196, 200 (Tex.App.--Dallas 1996, writ denied); Capitan Enters., Inc. v. Jackson, 903 S.W.2d 772, 775 (Tex.App.--El Paso 1994, writ denied). An appellate court follows well-established procedures when reviewing a summary judgment. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

2. Applicable Law

a. Preemption

Garnishment is a legal proceeding brought by a creditor (garnishor) against a third party (garnishee) to obtain the debtor's property held by the garnishee to satisfy the debt owed to the garnishor. See Harris v. Balk, 198 U.S. 215, 216, 25 S.Ct. 625, 625, 49 L.Ed. 1023 (1905). Garnishment is a creature of state law. Id. Garnishment proceedings may not be brought against the United States absent a waiver of its sovereign immunity. Millard v. United States, 916 F.2d 1, 3 (Fed.Cir.1990), cert. denied, 500 U.S. 916, 111 S.Ct. 2012, 114 L.Ed.2d 99 (1991). In 1974, Congress enacted legislation ⁵ that waived the federal government's sovereign immunity against garnishment proceedings for enforcement of court-ordered child support and alimony. Id.

Under the Supremacy Clause of the United States Constitution, a federal law preempts all inconsistent state legislation if the federal law conflicts with state law. U.S. CONST. art. IV, cl. 2. However, because domestic relations are generally matters of state law, Congress rarely enacts legislation that displaces state family law. Mansell v. Mansell, 490 U.S. 581, 587, 109 S.Ct. 2023, 2027-28, 104 L.Ed.2d 675 (1989). When a federal law conflicts with a state family law, review under the Supremacy Clause is limited to a determination of whether Congress has positively required by direct enactment that state family law is preempted. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979); Buys v. Buys, 924 S.W.2d 369, 373 (Tex.1996). The pertinent questions are whether the right asserted under state law conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require preemption of state law. Hisquierdo, 439 U.S. at 583, 99 S.Ct. at 809; Buys, 924 S.W.2d at 373. Regulations have the same preemptive effect as statutes. Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 158 (Tex.1993) (citing Hillsborough County, Fla. v. Automated Medical Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985)).

b. Texas Family Code ⁶

The Texas Family Code permits wages to be garnished for payment of an obligor's child support obligations in any proceeding brought under part D of title IV of the federal Social Security Act. ⁷ See Act of Sept. 3, 1986, 69th Leg., 2d C.S., ch. 10, § 7, 1986 Tex. Gen. Laws 15, 17, repealed by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282 (current version at TEX. FAM.CODE ANN. § 158.006 (Vernon 1996)); State ex rel. Nelson v. Nelson, 783 S.W.2d 635, 638 (Tex.App.--Houston [14th Dist.] 1989, writ denied). It provides procedures that the parties must follow in a garnishment suit to preserve their rights under the family code.

Specifically, an employee-debtor has ten days after receipt of notice of the garnishment action to file a motion to stay issuance of the writ of income withholding. Act of Sept. 2, 1986, 69th Leg., 2d C.S., ch. 10, § 8, 1986 Tex. Gen. Laws 15, 20-21, repealed by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282 (current version at TEX. FAM.CODE ANN. § 158.307 (Vernon 1996)). The timely filing of a motion to stay prohibits the clerk of the court from delivering the writ of income withholding to any employer of the employee-debtor pending a hearing on the motion. Id. (current version at TEX. FAM.CODE ANN. § 158.308 (Vernon 1996)). If the employee-debtor fails to timely file the motion to stay, the trial court loses jurisdiction to stop the garnishment. Attorney Gen.'s Office ex rel. State v. Mitchell, 819 S.W.2d 556, 558-60 (Tex.App.--Dallas 1991, no writ).

An employer-garnishee has twenty days after receipt of an order of income withholding to request a hearing on the applicability of the order to the employer. Act of Sept. 3, 1986, 69th Leg., 2d C.S., ch. 10, § 7, 1985 Tex. Gen. Laws 15, 19 (repealed 1995) (current version at TEX. FAM.CODE ANN. § 158.205(a) (Vernon 1996)). After requesting a hearing, an employer-garnishee must continue to make payments to the creditor-garnishor pending further orders of the court. Id. (current version at TEX. FAM.CODE ANN. § 158.205(c) (Vernon 1996)). ⁸

c. 42 U.S.C. § 659

All agencies, subdivisions, and instrumentalities of the United States must comply in the same manner as a private employer with legal process brought for enforcement of an employee's legal obligation to provide child support. 42 U.S.C. § 659(a) (1991); United States v. Morton, 467 U.S. 822, 826, 104 S.Ct. 2769, 2771-72, 81 L.Ed.2d 680 (1984). Service of legal process may be accomplished by certified or registered mail, or by personal service, and shall be accompanied by sufficient data to permit prompt identification of the individual and moneys involved. 42 U.S.C. § 659(b) (1991).

Authority to promulgate regulations for implementing 42 U.S.C. § 659 within the executive branch of the United States government is vested in the President or his designee. 42 U.S.C. § 661(a) (1991). The President, by executive order, delegated authority to the Office of Personnel Management to promulgate implementing regulations. Exec. Order No. 12,105, 43 Fed.Reg. 59,465 (1973), as amended by Exec. Order No. 17107, 44 Fed.Reg. 1,055 (1979). In accordance with this delegation of authority, the Office of Personnel Management promulgated regulations for processing child support garnishment orders. 5 C.F.R. Ch. 1 (1-1-96 Ed.).

Upon proper service of legal process, a...