Sheres v. Engelman, Civ. A. No. H-78-572.

• Decision Date: 12 February 1982
• Docket Number: Civ. A. No. H-78-572.
• Citation: 534 F. Supp. 286
• Parties: Barbara SHERES, Plaintiff, v. Stuart M. ENGELMAN, Defendant.
• Court: U.S. District Court — Southern District of Texas

534 F. Supp. 286

Barbara SHERES, Plaintiff, v. Stuart M. ENGELMAN, Defendant.

Civ. A. No. H-78-572.

United States District Court, S. D. Texas, Houston Division.

February 12, 1982.

Ronald H. Tonkin, Houston, Tex., for plaintiff.

Larry Sauer, Sauer & Hormachea, Houston, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

McDONALD, District Judge.

Plaintiff instituted this action to enforce a separation agreement which was incorporated but not merged into a divorce decree entered by the Supreme Court of the State of New York on February 20, 1970. This Court has jurisdiction under 28 U.S.C. § 1332. Defendant maintains that the New York decree was modified and superseded by a subsequent support decree issued by the 166th District Court of Bexar County, Texas, on October 10, 1974. The parties have stipulated to the facts and submit the case to the court on the pleadings for resolution of the question of the effect of the Texas order on the New York divorce decree.

The facts may be stated as follows. Plaintiff and defendant were divorced by a Final Judgment entered by the Supreme Court of the State of New York on February 20, 1970. Under the terms and conditions of the judgment, the parties executed a written Separation Agreement dated February 18, 1970, governing the custody, visitation, and support of their two children Brian, born November 29, 1952, and Peter, born January 21, 1957.¹

The Separation Agreement gave plaintiff custody of the two children and gave defendant the duty of child support and visitation privileges. It provided that defendant pay $75.00 per week in child support for each child until the child reached the age of twenty-two, except that payments would cease if the child were not a full-time matriculated student in good standing at a college or other accredited school at the age of eighteen or any time thereafter. From the date of judgment until June 15, 1973, defendant paid the plaintiff $75.00 per week per child for the support and maintenance of each of his two children as required by the divorce judgment. On June 15, 1973, defendant ceased all payments. At that time Brian was twenty years old and in college and Peter was sixteen years old.

Almost a year later, in May 1974 plaintiff filed a Petition for Support in Florida, and the 166th District Court of Bexar County, Texas, pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), Tex.Fam.Code Ann. § 21.01 et seq. (Vernon 1980), entered a Reciprocal Support Order on October 10, 1974. The order found a substantial and material change of circumstances and reduced both future payments and arrearages. It required defendant to pay plaintiff $100.00 per month in child support until Peter reached eighteen and $3,000 in arrearages at the rate of $100.00 a month thereafter.² The order did not refer to the original order or state whether or not it superseded it. Plaintiff did not appeal the order. Defendant subsequently paid the Bexar County court $2,500: $400 for support of Peter until his eighteenth birthday and $2,100 for past due support. Thus, he is in arrears on that Texas court's order in the amount of $900.00.

On March 30, 1978 the plaintiff instituted this action seeking to enforce the New York judgment and support order, notwithstanding the purported modification of support payments by the Bexar County court. She seeks $23,225 in arrearages as of this date, the amount calculated as due under the New York order less the amounts defendant paid to the Bexar County court.

Plaintiff moved for summary judgment on November 13, 1978 on the grounds that this Court should give the New York judgment full faith and credit. The motion was referred to a United States Magistrate. The magistrate concluded that the Bexar County court order is res judicata as to arrearages owed by defendant to plaintiff as of the date of the order, and that it cannot be collaterally attacked because the court had jurisdiction. This Court denied plaintiff's motion for summary judgment on February 5, 1980. Following the magistrate's analysis and conceding that the Bexar order might be res judicata as to arrearages it noted that the effect of the Bexar County court order depended on which sections of URESA plaintiff had followed in suing defendant. The parties were in disagreement on that issue, and the court invited them to brief the question. The parties subsequently filed a joint pretrial order stipulating that plaintiff filed her URESA action under the civil enforcement and not the registration sections of the uniform act. They also filed supplemental briefs on the summary judgment motion. After review of the relevant statutes, the case law and the parties' arguments, the Court grants judgment to plaintiff.

I.

The Texas URESA statute provides "The purposes of this chapter are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto," (§ 21.02).³ The act was designed to supplement, not supplant, existing methods of enforcement since "conventional judicial proceedings had proved unsatisfactory largely because the defaulting spouse-obligor was frequently outside the jurisdiction and the obligee could rarely afford to travel to distant states and litigate the question of support obligation." O'Halloran v. O'Halloran, 580 S.W.2d 870, 871 (Tex.Civ.App. 1979).⁴ Thus, Section 21.04 states that, "the remedies herein provided are in addition to and not in substitution for any other remedies even though prior orders of support exist in this state or any other jurisdiction." Among the provisions for civil enforcement (§§ 21.21-21.45), Section 21.43 addresses the relationship of a URESA order to other support orders, stating

No order of support issued by a court of this state shall supersede any other order of support, but the amount for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both.⁵

Defendant in the instant case maintains that the Bexar County court properly exercised its authority to modify the New York decree in accordance with "a substantial and material change in circumstances" since the time the New York order was entered, and that the Bexar County court order superseded the New York order. Plaintiff originally argued that the Bexar County court had no authority to modify the support decree of the State of New York, and that the New York decree should be given full faith and credit under the United States Constitution, Article IV, Section 1 and 28 U.S.C. § 1783. Now, however, conceding that she filed a civil enforcement action, plaintiff seeks only that amount by which the unpaid child support due under the New York order exceeds child support paid pursuant to the Bexar County order. She accepts as credit against defendant's debt the amounts he paid in compliance with the Texas order and, does not challenge the validity of the modification of child support obligations by the Texas court. The question before this Court, therefore, is whether the Texas court's modification of the amount of child support is a bar to this court's enforcement of the valid New York judgment.

II.

A preliminary consideration is whether the Court is bound by the arrearages ordered in the URESA action. Defendant argues, and the magistrate concluded, that this Court cannot order defendant to pay arrearages due under the New York order because the Bexar County court's reduction in child support arrearages due to the date of its order is res judicata in this Court.

Texas Family Code Annotated, Section 14.08(c)(2), added by the legislature in 1974, requires that in proceedings brought in Texas state courts, "an order providing for the support of a child may be modified only as to obligations accruing subsequent to the motion to modify." The case law makes clear that a Texas court in a local action lacks authority to modify the obligations for past due child support, or arrearages, or the date and manner of payment. Richey v. Bolerjack, 594 S.W.2d 795, 799 (Tex.Civ. App.1980). Whitley v. Whitley, 566 S.W.2d 660, 662-3 (Tex.Civ.App.1978) and Houtchens v. Matthews, 557 S.W.2d 581, 584 (Tex. Civ.App.1977) (writ dismissed). Therefore, if Texas law applied in the URESA action, the Bexar County court did not have the authority to modify the amount of arrearages due under the New York order.

The parties have provided, and the Court has found, no case law governing the modification of arrearages in a URESA civil enforcement action. However, in other actions to enforce a foreign judgment Texas courts have not allowed modification of arrearages. In Hollis v. Hollis, 508 S.W.2d 179 (Tex.Civ.App.1974), the court implied that where plaintiff seeks to enforce a foreign judgment on the basis of the full faith and credit clause of the United States Constitution, arrearages as opposed to future payments due under the foreign order are binding on a Texas court. It noted, in dicta,

it is generally conceded that a foreign decree for future installments of child support not yet due does not, as to such installments, bind the forum by the full faith and credit clause where such future installments are subject to change by the court rendering the decree.

Id. at 183, n. 8 (emphasis added).

In a URESA registration action, one Texas appeals court has applied the arrearage rules of the state which issued the original support order. Parker v. Parker, 593 S.W.2d 857, 859 (Tex.Civ.App.1980) affirmed a judgment for past due alimony and child support noting that although, pursuant to the Georgia statutes the parties' property settlement agreement permitted modification of child support based on a change in the financial status of the husband, the Georgia Supreme Court had held that past due child support is vested and cannot be modified, and that the Texas Supreme Court grants full faith and credit to foreign alimony decrees where arrearages...