Last Friday, June 24th, the Texas Supreme Court issued a ruling that allows courts to consider child support payments made in a manner not specified in a court order when confirming arrearages. In Oschner v. Oschner, a child-support order required Father to make payments through a state registry after his child graduated from the preschool to which he was making tuition payments. Instead of adhering to this court order, Father paid his child support directly to a new school that the child attended rather than paying the state registry. Over the next ten years, Father paid over $78,000 worth of tuition funds towards the child’s school – $20,000 more than he would have been obligated to pay under the court order. His wife brought an enforcement suit asking the court to confirm nearly $50,000 in child support arrearages that Father did not pay directly to her or to the state registry. The trial court permitted Father to use the tuition payments to offset his child support obligation, but the appellate court disagreed. The Supreme Court ultimately found that the trial court acted within its discretion when it considered these tuition payments as evidence of child support payments and that Father had in fact fulfilled his child support obligation.

While this ruling may appear as though the Court has opened the door for parents trying to work around court-ordered child support with separate agreements, the Court was careful to frame this as a very narrow ruling. While trial courts can consider non-conforming payments such as tuition when determining the amount owed in child support arrears, they certainly do not have to. Further, not all tuition payments to schools should be considered acceptable substitutes to child-support payments. As stated by Judge Guzman in his concurrence- “obligors who fail to discharge their child-support obligations by the court ordered method do so at their own peril”. The Supreme Court affirmed that trial courts are perfectly suited for determining these type facts on a case-by-case basis, suggesting that trial courts should focus on the child’s best interest and whether parents have attempted to “shirk” the obligations originally stipulated to them in their child-support orders. In this very fact specific case, where one party incurred child-raising costs that the other party paid for in a manner almost identically mimicking the original child support order, the Court found that the child-support had effectively been paid. However, this narrow set of facts should not be used as a work-around for parents avoiding, reducing, or neglecting child support.

Even after this ruling, the best way for a parent to avoid liability for unpaid child-support fees is to pay the costs in the exact manner ordered by the courts. If you or someone you know has a question or problem regarding child support, feel free to contact me at jbender@duffee-eitzen.com.

Jodi Bender