Case Information

*1 QMfice of tip !Zlttornep Qhneral

&date of I[texas May 13, 1993 .A?TORNEY GENERAL

Honorable Jet&y D. Herrington Opiion No. DM-222 Criminal District Attorney Re: Whether a child support obligee may

Anderson County Courthouse modify a child support order by 6ling with a 500 North Church Street district clerk a limited power of attorney Palestine, Texas 75801

authoriaing a corporation to receive child support payments paid through the district ckrkk office along with a request that the clerk send the child support payments to that corporation (RQ-478) Dear Mr. Herrington:

You have asked us to determine the responsibility of a district clerk when a child support obtigee files with the clerk a limited power of attorney assigning to a corporation thetighttoreccive child support paid through the clerks office along with a request that the clerk send child support payments it mceives to the corporation named in the limited power of attorney. As a threshold issue, we must determine whether the child support obhgee may modify the child support order simply by thing these documents. We determine that a child support obligee may not modii the child support order; only the cant with combming, exchtsive jurisdiction in the case may modify the child support order. Hence, in such a situation, the district clerk’s responsibiity is to comply with the terms of the existing child support order unless and until the proper court modifies the Oh.’

As background, you state the following:

In 1990, Mr. and Mrs. M. were divorced in Anderson County. Mrs. M. was named the managiq conservator of Baby M. The Fii Decree of Divorce provided that Mr. M. shag pay [child support] to Mrs. M. . in the amount of 8150.00 a month. The Final Decree tiuther provides that all child support payments be made through the IWe dctamhc in this opinion only whcthu a child support oblige may authoti pqmutt of cbildrupportpaymntstopnmtityotherthenthatprovidedinthccourtorda. Wettndcrstaudthata courtordagarrallydoanotattempttofixtheaddrrsofanoblig~. Accmdin@y,wedowtdctcmim in this opinion whctltor a child support oblige may change his or her addxss for pqoses of transmitting t&child sopport pymcnts.

P. 1161

Honorable Jefiky D. Herrington - Page 2 (~~-222)

office of the District Cl& who shag remit those payments to Mrs. M., for the support of Baby M.

In 1992, the District Clerh mceived two instruments from the child support obligee, Mrs. M. The thst instrument is entitled “Limited Power of Attorney and Authorization to Release I&ormation” and appears to make Child Support Collections dba In the Interest of Childrea Inc. the ageat of Mrs. M, with the authority to collect and receive the child support payments due Mrs. M. The second ~isarequestthatallkturechildsupportpaymemsmade

through the District Clerks O&e be sent to Child Support Collections. Both are notaked.

Section 14.05(a) of the Family Code authorizes a district court, in a child custody prowed& to order either or both parents to, among other things, make periodic paymmtsforthesupportofthechild”inthenwnaandtoorforthebenefitofthe SeedwU%itev.A&ock,666 penons”thatthecouthassqsxci6cdintbcdccree.2 S.W.2d 222,225 (Tex. App.-Houston 114th Disk] 1984, no writ) (emphasizing that court specified in decree). This may order payments for support of children “to rhr per& office previously has stated that section 14.05 of the Family Code “confers broad disaaionuponthedistrics~ind~aminingtowhomchildsupportpaymmtswillbe made.” Attorney Gatd Opinion H-343 (1974) at 1. Generally, in a brocading in which acourto~paiodicchildrupportpayrmnts,~courtmustordathrtincomebe withheld from the obliger’s eamings and that a court registry, a child support collection office, or tbe attomey gewral initially receive the payment. Fam. Code $8 14.05(e), 14.43(c). The initial receiver of the payment is promptly to distriite the paymen& presumably to a peraott designated in the court order. See id. 55 14.05(a), 14.43(c); Rhi&?, 666 S.W.Zd at 225. Based on the language of sections 14.05(a) and 14.43(c) of the Family Code, the court of appeals’ construction in KJt& and the statements this office made in Attorney General Opiion H-343, we believe that no person or entity other than the district court is authorizul to determine in the original order to whom child support payments will be made or distributed.

Section 14.08 of the Family Code provides the procedure by which a child support order or that portion of a divorce decree pertaining to child support may be modiied. Signiticantly, only the court having continuing exchtsive jmisdiction over the suit

2we mtc that tbc 7lst Lcgihtm enactal hvo msions of sation 14.05(s). compare Act5 1989, 71~4 Le& ch. 617. 5 5 with Acts 1989, 7ls1 Leg, 1st C.S., ch. 25, 0 13. While the two vcrsiom anz similar,toih~ttbattbcLanguageoTthctwo~~~~.welrdatotbcvQsionenencd later, tinting the legislahuek fltst called session. See Attomcy General Opiion M-497 (1%9) al 14 Oatcat oxprcaaion of kghlalure contmls ova prior ccntlictin8 Ie8isMion).

Honorable JeEey D. Henington - Page 3 (D&222)

affecting the parent-child relationships may, after a motion has been filed and a hearing wnducted, mod@ the order or portion of a divorce decree that provides for child suppott4 Fam. Code 4 14.08(a). In our opinion, the wurt’s exchtsive power to modify the child support order encompasses the power to modii that part of the order designating the person or persons who is ultimately to rewive. the child support payments. The court’s exchrsive power therefore generally precludes modification of that portion of the order designating the person who is to receive the child support payments by any other means.’

Generally, of course, the law favors the assignment of wntracmal rights. See 7 TEX. Jm. 3d Aarigrmterrfs $5 2,4, at 175-76. 178. However, ifan assignment would be wntrary to public policy, the right to assign a wntmcmal provision should not be presumed. See id. 8 4, at 178-79. In our opinion, the assignment of the right to receive child support payments is wntraq to public policy.

In a case such as the one you raise, a managing conservator accepts the child support payments for the benefit of the child, not for him- or haself. See Hill v. Hill, 8 19 S.W.2d 570.572 (Tex. App.-Dallas 1991, writ denied). Child support agreements are, therefore, structured to provide for the best interests of the child. Id. Consqucntly, a managinB conservator may not unilaterally assign to a third party the child’s right to child support payments. Instead, the managing wnservator must seek the approval of the court with wntinuing, exclusive. jurisdiction over the child, which will consider and protect the child’s interest in the. child support payments.

Honorable Jefhy D. Herrington - Page 4 W-222)

SUMMARY Unless section 14.08(h) of the Family Code applies, a district ciakmustp~childsupportpaymentstothepasondesignatedin the existing child support order or in that portion of a divorce decree providing for child support. Thus, a district clerk must wntinue to pay the obligee designated in the court order even though the obligee has 6led with the clerk a limited power of attorney authorizhg a wqoration to receive the child support payments and a request that the clerk send the child support payments to that corporation.

Attorney Genarsl of Texas WJLL PRYOR

Fkst Assistant Attorney General

MARYKELLER

Daputy Attorney General for Litigation

RENEAHlcKs

State Solicitor

MADELEINE B. JOHNSON

Chair, Opiion Committee

Prepared by Kymberly K. Oltrogge

Assistant Attorney Gene-ml