### DAN MORALES

.A?TORNEY GNERAL 

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Qhneral &date of I[texas May 13, 1993

Honorable Jet&y D.Herrington Criminal District Attorney Anderson County Courthouse 500North Church Street Palestine, Texas 75801 Opiion No. DM-222

Re: Whether a child support obligee may modify a child support order by 6ling with a district clerk a limited power of attorney 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’sresponsibiity is to comply with the terms of the existing child support order unless and until the proper court modifies the Oh.’ Asbackground, 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

IWedctamhc in thisopiniononlywhcthu a childsupport oblige mayauthoti pqmutt of cbildrupportpaymntstopnmtityotherthenthatprovidedinthccourtorda. Wettndcrstaudthata courtordagarrallydoanotattempttofixtheaddrrsofanoblig~. Accmdin@y,wedowtdctcmim inthisopinionwhctltor

achildsupport

oblige maychangehisorheraddxssforpqoses oftransmitting t&child sopport

pymcnts.

P. 1161Honorable Jefiky D. Herrington - Page 2 (~~-222)

office of the District Cl& who shag remit those payments to Mrs. M., for the support ofBaby 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 ofMrs. 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 penons”thatthecouthassqsxci6cdintbcdccree.2 SeedwU%itev.A&ock,666 S.W.2d 222,225 (Tex. App.-Houston 114thDisk] 1984,no writ) (emphasizing that court may order payments for support of children “to rhr per& specified in decree). This 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 abrocading inwhich 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 ofappeals’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 ofthe 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 thattbc7lst Lcgihtm enactalhvomsions ofsation 14.05(s). compareAct51989, 71~4 Le& ch. 617. 55 with Acts 1989,7ls1 Leg, 1stC.S., ch. 25, 0 13. Whilethetwovcrsiomanz similar,toih~ttbattbcLanguageoTthctwo~~~~.welrdatotbcvQsionenencd later,tintingthe legislahuek fltst calledsession. See AttomcyGeneralOpiion M-497 (1%9) al 14 Oatcat oxprcaaion

ofkghlalure contmlsova priorccntlictin8Ie8isMion).

p. 1162Honorable 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 isultimately 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 isto receive the child support payments by any other
means.’Generally, of course, the law favors the assignment of wntracmal rights. See 7 TEX.Jm. 3dAarigrmterrfs$52,4, 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. 84, at 178-79. In our opinion, the assignment of the right to receive child support payments iswntraq to publicpolicy.

In a case such as the one you raise, a managing conservator accepts the child support payments for the benefit ofthe child, not for him- or haself. See Hillv.Hill, 819 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’sright to child 

### support payments. Instead, the managing wnservator must seekthe approval ofthe court with wntinuing, exclusive. jurisdiction over the child, which will consider and protect the child’sinterest inthe.child support payments.

p. 1163Honorable 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 inthe 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.

DAN MORALES Attorney Genarsl ofTexas

WJLL PRYOR Fkst Assistant Attorney General

MARYKELLER Daputy Attorney General for Litigation

RENEAHlcKs State Solicitor
MADELEINE B. JOHNSON Chair, Opiion Committee Prepared by KymberlyK. Oltrogge Assistant Attorney Gene-ml

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