### THE NEY GENE

February'7,1966

Honorable Doug Crouoh DistrictAttorneys Tarrant County Fort Worth, Texas OpinionNo. C-599

Rer Rnforcementof a aupport order under the new Texas Uniform ReoiprocalRnforcementof Support Act for an out-of-state, plaintifforiginallyreceiving the support order ancillaryto a Texas Dear Mr. Crouch: divorce decree.

In your request for an official opinion on the above captionedmatter you have submittedfrets which we summarize a8 follows:

Plaintiff received a divoroe in a Texas Court and a support order for her childrenancillary thereto. She and the children then moved outside of the State of Texas. The defendanthaa not contributedto the support of the children a8 he wae ordered to do. He has moved from the county where the divoroe was entered and into Tarrant County. Plaintiff has initiated suit in the state where she now resides under a reciprocalenforcementof support act providedby the laws of said state. Her potifion has~been certifiedby a judge of said state and haa been sent to Tarrant County to be sued on for enforcement.

You have inquiredas to whether in our opinion, a suit for enforcementof a support order properlymay be brought in Tarrant County,under the new Texas Uniform ReciprooalRnforcementof SupportAct.

House Bill 138 (Acts of the 59th Legislature,1965, Ch. 67gg p. 1561) repealedArticles .2328b-1, 2328b-2 2328b-3 while simultaneously enactingArticle 2328b-4, and

Vernon's Civil Statutes. The Texas Uniform ReoiprooalRnforcement of Support Act contained in the repealed Articlea will be hereinafterreferred to, where convenient,ae ~the old act, while that act ena,ated by the 59th Legislature, Artiole 2328b-4,Vernon'8 Civil Statutes,will be hereinafter referred to, where convenient, as the new act.



### -2893-“Hon. Doug Crouch,page 2 (C-599) .”

An Identicalfact situationto the one you resent was passed on under the old act (Articles2328b-1, E3281~2, and 2328b-3,Vernon’* Civil Statutes) in t~he case of Freeealand, 313 S.W.2d 943 (Tex.Clv.App. 1958).The eland that the only proper Texas court to enforce a supp?%t order issued ancillaryto a Texas divorce wa8 the court entering it originally.

There la no provisionunder the new aot and there was no provisionunder the old act which specifically provides for the proper oourt for an enforcementsuit to be tried under the faots submittedby you.

” .Whennecessary to B oorreot understandl&*and interpretation of a statute, the court will take into consideration the state of the law at the time of its enactment,the conditionsdesigned to be dealt with, the good intended to be aooomplished, and the mischief sought to be prevented or remedied. tithermore the subjectmatter of the enactmentand the necessity or reason for it are also proper subjectsof judicial conalderatlon.” Jur.26 236, Statutes, 3162. 53 Tex.

A completediaoussionof the state of the law per& talnlng to enforcementof support orders within the State of Texas prior to and at the time of the adoption of the old aot la contained in Attorney General Opinion Ww-784 (1960), Any aontemptprooeedlngfor the enforcementof a support order was anolllary to the original order and exclusive jurisdiction

to enforce it remainedwith the court that entered the orininal order, one court being-without authorftv to punish contemptsof amother court. ti par& bowsaies? ” 111 Tex. 399, 238 S,W, 635 (ly;r;r); Putty v. Paulkmr, 2~4 S,W,2d 831 (Tex.Clv.App. 1948, no writ h% 193 S.W.2d 970 (Tex.Civ.App. 1946, no writ Johns, 172 S.w.2d 770 (Tex.Civ.App. 1943,

- to the adoption of the old aot, the courts were in complete agreementin stating that since a support order was of an interloautorv

nature. onlv the orininal district court had juriadlct

ion to- amend, aha
8 Tex. 605, 290 S.W.2d 5 165 S.W.2d 83 (1942); 542’(Tex.Civ.App.

1956, no eupra
. The old act was adopted aa one law ln a syatematlc enactmentof sim-ilar state laws baaed upon the~uniform

-2894-"Hon. Doug Crouch,page 3 (C+gg)."

ReciprocalEnforcementof Support Act recommended by the National Conferenoeof Commlasioners on Uniform State Laws and by the AmericanBar Aasociatlonin their annual conferences at Waashington, D.~ C. in September,1950. The conditiona designed to be dealt with by such laws,~ the good intended to be accompllahed, and the mischief aought to be prevented or remedied th~ereby

may be ascertained by reference to the Commlaelonerb'

PrefatoryNote to the Act. Handbook of Commlsbloners on Uniform State Lawa (1930)p. 171.

The Commieslonera aet forth the problemsmaking desirable the proposed statute, in part, as followsr

"With the increasing mobility of the Americanpopulationthe problem of interetate, enforcementof duties of supportbecame acute. A desertinghusband was beyond the reach of prooeaa in the state where he had abandoned hia family and the family had no means to follow him. Welfare departmentssaddledwith the burden of supportingdestitutefamilies
were often prevented from enforcingthe duty of aupport in the atate where the.husbandcould be found by decisionsholding that the duty existed only as to obllgeeawithin the atate.
"The avenue of criminal enforcement was not more fruitful. Charges could be preferred against the fleeing huabandbut he had to be returned 

### for trial to the state where the offense was committed. Rxtradltionwas both expensiveand narrowly teohnlcal,and it was often impossibleto prove that he had 'fled from justice'for frequentlyhe aupportedhis fam$.ly until he left the state and only left in order to get a job. Even if he were brought baak and successfully prosecutedthe result was disappointing. The proceedingsrenderedreconciliatlonwith the family improbable,took him away from hia job in the state to which he had fled, and by branding him a convictedcrimtial lessened the probabilitiesof gainful employ-~ ment in the home state.

"The 1950 Act, printed hereafter,attempts to improve and extend by reciprocal legislationthe enforcementof duties of support through both the

-2895-"Hon. Doug Crouch,page 4 (C-599).”

criminaland the civil law. Its provisionsare in addition to remedies now existing for the enforcementof duties of supportwithin the state, Eat ; long as the husband remaine in the state, and the new act is meant to improve enforcement where the partiea are in different states." suppLied.) (Emphaals

The crux of the Uniform Act and, in turn, the Texas Acts which were,tobe patterned thereon,was the two state enforcement

procedure. Such procedurewaB describedas follows in the Commissionera~ PrefatoryNote to the 1950 Uniform Act, citation aupra page 173. (We have added in the parenthesis,citationsto the old and new Texas Acts alongside the Commiseioners Act.) r Cltationato the 1950 Model Uniform

I,

. . .In the past, the greatest difficulty in enforcing supportwhere the partiea are in different statea haa been the expense of travel to a distant state to litigate the righta of the deMitute obligee. Under this Act this expense can be reduced to filing fees plus a few postage stampe. In a nutshell, this two-atateproceeding is as follows: It opens with an action (Section 9 of all three acts] which normally will be commenced in the state where the family has been deserted (the inltiatlngstate). A very simplified petition la filed (Section10 of both the model aot and of Article 232813-3 of the old Texaa Act; Section 11 of the new Texas Act), The judge looks it over to decide whether the facts ahow the existence of a duty of support and if they do he sends the petition and a copy of this Act to a court of the reaponding atate to which the husband has fled or in which he has property 4Section 11 of the model act and of Article 232 b-3 of the old Texas Act;- Section 14 in the new Texas Act). That Court will take the ateps necessary to obtain jurisdiction of'the husband or his property,will hold a hearing (Section12 of the model act and of Article 2328b-3 of the old Texas Act; Sections 18 and 19 in the new Texas Act - prosecutingattorneynow given responsibility for taking action to give court jurisdiction with court overseeingand If jurisdiction cannot be had where petition Is Feceived,-the petitionmay be forwardedto another court under Sectron 19(b) of the new act), and lf~the court finds that a duty

-2896-“lioni Doug Croioh, page 5 (C-599).”

of support exIot4, It may ord4r the defendant to furnish support (Section 13 of the model aot and of Article 2328b-3 of the old Texas Act; Section 23 of the new sot), and will transmit a copy of its ,orderto the court in the initiating state (Section14 of the model act and oi ArtI-: cle 2328b-3 of the old Texaa Act; Seotlon 24 of the new act). To enforce complla~nce with ita orders the court may subject the defendantto such terms and oondltionsas it may deam ppoper,may require him to furnishbond or make periodicpayments or’, in’oaae of ‘refusal, ‘may punish him for oontempt (SeatIon 15 of th4 model act and of Article 23288-3 of the old Texas Act; Section 25 of the new Act). It has the duty to transmit to the initiating: court any payments it received and upon request to furnish a certified ~atatement

of Chose paym4nts (Se&ion 16 of the model act and of Article 2328b-3 of the old Texas Aot; Seotion 26 of the new Act). The Inlt Iat “$ court must receive and disburse these payments 3eotion 17 of the model aot and of Artiale 2328b- of the old Texas Act; Section 27 of the n&f Act 3
. “This simple two-statepr&edure can bc carried out with a mInfmum of expense to the family or the state - the usual court costs and postage for th4 transmissionof papers and money. Yet it preserves dtie ~FOCQB~, for each party pleads In his own court. Provisions covering other detaila of procedurehave been kept out of the Act (lo that the usual rulas f’or obtaining jurisdiction for carryingon the procedure and for appealsmay~be held to govern.”
The Commiaalonerat Conferenceon Uniform State Lawn and the AmerioanBar Associationadoptad’amendments to the mod41 Uniform Act In 1952. We do not think ft necessary to refer to such amendments In this opinion although they might be useful in throwing, light on other problems which might arise under the new T&xas act.

To summarizebriefly: the oonditfonsdesigned to be dealt with, the good intended to be ~aooomplished and the ~miaohlef

sought to be prevented or remediedby IaWn baaed ~‘oloaely

on the model act - were an follows:
~!Che model aot was designed to provide an economicalm4ans for enf’orcing support orders

-2897-“Hon. Doug Crouoh,page 6 (C-599).”

against desertinghuebanda or husbandswho orossed etate,linesleavlng,destitute famillee behind them. No change under the model act was Intendedwith regard to husbands or ex-huabands rsmaining in the atate.
The old act followed olosely the 1950 Model Uniform Act in the above respeots.

When the trial court in the Freeland Case, aupra, was presentedwith a petition for enforcement under the old act against an ex-husbandwho remainedwithin the State of Texas by a plaintiffwho had crossed state lines, the Court of Civil Appeals was faced with a situationunprovided for under the Act and wan required to determineto, what extent, If any, the Act was applicable.

On the one hand, It wa8 clear that the old act purported to make no ohange in internal state law - th& one Texas oourt was without any authority to punish contem ts t of another Texas cour0. Attorney ffeneral’s OpinionWW-78 (1960)and authorityreferred to therein, a8 heretoforeoited.

On the other hand, plaintiffwas certainly In a predioament analogousto that which the Aot was primarily designed to deal with insofar a8 the enforcement problems presented.

A curative or remedial statute Is generally to be given the moat comprehensive and liberal~constructfonposeible, and certainly should not be given a narrow technical oons,truotIon

that would defeat the very purpose for which the statutewau enacted. 150 Tax. 18; .237,

S.Y.
The aourt resolved the question of the applicability of the Act by allowing the plaintiffto 6ue with the aid of the economicalproceduresprovidedby the Act, at the same time leaving in effect Internalstate law by restrioting jurisdiction

to act on the plalntiff’a petition to the Texas court entering the supportorder.

The old act oontained substantiallyidenticallanguage with regard to suits for enforcementof support orders under the out-of-state petitions as does the new act. (Parallel oltations 44t1 forth, aupra.) Freeland held that the plaintiffwaa limited to enforcement by the court entering the orIgina order In spite of such language. However, the new act, unlike the old act, fs olearly to be given Intrabtate

-2898-“Hon. Doug Crouch, page 7 (C+gg).”

err eot

. Section 31 o’f the new act,‘ArtIcle2328b-4,Vernon’s Civil Statutes,provides In part:

“This Act is applioable ,when bbth th4 Plaintiff and the Defendantar4 In this State but in differ4nt judicialdistricts.”
While the plaintiff lmthe Instant caee does not reside within thr State and thu? Section 31, Article 2328b-4, cannot give th4 Tarrant County Court juriadiotion over her petition, there is nothing In the new aot which would pr4veat the p4tItion from being treated simply ae any oth4r petitionunder the

.'ww act ,from an out-of-state

plaIntITf’(wlthout regard to any pe4eum4d dIst1LnotI~p~ arising from her having reoeivedher divoroe and the support order ancillaryther4towithin the State of Texas)

. Such a treatment is consistent with policy of the Legislature

under the n4w act.

W4 ar4 well aware of the rule of oonstruotfon of statutes whioh provides that wher4 an Act of the L4gIslatur4has been oonstruedby t~he cot&s aad such act Is rs-enaqtedby the Legislature In similar languagr,without substantialor material ohmgs, It Is pr4sumed that the Leglslature,wae aware of such interpretation and Intended that It shouldbe applied to the new Aot. On the other hand, where such prior Act has been pa-enactedbs the La~islaturewith substantialand material ohangas theri $8 no &oh presumption. Belllng4rv. Schutte, 244 S.W.2d 261, 263 (Tex.Civ.App. 1951).

Th4rs Is In our opinion substantial differcmcebetween an act which is only intended to be operablewh4n one of the parties is outsida the Stat4 and an act providing for lntrastate opkrationby its clear ‘terms. Obviously,a court could not oonstruean aot ae having Intrastateopsratioabefore the Laglalatureeo provided.

Under the old aat, had the Freeland decisionbeen otherwise,a plaintiff could have receivedmore flexible enfora4ment of support throughmoving outside of the Stat4 of Texas than wan then provided to Texas plaintiffe. Conversely the applicationof the Freelandholding under the new aot would deprive a plaintiffunder these facts of the~rlghtsnow given to Texan plaintiffs.

It would be highly f’riviloue to attribute $0 the Legislatura the purpose of makIAg an etiorcement prooedure ‘unavailable in all oases wherd a plaintirr moves out-of-stat4after receiving a support order ancillaryto a Texas divorce,while at the same b making suoh prooedureavailable~iaall other instances.

-2899-“Hon. Doug Crouch,pag4 8 (C-599)."

We. can find no basis for making the plaintiffsand the defendarits,

under these cfroumafanoee, members of a apecial alas4 to be d4nied the oonv4nIanoes now provided to all other plaintiffsand defendantsunder the new Act,

Both the plalntfffsand the defendantswho have had no prior connectionwith the State with regard to aupport order8 i and also those plaintiffsand defendantsdivorced by a Texas court with a support order Issued ancillaryto such divoroe (In Inbtanoas wh4r4 the plaintiff continuesto reside wL%hin th4 State) ar4 providedundar the new aat with a procedurawh4reby the support order may be conveniently enforord in dof4ndant’shome county.

The oonwnienoe of b4ing sued In one’s home county Is oonslder6dof auffloientlmportanoe under Texas law that a drfendant can, 4xoept in the oanen outlined in Artiolc 1995, Vernonfs Civil Statutes,have venue placed therein as a mettar of right. While under the n4w Act, def4ndant could not have venue transferredfrom the Texas court originally ent4&ng thr support’ord4r to his home county - If suoh transfer of the aotion oocure, it Is not realistic to assume the% hr is pyejudiced Cher4by. Such aould be argued under the old act $.n

the,Freelandoaae, supra. at page 946: “AppellantIn ttis oase might well find hIms4lf hopelessly impaled on the horns of dllemm4 If the order of ths Dallas Court 18

Permltted:to stand. If he were to pay the 25 per week to tha. Colleotorof Child Support of Tarrant County, as orderedby the’Tarrant County Court ha oould be held in contempt by the Dallas Count for his failure to obey Its order to make the payments to the Juvenile Court of Dallas County. On tha other hand, If hc wer4 to make the paymentu to the Juvenile Court of Dallas County, he oou3.d be held In oontemptby the Court In Tarraiat County for disobeyingits order.’
The dilemmaprojected In Frealand is not a possibility under the new aot, Section 29 (applicable to intrastateenforcement of patitions through SeotIon 31) provides In part:

n .the amount4 for a D4rtlaularp,erlod paid p&&ant to either order shall be credited against

. . ‘.

both.” (Emphaslasupplied)
The Texas oourt entering a support order orlgInal;y"Hon. Doug Crouch,page.9 (C-599).".

retains jurisdiction to enforce the order under Texas law, 1': but, as a practicalmatter, it has no compellinginterest, ln enforcing the order after both the obligeea and the'obligor have physically left its jurisdictional boundaries. The burden of non-supportthen falls elsewhere. Thus, the new act allows Its order to be enforced elaewherewithin the State.

You are advised that a restrictionagainst Intrastate enforcementof a Texas Support order under the submIttedfacts la lnconalstent

with the policy otherwise set forth under the new act. The petition which you have reoeived shouldbe processed for enforcementas any other petition for aupport'presented to your office by a plaintiff through an out-of-atate court under the new Texan Uniform ReciprocalEnforcementof Support Act.

A petItIon for enforcementof a support

order under the new Texas Uniform Reciprocal Enforcementof Support Act from an out-ofstate plaintiff originallyreceiving the aupport order, ancillaryto a Texas divorce decree, shouldbe treated the same as a petition receivedunder the Act from an out-of-state plaintiff. There la no exceptionwithin Artlcle 2328b-4,V.C.S., to the general rule that
an action th+reundermay be enforced against
a defendantby any Texas district court that may locate defendantor his property within' Its juriadiotlonal boundaries.There la no reason for a court to wlah to engraft such an exceotionon Article 2328b-4 as was engrafted In the case of Freelandvi Freelana on-the repealed Articles~ 2326b 1 232t)b-2,2328b-3, V.C.S.. Under the repekd Artiolea, a Texas plaintiff oould have her support order'enforoed only by the Texas court entering the order. This Is not true under Article 2328b-4.

Yours very truly;

WAGGOWERCARR Attorney Qeneral of Texas

Attorney Gsneral

-2901-. .

"lion. Doug Crowh, page 10 (C,ggg)."

. LCrcm
APPRm: OPINION COMIUTTEE

w. v, Qsppert, Cbaltraun John Banks John Moves Robert Owen Douglas Chllton

APPROVEDFOR ~!&a

ATTORNE? cmNBRA& By2 T. B. Wright

-2902-