Enforcement – What Can Be Done To Enforce An Order?
Every litigant understands that obtaining the court order is only the first step in the process. The degree of leverage that can be exerted to enforce the court’s order is the more important issue. An order without an effective enforcement mechanism is of little value.
Frankly, it is rather frustrating from a lawyer’s point of view to inform a client that enforcement of a court order is not as simplistic as it should be. In fact, the remedies available to push a recalcitrant party into compliance vary considerably depending upon the type of order and the terms of the particular order in question. The Texas appellate courts have made enforcement procedures complicated and, in some instances, rather frustrating. Only the vagaries of marital property law are more complicated than the procedures related to enforcement of orders in Texas.
Enforcement – Contempt & Other Relief
“Contempt” is the first term that comes to mind when someone believes the opposing party has violated a court order. Closely behind the term “contempt” is the thought of “jail time” for the violator. Unfortunately, the real answer is not that simple.
Texas appellate courts have taken the position that a litigant who faces the possibility of incarceration is entitled to the same considerations as a person charged with a criminal offense. That means a person seeking enforcement of an order with a finding of contempt and a jail sentence must clear several hurdles including: 1) a definitive order as the foundation for the enforcement suit, 2) specific allegations concerning how the order was violated, 3) personal service upon the violator, 4) evidence that the violator was capable of complying with the order, and 5) a definitive order related to the incarceration of the violator.
When taken item by item the foregoing paragraph means:
- Definitive order – The order that has been violated must be specific concerning:
- What party is to do it,
- What the party is to do,
- When the party is to do it,
- How the party is to do it.
- Specific allegations – The request for enforcement must specifically outline:
- The terms of the order that has been violated,
- The date the order was violated,
- How the order was violated,
- A claim that the violator was capable of compliance but elected to do otherwise.
- Personal service:
- The enforcement request must be personally delivered to the violator,
- The enforcement pleadings must include an order for the violator to appear before the court on a certain date at a certain time.
- Capability to comply:
- The request for enforcement should include a general allegation that the violator was aware of the court order and capable of complying with its terms,
- The violator elected not to obey the court order.
- Definitive order – If a party is held in contempt by the court, the orders signed by the judge must be specific concerning:
- What order was violated,
- What the violator was ordered to do,
- How the violator failed to comply with the order,
- When the violator failed to comply with the order,
- A finding that the violator was capable of obeying the order but did not do so.
Child Support – Enforcement
Child support orders are generally the easiest of the court orders to enforce because they are usually very specific and there are several ancillary remedies available to assist with enforcement. Support orders usually include the amount to be paid, the first date upon which a payment is to be made, the date or dates upon which subsequent payments become due and the terms upon which the support payments terminate or are altered. Assuming the child support order includes the foregoing elements, the motion for enforcement would outline the dates upon which payments were due, what amounts were paid and what amounts remain unpaid along with a request that the violator be held in contempt, jailed, fined and be ordered to pay attorney’s fees.
Child Support Enforcement Orders
Texas law mandates that once a child support payment is due and is not paid it becomes an obligation that cannot be altered by the court. However, judges differ with respect to their philosophies concerning the types of child support enforcement orders to be entered and they have considerable latitude concerning the severity of the punishment to be levied. That means different judges may enter very different orders simply due to different policies concerning child support enforcement. Further, the circumstances of a particular case are very important and will affect the terms of the enforcement orders.
Child Support – Other Enforcement Tools
In conjunction with child support orders there are a number of ancillary enforcement tools. They include: 1) employer’s withholding orders, 2) notice of child support liens, 3) child support lien foreclosure suits and 4) license suspension proceedings.
Employer withholding orders are the most common of the child support enforcement tools. Typically, the employer’s order is entered in conjunction with a divorce or other suit requiring the payment of child support but may not be placed into effect until a later date. The employer’s order states that any business or person who employs the person who is obligated to pay child support has a duty to withhold the child support sums from the paying party’s wages. If the employer fails to withhold the child support sums, the employer may become liable to pay the amount owed.
If a third party is holding assets that belong to a person who is obligated to pay child support, a notice of child support lien can be delivered to that party thereby forcing them to freeze whatever assets that may be in their possession. This mechanism is helpful if there is a bank account held in the name of the paying party. A notice of lien can be sent to the bank to freeze the funds in the account and when an enforcement suit is filed the bank would be asked to release the funds to the person entitled to receive the support payments.
The Family Code states that a person who fails to make child support payments can lose all the licenses issued by the State of Texas. There are provisions that allow the paying party some latitude to be forewarned and given the opportunity to bring the payments up to date before suffering the loss of any privileges. However, if the paying party fails to comply, everything from a driver’s license to a professional license (medical, dental, law, etc.) can be suspended.
Child Possession Orders – Enforcement
Possession orders are sometimes more difficult to enforce than are child support orders because they may not be as specific. For example, in years past it was common for orders to state that a parent was entitled to “reasonable visitation upon reasonable notice” or possession on “alternate weekends” but not provide anything more specific concerning times or dates. Enforcement of those orders is very difficult because they are not specific and often the most a lawyer could accomplish for a client is the replacement of the vague order with a definitive order that can be enforced in the future.
On the other hand, if an order is definitive concerning the date, time and place possession of the child is to begin, the judge has authority to enforce its terms.
Delivery Of Property Or Money – Enforcement
The court has authority to enforce orders for the delivery of money or items of property. However, it is often more difficult to hold a violator in contempt and have the judge assess a jail sentence in such cases because the order to be enforced is usually not very specific. However, the court can assist with enforcement by entering a very definitive order that outlines step by step what is to be done by the violator and the timeframe within which the actions are to be completed. In conjunction with the detailed order, the judge can also enter a money judgment against the violator. Should the violator breach the detailed order, the court may have the authority to jail the recalcitrant party as well as levy other sanctions including attorney’s fees and court costs.
Enforcement Orders – What To Expect
As previously stated, enforcement orders can and do vary dramatically from judge to judge and from case to case. Even in the situations where the judge is locked to certain types of orders (i.e., a child support judgment) the law gives the judge considerable latitude concerning the types of enforcement provisions and severity of punishment to be levied.
From a litigant’s perspective, it is often important to secure some form of punishment for the past wrongful behavior and some measure of assurance that it will not be repeated in the future and thereby necessitate the expenditure of time and resources to pursue additional enforcement measures. Many judges handle those concerns by entering an order that holds the violator in contempt and levies a jail sentence for that misconduct but suspends the jail sentence and places the violator on a probation status as long as that person complies with the court’s orders.
A typical order in a child support case might state the violator is sentenced to 3 days in jail with the sentence suspended provided that the violator a) remains current with the child support payments, b) pays $XXX per month toward the arrearage, c) pays $YYY in attorney’s fees, d) pays $ZZZ in court costs and e) comes back to the court on a given date to report on what has happened.
A typical order concerning the refusal to allow possession of a child might state the violator is sentenced to 3 days in jail with the sentence being suspended provided that the violator a) allows possession of the child as ordered, b) pays $XXX attorney’s fees, c) pays $YYY court costs and d) comes back to the court on a given date to confirm that he/she has complied with the orders.
If an order is not specific enough to be enforced, the judge has the power to enter a very definitive order that can be enforced by contempt. Quite often a paragraph is included within a motion for enforcement requesting that the judge enter precise orders if there is any doubt about it being specific enough for enforcement purposes.
Judges expect their orders to be obeyed and are usually annoyed when parties elect to ignore them. For that reason, a litigant who has been the victim of misbehavior by another party can generally expect the judge to assist in securing compliance. However, due to the constraints within Texas law, jail time is not always available as punishment – even when the misconduct is malicious. For that reason and others, it is wise to hire an experienced attorney to pursue enforcement proceedings.