Betty Jean Ranford MENNER, Petitioner, v. William James RANFORD, Respondent, 487 S.W.2d 698

McGEE, Justice. This case involves the power of a trial judge to amend his prior judgment with regard to child support payments by increasing the monthly payments in the sum of $50 until the father’s delinquency in past payments of $2,000 has been paid in full. The sole question on appeal is whether the trial court’s finding that the divorced father was two thousand dollars in arrears for child support payments followed by an order that this amount be paid at the rate of fifty dollars ($50) per month was a valid and enforceable order. The court of civil appeals, Ranford v.

Ranford, at 475 S.W.2d 590, reversed the trial court and held that it was not a valid order. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court. The facts may be summarized as follows: On June 23, 1969, W. J. Ranford, Respondent, was granted a divorce from Petitioner, Betty Jean Ranford; she later remarried and her name is Menner. The divorce decree ordered Respondent to pay child support payments of $250 per month. At the time of the divorce custody of the three children was awarded to Petitioner.

When the oldest child became 18 years of age, Respondent filed this suit to reduce his support obligation to $150 per month. Petitioner countered with a motion that Respondent be held in contempt until certain arrearages in past due child support payments shall have been paid.

In the order appealed from, the trial court made certain findings of fact: (1) that the parties agreed that the child support should be reduced to $150 per month; (2) that Respondent “was not guilty of willful contempt of the order of this court for failure to make the child support payments under the original divorce decree, but (3) that he was two thousand dollars ($2,000) in arrears.” This order reduced the child support payments to $150 per month and ordered Respondent to pay an additional $50 per month until the arrearage of $2,000 had been paid in full.

We agree with the statement by the court of civil appeals that the wife’s claim for child support is not a debt. The father’s liability under an order requiring child support payments is not a personal judgment enforceable by execution or garnishment. The only remedy for enforcement of the order of child support payments is a civil contempt action.

Article 4639a, Vernon’s Texas Civil Statutes. Ex Parte Earl M. Hooks, 415 S.W.2d 166 (Tex.1967); Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957); Thompson v. Thompson, 371 S.W.2d 572 (Tex.Civ.App. 1963, n. w. h.); McDonald v. Mercantile Nat. Bank, 162 S.W.2d 991 (Tex.Civ.App. 1942, n. w. h.).

Based upon the cases cited above, and others, the court of civil appeals in this case erroneously held “that when the trial court refused to find appellant in contempt for failing to pay the arrearages the appellant’s legal liability therefor was extinguished.” Contempt has been characterized as the courts’ means of “enforcing obedience to their decrees.” Ex Parte Birkhead, 127 Tex. 556, 95 S.W.2d 953 (1936).

The order now under review is not a personal judgment for money, nor is it necessarily an attempt by any means to “enforce obedience to a decree.” Instead, it is an exercise of the court’s power, coexisting with the power to enforce by contempt, to alter a previous order. We quote

Article 4639a, Sec. 1, Vernon’s Texas Civil Statutes, in part, and emphasize the portions applicable here: “[The] court may by judgment, order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of eighteen (18) years, or, said court may enter a judgment in a fixed amount for the support of such child or children, and such court shall have full power and authority to enforce said judgments by civil contempt proceedings after ten (10) days notice to such parent of his or her failure or refusal to carry out the terms thereof, and for the purpose of ascertaining the ability of the parents of such child or children to contribute to the support of same, they may be compelled to testify fully in regard thereto, under penalty of contempt of court, as in other cases.

Said court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.” In Ex Parte Birkhead, supra, this court stated, regarding Art. 4639a: “In this regard, the court is given the power and authority to alter, change, and suspend such orders as the facts and circumstances and justice may require. Also, by the express terms of the statute, the only remedy for the enforcement of such orders is by civil contempt proceedings.” [Emphasis added].

We think it apparent that the exercise of the power to change, alter, or suspend is not dependent on a finding of willful contempt. An express finding that the father was not in willful contempt does not affect the court’s power to alter, change or suspend. The trial court, having before it the occasion to alter its previous order because of one child’s reaching the age of eighteen (18) years, acted by reducing the monthly amount set by its earlier order, and acted further by ordering future payment of the amount then in arrears.

We recognize that a common practice of the courts of this State is to allow one found in contempt of a child support order to purge himself by payment of the arrearage in lieu of confinement; however, we find no authority to the effect that such a finding of contempt is necessary in order for the court to consider the arrearage under a prior order, and alter the time at which that amount is due. An order such as the one here reviewed amounts to an accommodation to the delinquent father.

It is an alteration as the facts and circumstances and justice required, and, if in the future monthly payment on the arrearage as well as the current payments are not made, the order may be enforced by contempt. We hold that the provisions of Art. 4639a, Vernon’s Texas Civil Statutes, quoted above, fully empowered the trial court to alter its original judgment to permit payment of the arrearage by monthly payments in the sum of $50 per month until paid in full. We reverse the judgment of the court of civil appeals insofar as it altered the trial court judgment and affirm the judgment of the trial court.