Houson D. WILLIAMS, Petitioner, v. Sherry Yvonne PATTON, Respondent, 821 S.W.2d 141

OPINION COOK, Justice. This case presents the question whether

section 14.41(

a) of the Texas Family Code prohibits parents from settling claims for child support arrearages before the unpaid amount has been reduced to a final judgment. We hold that

section 14.41(

a) does prohibit such settlements. Therefore, we affirm the judgment of the court of appeals. 796 S.W.2d 526 (1990). Houson D. Williams and Sherry Yvonne Patton were divorced in 1974. Patton was named managing conservator of their only child, Amy Diane Williams, and Williams was ordered to pay $121 per month in child support. Williams failed to make his support payments between August 1977 and October 1985. On October 15, 1985, when Williams was $9,885 in arrears, Patton filed a motion for contempt for failure to pay child support, and a motion to modify child support.

While these motions were pending, Williams and Patton entered into a settlement agreement in which Williams promised to pay Patton $2,850 upon execution of the agreement and agreed to a modification of the divorce decree increasing the amount of his child support payments to $325 for the next 18 months and to $350 thereafter until the child reached the age of 18 years or was emancipated. In return, Patton agreed to release Williams from his obligation for the arrearages and also authorized and directed her attorney to obtain a dismissal of her contempt action with prejudice.

On May 13, 1986, the trial court signed an “Agreed Order Modifying Prior Order” and an order dismissing Patton’s contempt motion. The agreed order increased the monthly child support payments as provided in the settlement agreement but did not release Williams from his obligation for the child support arrearages. Neither of the court’s orders referred to the settlement agreement or acknowledged its existence in any way. Williams paid Patton $2,850 and complied with the terms of the agreed order for about a year and a half.

When Amy moved to Williams's home in November 1987, however, he discontinued all payments, in violation of the agreed order. In August 1988, Patton brought a second motion for contempt, citing Williams’s nonpayment of child support since November 1987 as well as his nonpayment of support from 1977 to 1985. Williams asserted the settlement agreement as a defense to the contempt action for the 1977-1985 arrearages and also filed an original petition alleging that Patton had breached the agreement by seeking to hold him in contempt for the 1977-1985 arrearages.

Patton cross-claimed for breach of the agreement, citing Williams’s failure to pay child support after November 1987. After a nonjury trial, the trial court held that the settlement agreement was void and rendered a take-nothing judgment on both parties’ breach of contract actions. The court also adjudged Williams to be in contempt and sentenced him to fifteen days in jail, but suspended imposition of the sentence. Williams appealed to the court of appeals, asserting that the agreement was enforceable and that he was entitled to specific performance of the agreement.

He conceded that, under the Family Code, parents cannot prospectively modify the amount of court-ordered child support payments without the approval of the trial court. See Tex.Fam.Code § 14.08(a) (modification of child support in a decree can only be accomplished by filing a motion in the court having jurisdiction of the suit affecting the parent-child relationship); see also Ex parte Colley, 621 S.W.2d 649, 651 (Tex.App.—Austin 1981, orig. proceeding); In re McLemore, 515 S.W.2d 356, 357 (Tex.Civ.App.—Dallas 1974, orig. proceeding).

However, he argued that parents may nevertheless legally agree to settle a claim for past unpaid child support. The court of appeals disagreed, holding that, under Texas Family Code

section 14.41, child support arrearages also remain under the supervision of the trial court and may not be modified by the parties without court approval until the court either (1) reduces the unpaid child support to written judgment or (2) loses jurisdiction. 796 S.W.2d at 530. Because neither of these conditions was met in this case, the court concluded that the settlement agreement was void and unenforceable and affirmed the judgment of the trial court.

Section 14.41(

a) of the Texas Family Code provides: Judgment for Past-Due Child Support Payments (

a) Judgment for Arrearages. A periodic child support payment not timely made shall constitute a final judgment for the amount due and owing. On the motion of an obligee or obligor, after notice and hearing, the court shall confirm the amount of child support in arrears and shall render judgment against an obligor for any amount of child support unpaid and owing. The judgment rendered by the court may be subject to a counterclaim or offset as provided by Subsection (

c) of this section. The judgment may be enforced by any means available for the enforcement of judgments for debts. Tex.Fam.Code § 14.41(a). In its opinion the court of appeals pointed out that the trial court is required to confirm the amount of arrearages before rendering judgment and, in doing so, must consider offsets as provided in

section 14.-41(c), although it cannot reduce or modify the amount of arrearages. 796 S.W.2d at 530. In addition, the court of appeals emphasized that 14.41(

b) set a time limit on the trial court’s jurisdiction to “enter judgment for past-due child support obligations.” Id. From a consideration of these provisions, the court concluded that the legislature intended for arrearages to remain under the supervision of the trial court until the court reduces the unpaid amount to written judgment or until the court loses jurisdiction. Thus, the court held that

section 14.41(

a) prohibits parents from contracting for payment of the ar-rearages without court approval until after the occurrence of either of those two events. We agree. The legislature intended that courts exercise independent judgment in matters affecting children, including the support obligation. In addition to denying the district court the authority to forgive child support arrearages under

section 14.41(d), the legislature has also prohibited self-help by the obligor and obligee in prospectively modifying court-ordered child support without court approval. Tex.Fam.Code § 14.-08(a). Furthermore, the legislature has expressly required that parental agreements concerning child support be approved by the court, which can accept or reject the agreement depending on whether or not it is in the child’s best interest. Tex.Fam. Code § 14.06(aHd).

These provisions of the Texas Family Code indicate that the legislature intended that the court closely supervise child support proceedings to guarantee that the best interest of the child is always considered. In addition to guaranteeing that the court closely supervise child support determinations, insisting that the arrearages be reduced to final judgment before the parties enter a settlement and release agreement accomplishes the primary purpose of

section 14.41(a). The purpose of

section 14.41(

a) is to provide a custodial parent with remedies for nonpayment of child support in addition to contempt. Once the custodial parent obtains a money judgment for the amount of arrearages, this judgment may be enforced by any means normally available to a judgment creditor. Requiring that the trial court reduce arrear-ages to a final judgment before the parties can enter into a settlement and release agreement shields the custodial parent from the financial pressures which frequently result when child support goes unpaid.

It is well documented that the years following divorce are generally very difficult financially for the custodial parent. See L. Weitzman, The Divorce Revolution 232 (1985); Cox, Economic Support of Children by Fathers Following Divorce, in The Parental Child-Support Obligation 157-58 (J. Cassetty ed. 1983). The economic hardships faced by the custodial parent can be attributed to numerous factors, including insufficient child care facilities, inflation and inadequate child support awards aggravated by frequent defaults.

Due to the financial hardships so frequently encountered by the custodial parent following divorce, the failure of the former spouse to pay court-ordered child support puts the custodial parent in a very difficult position. If the non-custodial parent offers to pay a portion of child support arrearages in settlement of the entire amount due, the custodial parent may be persuaded to accept the offer due to present financial difficulties and the possibility of further delay and expense in collecting the unpaid amount.

The dissent concludes, however, that the Family Code does not restrict the ability of parents to settle claims for arrearages.

Noting that the trial court has no authority itself to reduce or modify the amount of child support arrearages, the dissenting opinion states that forcing parents to reduce arrearages to judgment before they can modify the amount imposes an “unnecessary, time-consuming, and expensive procedure on parents reasonably desiring to compromise a debt for child support arrear-ages.” In characterizing this procedure as “unnecessary,” the dissenting opinion ignores the fact that requiring the reduction of arrearages to judgment helps ensure the payment of child support.

If non-custodial parents know that, at some future time, they can pressure the custodial parent into a settlement agreement releasing them from the obligation to pay arrearages, noncustodial parents will be tempted to forego the payment of child support until it becomes an unmanageable sum. The noncustodial parent can then take advantage of the financial pressures resulting from such arrearages to persuade the custodial parent to accept an offer of partial payment in settlement of the entire amount owed.

In doing so, non-custodial parents not only escape their duty to pay child support but profit from their own wrongdoing. By giving the non-custodial parent the opportunity to negotiate such agreements, the dissenting opinion would actually encourage the non-payment of child support. Encouraging the non-payment of child support would only exacerbate the problem of enforcing court-ordered child support which has been, and continues to be, a very significant problem. In 1985, the total amount of child support payments due nationwide was $10.9 billion, but payments actually received only totalled $7.2 billion. 1 U.S.

Dep’t of Health & Human Services, Office of Child Support Enforcement, Twelfth Annual Report to Congress for the Period Ending September SO, 1987 5 (1988). These figures just begin to show the magnitude of the problem. The procedure of reducing child support arrearages to final judgment is certainly not an unnecessary procedure and an expensive waste of time. Once the court confirms the amount in arrears and renders judgment for the amount owing, the obli-gee can enforce that judgment by any of the means available for the enforcement of judgments for debts, such as garnishment or attachment.

If the custodial parent then wishes to enter into a contract regarding the amount and method of payment by the obligor, the custodial parent does so having all of these additional remedies available. This places the custodial parent on more equal footing with the obligor when negotiating such an agreement and diminishes the likelihood that the parent will be wrongfully pressured into accepting partial payment of the full amount due.

In determining that public policy considerations do not require such settlement agreements to be invalidated, the dissenting opinion also distinguishes between future child support payments, which are obligations owed to the child, and past due child support payments, which are owed to the custodial parent. The dissent characterizes past due child support as an obligation belonging solely to the custodial parent, viewing the payment of past due support as nothing more than a reimbursement for amounts already expended for the support of the child.

The characterization of past due child support as a mere reimbursement for amounts already expended oversimplifies the true situation. The function of child support is to help a custodial parent maintain an adequate standard of living for the child. When child support payments are not made, the result is a loss of funds available for the child’s food, clothing, education, and home environment. It is a strong, long-standing policy of this state to protect the interests of its children, and this is the policy underlying the enforcement of child support obligations.

Characterizing arrearages as nothing more than a “debt” owed to the custodial parent ignores the reality that the child is frequently the one who has been harmed by nonpayment and it is the child’s interests which are ultimately sought to be protected. The payment of arrearages compensates for the wrong to the child at least as much as it reimburses the custodial parent for monies spent on the child.

Although the extent to which a child presently benefits from the payment of arrearages varies from case to case, past due child support is still more properly characterized as an unfulfilled duty to the child than a “debt” to the custodial parent. See Adair v. Martin, 595 S.W.2d 513 (Tex.1980) (stating that unpaid child support is not characterized as a debt, even though it can be reduced to judgment and enforced in the same manner as a debt).

The dissenting opinion cites several decisions from other jurisdictions which distinguish between agreements regarding future child support payments and those regarding arrearages. However, some recent decisions do not allow parents to contractually modify the amount of arrearages without court approval. See, e.g., McCool v. State ex. rel. State of Tenn., 560 So.2d 772, 774 (Ala.Civ.App.1990) (holding that agreements to waive child support arrear-ages are a “nullity,” noting that it is “well settled” in Alabama that parents cannot nullify a child support court order by mutual agreement); Goodpasture v.

Goodpasture, 7 Va.App. 55, 371 S.E.2d 845, 847 (1988) (holding that past due support installments become vested as they accrue and are immune from change, and parties cannot by contract, acquiescence, or waiver modify the terms of a support order without court approval).

The dissenting opinion incorporates the remarks of one commentator who, when reporting on the court of appeals decision, refers to this case as “silly.” This court does not view any case involving the protection of a child’s best interest as “silly.” Considering the comprehensive provisions of the Family Code intended to protect the children of this state, the legislature did not take this matter lightly. The dissent implies that a situation in which a noncustodial parent has failed to pay child support for over eight years should be treated with levity.

The best interest of the children of Texas is now and always will be treated by the courts of this state as a matter of the greatest importance. Requiring that the trial court reduce arrearages to a final judgment before such agreements can be entered into protects the interests of the child by encouraging the payment of child support and protects the interests of the custodial parent by equalizing the bargaining positions of the parties. For these reasons, we affirm the judgment of the court of appeals. DOGGETT, J., concurs, joined by MAUZY, J. CORNYN, J., concurs.

PHILLIPS, C.J., dissents, joined by GONZALEZ and HECHT, JJ. .In pertinent part, the settlement agreement provides: [I]n consideration of the payment of the sum of $2,850.00 by HOUSON D. WILLIAMS, JR. to SHERRY YVONNE (WILLIAMS) BAILES, payable in full upon the execution of this agreement, and for the further consideration of the agreement of HOUSON D. WILLIAMS, JR. to an Agreed Order Modifying Prior Order whereby the Decree of Divorce of December 2, 1974, shall be modified in certain respects, including increasing the support payment by HOUSON D.

WILLIAMS, JR. for the use, benefit and support of AMY DIANE WILLIAMS to the amount of $325.00 per month for eighteen (18) months ... and thereafter in the amount of $350.00 per month until the said child reaches the age of eighteen (18) years ... SHERRY YVONNE (WILLIAMS) BAILES does hereby RELEASE AND DISCHARGE HOUSON D. WILLIAMS, JR.... of and from any and all claims, demands, damages, actions, causes of action ... arising from the obligation of HOUSON D. WILLIAMS, JR. for the payment of child support ... for the period from and after December 2, 1974 to March 31, 1986.

SHERRY YVONNE (WILLIAMS) BAILES simultaneously by these presents does hereby authorize and direct her attorney to execute and deliver for entry such instruments as may be necessary to obtain dismissal of the Motion for Contempt for failure to pay child support above mentioned, with prejudice to her ever refiling the same for any claim for child support for the period between December 2, 1974 and March 31, 1986.... . This dismissal was without prejudice. . Williams also filed a motion to modify the divorce decree. The trial court denied this motion and the court of appeals affirmed.

In his petition to this court, Williams does not challenge this part of the court of appeals’ judgment. . In his petition, Williams conceded that the contempt order was itself not reviewable on appeal. See Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967). However, he argued that granting him specific performance of the agreement would necessitate "disposing” of the contempt proceedings, in addition to other relief. . At the time of the trial court judgment in 1988, Family Code

section 14.41(

b) provided that the trial court retained jurisdiction until two years after the child reached majority or two years after the date on which the child support obligation terminated pursuant to the decree or order or by operation of law. See Act of May 27, 1985, 69th Leg., R.S., ch. 232, § 9, 1985 Tex.Gen.Laws 1158, 1163 (eff. Sept. 1, 1985), amended by Child Support Enforcement Act of 1986, 69th Leg., 2nd C.S., ch. 10, § 6, 1986 Tex.Gen.Laws 15, 17 (eff. Jan. 1, 1987). The current version of

section 14.41(

b) extends the time limit from two years to four years. Tex. Fam.Code § 14.41(b).